Pierce v. Kennedy

• Decision Date: 13 March 1891
• Citation: 2 Wash. 324,26 P. 554
• Parties: PIERCE ET AL. v. KENNEDY ET AL.
• Court: Washington Supreme Court

26 P. 554

2 Wash. 324

PIERCE ET AL. v. KENNEDY ET AL.

Supreme Court of Washington

March 13, 1891

Appeal from superior court, Pierce county.

Calkins & Shackelford, for appellants.

Ballard & Norris, for appellees.

ANDERS C.J.

The facts in this case are substantially the same as those presented in the case of Eisenbach v Hatfield, ante, 539, and by agreement of counsel the two cases were argued and submitted together; and, for the reasons given in the opinion filed in that case, the judgment of the court below should be reversed. But there is an additional reason why appellees cannot prevail in this action. They alleged in their complaint, substantially, that they were the owners of certain lots in the city of Tacoma bordering upon the waters of Puget sound; that appellants, at a certain time mentioned in the complaint, willfully maliciously, and unlawfully, and without their consent, took possession of the same, erected buildings thereon, and occupy the same; that they demanded possession of said premises from appellants, who refused, and still refuse, to deliver the same to plaintiffs, to their damage in the sum of $1,000; and praying for possession of the said premises, and for $500, as attorney's fees, to be taxed as costs, and for further relief. Appellants, defendants below, filed an answer denying the allegations of the complaint, and setting up, as an affirmative defense to the action, that they were occupying the shore between high and low water mark opposite part of the premises described, and that the part of the said shore so occupied by them is within one mile of the corporate limits of the city of Tacoma, and that the title to said shore between high and low water mark is vested in the state of Washington, and by the constitution of said state is reserved from sale, and that the state has power and right to dispose of the possession of said land, and that the plaintiffs have acquired no right to the possession thereof, by lease or otherwise, from the state. Plaintiffs interposed a general demurrer to this answer, which was sustained by the court, and judgment rendered thereon for plaintiffs, from which judgment defendants appeal. We are of the opinion that, upon the pleadings in this case, judgment should have been rendered for defendants. The remedy, if any, of plaintiffs, was in equity, and not by an action in the nature of ejectment. The judgment of the court below must be...