Pierce v. Kennedy

• Decision Date: 02 November 1891
• Citation: 2 Wash. 324,28 P. 35
• Parties: PIERCE ET AL. v. KENNEDY ET AL.
• Court: Washington Supreme Court

28 P. 35

2 Wash. 324

PIERCE ET AL. v. KENNEDY ET AL.

Supreme Court of Washington

November 2, 1891

Motion for rehearing and for modification of judgment in the case of James S. Pierce and others against Joseph R. Kennedy and others. Rehearing denied. The order directing the court below to dismiss the action, vacated, and the cause remanded with directions to overrule the demurrer to the answer, and proceed according to law. For a statement of facts, see 26 P. 554.

ANDERS, C.J.

On the trial of this cause in this court the argument of counsel was directed solely to the question of the littoral rights of owners of land bordering upon the shores of an arm of the sea, in which the tide ebbs and flows, and our decision was based upon the supposition that the buildings and improvements of appellants, complained of, were below high-water mark. We find no argument or authority presented in the petition for rehearing sufficient to induce us to change our opinion upon that question, and therefore decline to grant a rehearing. But after a further examination of the pleadings we are inclined to believe that the order directing a dismissal of the action should not have been made. Counsel for appellees state in their petition that appellees had no intention of bringing any suit or action except for the land above high tide, and owned by them, and we think the complaint may fairly be construed to support the assertion. Certain issues of fact seem to be raised by the complaint and answer, which appellees have a right to have tried in the court in which the action was brought. The order directing the court below to dismiss the action will therefore be vacated, and the cause remanded to the court below with directions to overrule the demurrer to the answer, and to proceed according to law.

HOYT, STILES, SCOTT, and DUNBAR, JJ., concur.