Priestley Min. & Mill. Co. v. Lenox Min. & Development Co.

• Citation: 41 Wn.2d 101,247 P.2d 688
• Decision Date: 21 August 1952
• Docket Number: No. 32016,32016
• Court: United States State Supreme Court of Washington
• Parties: PRIESTLEY MIN. & MILL. CO. v. LENOX MINING & DEVELOPMENT CO.

Page 101

41 Wn.2d 101

247 P.2d 688

PRIESTLEY MIN. & MILL. CO. v. LENOX MINING & DEVELOPMENT CO.

No. 32016.

Supreme Court of Washington, Department 2.

Aug. 21, 1952.

George F. Ward, W. W. Felger, Seattle, for appellant.

Tracy E. Griffin, Kenneth P. Short, Paul R. Cressman, Seattle, for respondent.

OLSON, Justice.

Defendant has appealed in this forcible detainer action brought to obtain possession of eighteen mining claims. The claims were located by defendant in 1940, and are contiguous to a group of twenty-seven claims it previously had located and leased to plaintiff. The entire group of forty-five claims is situated in a mountainous area. They are located in five rows of nine claims each. Those in the most northerly and the most southerly rows are the eighteen involved in this case.

The court found that, since 1942, plaintiff was in 'peaceable and undisturbed physical or constructive possession' of each of the forty-five claims; that defendant unlawfully entered upon the nine most northerly claims during plaintiff's absence; that defendant's entry was made under a wrongful claim of ownership, and was contrary to plaintiff's rights under its lease of the twenty-seven claims, which had been extended to include the eighteen claims; that defendant refused to surrender possession to plaintiff for more than three days after proper demand, and was guilty of forcible detainer.

Judgment was entered restraining defendant from entering the claims except for purposes permitted under the lease. It was ordered that a writ of restitution issue and that plaintiff recover one dollar and costs. The nominal sum was awarded because the court found that the claims had some rental velue for the period of defendant's possession the amount of which could not be determined from the evidence.

Counsel are in agreement that this is a forcible detainer action under Laws of 1891, chapter 96, § 2, p. 179 [cf. Rem.Rev.Stat. § 811(2) and RCW 59.12.020(2)]:

'A person is guilty of a forcible detainer * * * (2) Who in the nighttime, or during the absence of the occupant of any real property unlawfully enters thereon, and who, after demand made for the surrender thereof, refuses for the period of three days to surrender it to the former occupant. The occupant of real property within the meaning of this subdivision is one who, for the five days next preceding the unlawful entry, was in the peaceable and undisturbed possession of the real property.'

Defendant submits that, in such an action, questions of title and right to possession are excluded from consideration, and that the only questions there can be are whether plaintiff was in actual possession of the claims and, if so, whether defendant disturbed that possession. This court has often stated that such is the rule. The statute is one enacted to prevent violations of the peace in disputes over the possession of real estate, regardless of the claim of right or title under which the entry is made. Gore v. Altice, 1903, 33 Wash. 335, 74 P. 556; Randolph v. Husch, 1930, 159 Wash. 490, 294 P. 236, and cases cited. See Commercial Waterway District No. 1 v. Larson, 1946, 26 Wash.2d 219, 228, 173 P.2d 531. Plaintiff need only show that it was in the actual peaceable and undisturbed possession of the property for five days next preceding defendant's entry. RCW 59.12.140 [cf. Rem.Rev.Stat. § 825]; Randolph v. Husch, supra, p. 495.

Defendant argues that plaintiff failed to prove that it was in actual possession of the claims. We do not agree with this contention. The entire group of forty-five contiguous claims was treated by plaintiff and defendant as one tract of land. For many years, plaintiff did the development and assessment work required to hold the forty-five claims. Plaintiff built a camp on the north nine claims, and its employees were on these claims daily, when plaintiff was working on any of the claims in the group. Even though the south nine claims were seldom visited by anyone, they, too, were part of the single tract the entire group composed.

Plaintiff's possession was actual in the same sense that any tract of land defined by definite boundaries, be it a farm or a group of contiguous mining claims in a mountainous area, as are these, is possessed or occupied by the farmer or miner. Actual continuous physical presence on each portion of a tract of land is not required to establish the possessory right the cited statute is intended to protect. Some actual physical control, with the intent and apparent purpose of asserting dominion, is sufficient. Randolph v. Husch, supra, 159 Wash. at page 496, 294 P. 236. In fact, defendant's answer, asserting plaintiff's possession of twenty-seven of these claims under the lease, appears to be based upon this same rule.

The entire group of...