Roe v. Walsh

• Decision Date: 25 October 1913
• Citation: 76 Wash. 148,135 P. 1031
• Parties: ROE et ux. v. WALSH et ux.
• Court: Washington Supreme Court

135 P. 1031

76 Wash. 148

ROE et ux. v. WALSH et ux.

Supreme Court of Washington

October 25, 1913

Department 1.Appeal from Superior Court, King County; King Dykeman Judge.

Action by L. W. Roe and wife against Charles M. Walsh and wife.From a judgment for plaintiffs, defendants appeal.Reversed and remanded for further proceedings.

Totten & Rozema, of Seattle, for appellants.

Lewis &amp Levine, of Seattle, for respondents.

MOUNT J.

This action was brought to recover possession of the north four feet of lot 11, block 5, Nagle's addition to the city of Seattle.The defendants answered the complaint admitting the legal title to be in the plaintiffs, and alleged by way of cross-complaint that they were the owners of a strip of land 21.6 inches wide on the north side of lot 11; that they were entitled to an easement upon a strip of land about 12 feet wide along the north side of lot 11; and also to an easement for light and air on account of a building erected upon the south half of lot 10.The plaintiffs thereupon filed a motion for judgment upon the pleadings.Upon the hearing thereof, it was stipulated that the motion should be considered as a demurrer to the cross-complaint.The lower court sustained the demurrer.The defendants elected to stand upon their cross-complaint and a decree was entered in favor of the plaintiffs.This appeal is prosecuted from that decree.

The cross-complaint is quite lengthy.We deem it unnecessary to set it out verbatim, but will state the substance of the allegations.Lots 10, 11, and 12 are situated in the southeast corner of block 5.These lots face to the east on Twelfth avenue.The lots extend to the center of the block; there is no alley in the block.For several years prior to July, 1902, one Winquist and wife were the owners in fee of the south half of lot 10, which was near the middle of the row of lots on the east side of the block; and also the owners of lots 11 and 12.Lot 12 is at the southeast corner of the block.Some time prior to July, in the year 1902 Winquist and wife erected a three-story frame building on the south half of lot 10, together with a 42-inch walk along the south side of it.This building was entirely upon the south half of lot 10, except that the outermost eaves on its south side extended 21.6 inches over lot 11.The walk along the side of the house also covered that much space on lot 11.Each of the stories of this building is a so-called flat, having separate entrances.The two upper flats have their main entrances at the front of the building on Twelfth street.The lower flat has its entrance on the south side of the building, some 30 feet or more back from Twelfth street, and is reached by way of the walk.Before constructing this building, Winquist and wife had the premises surveyed by a surveyor.According to the survey, the south line of the walk and the outermost eaves of the building did not extend over the south line of lot 10.As a matter of fact, the line between lots 10 and 11, as established by the surveyor, was 21.6 inches south of the true line.The sidewalk and the eaves of the building therefore extend that distance over the true line of lot 10 onto lot 11.On the 3d day of July, 1902, Winquist and wife conveyed the south half of lot 10 with its appurtenances to one Alonzo Lord.The interest so conveyed afterwards became vested through mesne conveyances in the defendants.Mr. Lord and his successors in interest have been in the continual possession of said strip of land and the building, and it is now in the possession of the defendant.At the time of the conveyance by Winquist and wife, to Mr. Lord, it is alleged that 'it was believed by them, and represented to the purchaser by them, that the building on said south half of lot 10, and the walk on the south side thereof, did not extend beyond the south line of said lot 10, and the purchasers of said premises and the subsequent owners thereof, including the defendants, believed such to be the fact, and the defendants did not ascertain the true dividing line between said lots 10 and 11 until about the 1st day of June, 1911.'

It is argued by the appellants that these facts show a right of possession in the appellants to this strip of ground 21.6 inches wide on lot 11 extending from Twelfth street back to the end of the building constructed, as hereinbefore stated, upon the south half of lot 10.As sustaining this position, we are cited to the rule in Turner v. Creech,58 Wash. 439, 108 P. 1084;Windsor v. Sarsfield,66 Wash. 576, 119 P. 1112;Rowe v. James,128 P. 539;andCampbell v. Seattle,59 Wash. 612, 110 P. 546.In the Turner Case, which was a case somewhat similar to this one upon the facts stated, we said: 'The location of a line by a common grantor is binding upon the grantees.(Citing a number of cases.)'On page 444 of 58 Wash., at page 1086 of 108 Pac., we said: 'Practical or agreed location of a boundary line may result from long acquiescence in its location, or when drawn and acted upon by the parties, as where valuable improvements are placed with reference to it and before it is denied by either party.5 Cyc.

930 et seq.'In the Windsor Case, where land was sold, and incorrect boundaries pointed out, where the vendee went into possession and erected near the line on the land in dispute valuable improvements, we held that the vendor was estopped to recover possession of the disputed tract (quoting fromTurner v. Creech,supra, andFlynn v. Glenny, 51 Mich. 580, 17 N.W. 65).

We think the rule in these two cases is conclusive of the question here, because it is alleged that Winquist and wife who were common owners of the property at the time it was sold to the predecessors in interest of these appellants, believed and represented to the purchasers that the building and walk did not extend beyond the line of lot 10.The purchasers of the premises and the subsequent owners, including the defendant, did not ascertain the true dividing line until the 1st day of June, 1911, after the valuable improvements had been placed upon the property.It is plain, we think, if this allegation is true, that Winquist and wife could not now recover the possession of this strip of land 21.6 inches wide extending from the street to the rear of the building.These respondents are in no better position than the common grantors, Winquist and wife.While it is true that there is no allegation in the cross-complaint that any easement was conveyed upon any other lot than the south half of lot 10 described in the deed, yet Winquist and wife had erected the building upon the south half of lot 10 and had extended the roof thereof 21.6 inches over onto lot 11, and had represented to the purchasers of that building and lot that the building was wholly upon lot 10.They, therefore, cannot now be heard to say, nor can their grantees, who purchased with notice of the fact that the building is located where it is, be heard to say, that the building is not wholly upon lot 10.On this branch of the casewe think the lower court was in error in holding that the cross-complaint did not state...