Rossi v. Sophia

Citation163 Wash. 173,300 P. 522
Decision Date22 June 1931
Docket Number22699.
PartiesROSSI v. SOPHIA.
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Action by Tony Rossi against Frank Sophia (Sofia). Decree for plaintiff, and defendant appeals.

Affirmed.

Clay Lawrence, of Port Orchard, for appellant.

Marion Garland, of Bremerton, for respondent.

BEELER J.

The respondent, on March 18, 1918, acquired by deed from one Stewart and wife a part of the southeast quarter of the northwest quarter of the northwest quarter of section 11 township 23 north, range 1 east, W. M., in Kitsap county excepting 'that portion lying easterly of a line parallel to and ten (10) feet west of the present course of Black Jack Creek.'

The appellant, on February 11, 1927, acquired from the same grantors that part of the ten-acre tract excepted from the deed to the respondent, the boundary line being described in identical words.

The appellant, claiming that the boundary line intended by the words of the description was a line ten feet west of the west bank or margin of the stream, began the erection of a fense thereon. The respondent, contending that the line intended was a line ten feet west of the thread of the stream, brought this action to enjoin the building of the fence and further trespassing upon the strip of land in dispute, and for damages. The decree was for the respondent as prayed, with nominal damages, and this appeal was taken from that decree.

The question to be decided is: What was the line intended to be described by the words 'a line parallel to and ten (10) feet west of the present course of Black Jack Creek'? Black Jack creek is a shallow, meandering, nonnavigable stream, the width of which averages about twenty feet. The trial court held that the boundary line of these adjacent tracts was ten feet west of the center line of Black Jack Creek, and not ten feet west of the West bank of the stream.

No case has been called to our attention, and our search has discovered none, wherein the 'course' of a stream used to indicate the location of a line, has been defined. In Attorney General v. Paterson & Hudson River R. R. Co., 9 N. J. Eq. 526, 550, it was said by the chancellor that the 'course of the river' is a line parallel with its banks, which seems an extraordinary statement since the two banks of a stream very seldom if ever are parallel, and a line parallel with two other lines anot themselves parallel is impossible. But whatever idea the learned chancellor meant to convey, the case is of no value here because the phrase 'course of the river' was used there to indicate direction, but the location of a boundary line.

But so far as the meaning of words is concerned, we have no difficulty in concluding that 'course of Black Jack Creek,' as used in the description under consideration, means precisely the same as the phrase 'water course known as Black Jack Creek' would have meant had it been used. 'Course' is from the Latin 'cursus,' a running. Water course' is English for the Latin 'cursus aquae,' as used by judges and legal writers of an earlier generation. The nontechnical meaning of water course is 'a stream of water; river; brook.' The more common legal meaning is the same: 'A stream usually flowing in a definite channel, having a bed and banks.' Hence, 'course of Black Jack Creek,' intending a line, means simply the stream itself.

Now, if the stream itself had been made the boundary, it cannot be doubted that the precise line would have been the thread of the stream. State ex rel. Davis v. Superior Court, 84 Wash. 252, 146 P. 609; Angell on Watercourses (7th Ed.) § 10 et seq. But instead of making the stream the boundary, the parties designated 'a line parallel to and ten (10) feet west of' the stream, which can only mean a line parallel with and ten feet west of the thread of the stream. Why the parties did this is immaterial, and we do not know and cannot inquire, for there is no ambiguity, either patent or latent, in the language employed in their writings.

The appellant complains that he was not permitted to bring into the action as defendants the...

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