Shelton Logging Co. v. Gosser

• Decision Date: 13 September 1901
• Court: Washington Supreme Court
• Parties: SHELTON LOGGING CO. v. GOSSER ex ux.

66 P. 151

26 Wash. 126

SHELTON LOGGING CO. v. GOSSER ex ux.

Supreme Court of Washington

September 13, 1901

Appeal from superior court, Mason county; Charles W. Hodgdon, Judge.

Action by the Shelton Logging Company, a corporation, against John W. Gosser and wife. From a judgment in favor of defendants plaintiff appeals. Affirmed.

Haight & Owings and S. P. Richardson, for appellant.

Troy &amp Falknor, for respondents.

WHITE J.

The evidence in this case is not brought up with the record. The facts appear from the pleadings and findings. On the 12th of December, 1896, the state of Washington contracted to sell to Ellis & Reed tide lands described as follows 'All the tide lands lying in front of, adjacent to, or abutting on lots numbered 2 and 3, section 2, township 20 north, of range 3 west, Willamette meridian.' It appears by the findings that the plat of the survey of lot 2 returned by the surveyor general to the general land office bounds lot 2 on the water side as follows: 'Beginning at the meander corner to sections 2 and 35 on the north boundary of township 20 N., R. 3 west, W. M., which corner is 5.00 chs. west of standard corner, to sections 35 and 36, T. 21 N., R. 3 west; thence with meanders in section 2, S., 49 1/2~ E., 2.60 chs.; S., 72~ E., 7.40 chs.; N., 77~ E., 3.40 chs.; S., 25~ E., 4.39 chs.; S., 51~ W., 2.46 chs.; S., 49~> W., 3.14 chs.; S., 37~ W., 8.05 chs.; S., 49~ W., 3.39 chs.; S., 40~ W., 3.95 chs.' This contract, by assignment, became the property of the appellant. The assignors of the appellant, under said contract, entered into possession of the property contracted to be sold about the time the contract was made, and the appellant and its assignors have ever since used the same for booming purposes in connection with logging operations. Part of such booming works has been upon that portion of the land shown by the shaded surface between lines 3-4, 4-7, 7-8, and 8-3 in the annexed plat. Over this the tide regularly ebbs and flows. The following is a plat of said lot 2:

(Image Omitted)

The black lines represent the boundaries of lot 2 according to the United States government field notes. The shaded part over which the tide ebbs and flows has been used by the respondents at low tide to haul hay over, and for the purpose of driving their stock and cattle over and upon from their barn and stable on the south side of Campbell creek to the north side of said creek, and they so used the same prior to the building of the boom. The building and maintenance of the boom prevent the free use of the land by the respondents. On the 20th of January, 1892, the United States by patent granted said lot 2, section 2, township 20 N., of range 3 W., W. M., to John W. Gosser, one of the respondents. That part of the meander line, 1-8 on the plat, is practically along the line of vegetation, and is the line of mean high tide. The line 8-3 on the plat is the mean high-tide line and the line of vegetation. The space as shown in the plat included between lines 1-2, 2-3, 3-8, 8-1, has grass growing thereon, and for several years hay has been cut and cured thereon. The same has been used for pasturage. Ordinary high tide does not overflow said part, and this part is not tide land. The line 6-7 in the plat is practically along the line of vegetation, and is the mean high-tide line. The line 7-4 is the mean high-tide line and line of vegetation. That part of the area south and east of the line 6-7-4 is never covered by high tide. The area between lines 3-4, 4-7, 7-8, and 8-3 is overflowed at high tide. At low tide it is bare, except where Campbell creek flows through. Where the creek runs it has a depth at low tide of three or four inches, and is about twenty feet wide. Lines 6-7-8-1 are the meander lines of said lot 2, section 2, township 20 N., range 3 W., W. M. The respondents have attempted to prevent appellant from using said tract designated on the plat 3-4, 4-7, 7-8, 8-3, for booming purposes, and have threatened to prevent its use by appellant in the future for such purposes. The court found that the appellant had no right, title, or interest in and to any of the lands above and on the shore side of the said meander line in front of said lot 2. The court further found that appellant's title in said tide lands ends at said meander line; that the tide lands of the appellant do not extend within or above on the shore side of said meander line. Judgment was entered dismissing the action. From the findings it appears that the court held that this was an action to quiet title to the land above and on the shore side of said meander line, and, inasmuch as the appellant had no title to such lands, the action was dismissed.

There are twelve assignments of error, but they may all be resolved into one proposition: Had the appellant any title to land within the calls of lot 2, so as to be entitled to a decree quieting its title? This action, in the main, is clearly one to quiet title. The injunctive relief prayed for is a mere incident. In the absence of a statute, the general rule is that one must be in possession of the premises before he can successfully invoke the aid of equity to determine his estate. Section 5521, Ballinger's Ann. Codes & St., is but a reaffirmance of this rule. This section provides that 'any person in possession * * * of real property * * * may maintain a...