Skansi v. Novak

• Decision Date: 05 February 1915
• Docket Number: 12412.
• Citation: 146 P. 160,84 Wash. 39
• Parties: SKANSI et ux. v. NOVAK et al.
• Court: Washington Supreme Court

146 P. 160

84 Wash. 39

SKANSI et ux. v. NOVAK et al.

No. 12412.

Supreme Court of Washington

February 5, 1915

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by Peter Skansi and wife against John Novak and others. Judgment for plaintiff, and defendants appeal. Reversed, with directions.

J. W A. Nichols, of Tacoma, for appellants.

J. W Selden and W. A. Johnson, both of Tacoma, for respondent.

ELLIS J.

This is an action to quiet title to a small tract of land lying between lot 4 in block 2 of the town of Millville, in Pierce county, and the government meander line of Puget Sound. The plaintiffs claim title by adverse possession; the defendants by mesne conveyances from the United States. There is little dispute as to the facts. The only real controversy arises from inferences which the contending parties seek to draw from the facts. Since we are forced to a conclusion contrary to that reached by the trial court, we shall state the evidence at a length which would otherwise be unnecessary.

The land covered by the present town site of Millville passed by patent from the United States in 1869, long prior to the adoption of the state Constitution. The patent therefore carried title to the government meander line, which included a strip of tideland of varying width along a large part of the water front of the present town site.

In June, 1888, the defendants, who, it is admitted, then owned the upland and this bordering strip of tideland, by a plat legally executed and recorded, laid out upon the upland only the town of Millville. This left in front of the shore line proper of lot 4 in block 2 an unplatted strip of tideland 50 feet wide, 47 feet along its northerly border, and approximately 76 feet along its southerly border, which would have been included between the northerly and southerly lines of the lot, had they extended to the government meander line. This is the tract in controversy.

In July, 1888, the defendants Novak, who, it is admitted, had in the meantime acquired full title to lot 4 in block 2 conveyed that lot by description according to the recorded plat, and by direct reference thereto, to one Patrick.

Patrick's testimony, which is mainly relied upon as establishing plaintiffs' title by adverse possession, was, in substance: That he had no recollection that any one so represented, but he supposed when the bought the lot that 'it ran from the street to the bay.' That he supposed he bought 'to the water.' That he did not know where the meander line was, and does not know where it is now. That he did not remember that anything was said to lead him to believe he was buying to the meander line only. 'I supposed I was buying to the water.' That the water was what he was after. That he wanted to put a boat shop there. That he cleared the lot, built a house on it, and built a boat shop and a float on the tidelands below the bank--on the strip in dispute. That he lived in the house and occupied and used the boat shop and float for about 18 years. That Novak lived in the next block all of the time. That the defendants never said anything to the witness about getting off the tidelands. The nearest approach that Patrick made to any actual claim of ownership of the tideland strip is found in the following, which we quote from his testimony, as set out in the abstract:

'Question: When you took possession of that, did you claim to own that out to the water [146 P. 161] there, to the government line? Answer: I suppose I did; yes, sir.

'Question: All the time you were in possession of this property there, Mr. Patrick, you claimed to own it, did you? Answer: I did.

'Question: Did you speak to people around there about your ownership of that property? Did you ever say anything to anybody about it? Answer: I don't think so. I don't remember that I did. I sold the property to Mr. Curtis. He lives at Gig Harbor. He took possession of the property and lived there a year or two.

'Question: Do you know, Mr. Patrick, whether Mr. Curtis, when he took possession there, took possession of all the property down to the meander line that you sold to him? Answer: I suppose he did; yes, sir. I suppose he took possession of all the property I sold to him.

'Question: Now, when you sold to Mr. Curtis, what did you sell to him? Answer: Why, I sold that lot 4; the same property I bought from Novak. * * *

'Question: At the time you bought there, Mr. Patrick, was there any other line there, excepting the government meander line, that you knew anything about? Answer: I didn't know of any other line. I didn't know there was a meander line. I didn't know anything about the meander line. I supposed I bought to high water or bought out to the water.

'Question: At the time you bought, you didn't know about any line, excepting the water line? Answer: No, sir.

'Question: Now, what do you mean there by the 'water line,' Mr. Patrick? Answer: Well, I meant where the high tide generally comes, or about there.

'Question: Where the high tide comes? Answer: Yes, sir.

'Question: Then you refer to the water line there, and where you thought you were buying to, you mean the high tide line? Answer: Yes, sir; I thought I bought all above the water.

'Question: All above the water. That includes--you mean that includes within where you had your boat shop? Answer: No; my boat shop was outside of that altogether.

'Question: When you built there, Mr. Patrick, you built it there, claiming[84 Wash. 42] that that was your property, did you? Answer: Why, I supposed that all in front of me was my own at that time. I didn't know--as to the tidelands I didn't know where they came to, or I didn't know where the meander line was.

'Question: During those 18 years there was nothing occurred that made you change your mind, was there? Answer: No, sir. * * * I bought for the purpose of having a shop there and building boats. I supposed it was all mine. I would not have bought the lot unless I could have got the water.

'Question: When you were talking with Mr. Skansi about selling the property to him, did you say anything to him (Mr. Skansi) about how far he would own if he bought? Answer: No; I think not.'

On cross-examination he testified that the house he built to live in was on the bank, 50 or 60 feet above the shore line, and qualified his former answers as follows:

'Question by Mr. Nichols: Isn't it a fact that, in buying that land to reach to the water, you bought down to the water, and you thought all the tidelands belonged to the government, and, if you had a lot abutting on the water, anybody could build a float or wharf or anything else they wanted to, and that is the reason you thought you would have the use of the tidelands, isn't it? Answer: Yes; I supposed that if I owned the property above, I supposed I had the right to the tidelands; that is what I supposed.

'Question: What you were buying from John, was down to the water? Answer: Yes, sir.'

On October 15, 1907, Patrick and wife sold and conveyed the lot to one Curtis and wife and by the following description:

'Lot four (4) of block two (2), town of Millville, according to the recorded plat thereof on file in the auditor's office of Pierce county, Washington.'

At that time Patrick removed his boat shop and float. Since then the strip in controversy has not been used by any one, except as a boat landing, with a small impermanent float.

Curtis testified that he made the purchase through Magoon, Patrick's agent, and never talked with Patrick about it. When asked what conversation he had with Magoon, he answered:

'I asked him about the house. He said there was no underpinning under it. I asked him how much land there was to it. He said there was supposed to be fifty by two hundred seventy (I think) five, or something like that. I never measured it or saw it measured. He said, 'Whatever the deed calls for is yours.''

These figures are approximately the same as the measurements of the lot, as shown upon the recorded plat. Magoon also told Curtis that, so far as he knew, the lot ran to the meander line.

On September 3, 1909, Curtis and wife sold and conveyed the lot to the plaintiff Peter Skansi by the same description as that contained in the deed from Patrick to Curtis. Curtis further testified that he never made any representation to Skansi as how far the lot extended.

Peter Skansi testified that Curtis never lived on the lot but 'rented it to a storekeeper'; that he (Skansi) bought the property through Magoon, as the agent of Curtis; that he had no talk with Magoon, except as to the price; that he thought he was buying lot 4, block 2, 'down to the government meander line'; that he did not take possession but has continued to rent the property; that neither he nor the tenant ever used the tideland strip in controversy, 'but I always took it as mine.' He testified that Patrick's boat shop extended 30 or 40 feet over the tideland; and the float still further.

The foregoing is the full purport of the relevant testimony introduced on behalf of the plaintiffs. It is true that three or four other witnesses, who had brought other lots from the defendants, testified that the defendants represented to them that their lots extended to the meander line. However potently probative...