Tacoma Bldg. & Sav. Ass'n v. Clark

• Decision Date: 23 February 1894
• Citation: 8 Wash. 289,36 P. 135
• Court: Washington Supreme Court
• Parties: TACOMA BLDG. & SAV. ASS'N v. CLARK ET UX.

36 P. 135

8 Wash. 289

TACOMA BLDG. & SAV. ASS'N v. CLARK ET UX.

Supreme Court of Washington

February 23, 1894

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Suit in ejectment by Tacoma Building & Savings Association against Thomas Clark and wife. From a judgment for defendants plaintiff appeals. Judgment reversed and remanded, with instructions to enter judgment in accordance with opinion.

H. F Garretson and Parsons, Corell & Parsons, for appellant.

Parker & Williamson, for respondents.

HOYT J.

The court decided upon the former appeal in this cause (26 P 253) that the boundary lines of the land conveyed by the deed under which the respondents hold should be laid out north and south and east and west, without reference to any variation in the line of the government survey, which was taken as the initial point in such description, unless it should be made to appear that the custom among surveyors throughout the state, and especially in the city of Tacoma, was, in laying out plats, to construe the direction given in the instrument of conveyance by the aid of the nearest government survey line, and to run such direction in accordance therewith, and, if such line varied from the true direction upon which it should have been run, to so vary the directions of the deed as to make them correspond with such variation in the government survey; and the cause was reversed and remanded, with instructions to admit proof as to the custom of surveyors in that regard. Upon the retrial of the case the court allowed certain testimony tending to establish such a custom, but refused to allow the appellant to introduce such proof as it desired in regard to the custom outside of the city of Tacoma. In thus excluding the testimony offered by the appellant the court failed to comply with the directions for retrial given by this court, and therefore committed error. In our opinion however, without the aid of such further proof, the practically undisputed testimony established the fact that the custom of surveyors was to so vary the line of the direction contained in the deed of conveyance under which they were making the survey as to make it correspond with the variation from the true direction of the nearest government survey line. The testimony of every witness introduced on the part of the appellant tended to establish this fact. They all testified in general terms that such was the custom, and that...