Taylor v. Talmadge, 32788

• Decision Date: 05 August 1954
• Docket Number: No. 32788,32788
• Citation: 273 P.2d 506,45 Wn.2d 144
• Court: Washington Supreme Court
• Parties: TAYLOR, v. TALMADGE et ux.

Page 144

45 Wn.2d 144

273 P.2d 506

TAYLOR, v. TALMADGE et ux.

No. 32788.

Supreme Court of Washington, Department 2.

Aug. 5, 1954.

Brown & Millhouse, Bellingham, for appellant.

J. W. Kindall, Lester C. Voris, Bellingham, for respondents.

SCHWELLENBACH, Justice.

Garfield Taylor is the owner of the south half of the southwest quarter of Section 23, Township 38, N.R. 5, EWM, in Whatcom county, which he acquired by purchase in December, 1942. He also owns the northwest quarter of the northwest quarter of Section 26, same township and range. Adjoining it to the east is the northeast quarter of the northwest quarter, which is owned by Herbert Talmadge and wife. Both of these pieces are directly south of Taylor's property in Section 23.

In 1952 Talmadge caused a survey to be made to determine the true north boundary line of Section 26. When this was determined, he bulldozed and cleared a line, dug holes and set posts, intending to erect a fence on the line. This was in November of December of 1952. Taylor, feeling that Talmadge was encroaching on his property, and was preventing him from using a logging road which he had built over it, commenced action to restrain Talmadge and to recover damages. At that time a temporary injunction was issued enjoining defendants from proceeding with the building of the fence.

The trial court found the north boundary line of Section 26 to be located as contended for by Talmadge; found the sixteenth corner on the north boundary line of Section 26 (northwest corner of Talmadge property and northeast corner of the Taylor property) to be located as contended for by Talmadge; but found that, because of adverse possession, Taylor was the owner of a triangular strip of land commencing at the north quarter corner of Section 26, extending westerly 1,320 feet along a fence then in existence thence northerly 90 feet to the north boundary line, thence easterly approximately 1,320 feet along the north boundary line to the north quarter corner, the point of beginning. The court also allowed judgment to plaintiff in the sum of $25 and to defendants in the sum of $202.50.

Plaintiff appeals on the question of damages and as to the location of the sixteenth corner, resulting in a difference of 22.3 feet in the location of the north and south line dividing the two properties. Defendants cross-appeal on the question of adverse possession.

In order to adequately discuss the issues in this appeal, we find it necessary to insert a sketch of the property involved. We shall use one found in respondents' brief, and shall refer to it from time to time.

Two corrections should be noted. The distance of the north line is 1,342.3 feet instead of 1,342.8 feet. The distance between the north-south line as found by the court, and the line claimed by Taylor, is 22.3 feet instead of 23.2 feet.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The surveyor and engineer employed by Talmadge prepared a map of Section 26 from their survey notes. The map was introduced in evidence as defendants' Exhibit 1. It was placed on an easel in the court room and was referred to constantly by all of the witnesses. The surveyors had no difficulty locating the northeast section corner. Its location was agreed upon by everyone, as was the north quarter corner. They were 'found' corners. From these corners the surveyors proceeded to locate the northwest section corner. They then ran a direct line between the northwest section corner and the quarter corner, and located the sixteenth corner half way between the two. Having located the sixteenth corner, they then ran a line south as the dividing line between the Taylor and Talmadge forty-acre tracts. The north line of each tract was 1,342.3 feet instead of the usual 1,320 feet. However, Mr. Van Ordel, the engineer, testified that it is more unusual than usual to find exactly 1,320 feet across a 'forty.'

Taylor and his witnesses located the northwest section corner some distance south of the corner found by Talmadge's surveyors. They ran a line westerly from the quarter corner a distance of 1,320 feet extending along the line of the old fence, as shown in the sketch, with the result that they located the sixteenth corner 90 feet south and 22.3 feet east of the corner found by Talmadge's surveyors. As stated above, the trial court found the sixteenth corner to be as contended for by Talmadge.

There is no competent evidence in the record which preponderates against the court's finding as to the location of this corner. The attorneys, by their questions, and the witnesses, by their answers, continually pointed to Exhibit 1 to explain their questions and answers, without placing anything in the record to show where they were pointing. For example, 'A. There was a corner here (indicating) * * * and they started here (indicating on Exhibit 1), and runs this way and started over here and came this way.' The writer of this opinion had exhibit 1 before him all of the time that he was reading the statement of facts. Every time reference was made to the exhibit the writer would look at it, but would be unable to tell where the witnesses were pointing. The trial court, on the other hand, was able to follow the testimony. We therefore agree with the court's finding.

The testimony concerning adverse possession, however is much more understandable. The fence shown in the sketch was built about 1924. It extended westerly from the north quarter corner for a distance of 670 feet. There was credible testimony that it was the dividing line between the north and south properties. Leonard Stone, who owned the 80 acres north of the property in dispute, and which he sold to Taylor, testified:

'Q. Now, there--when you had it, was there an old fence there running along the southerly line of it? A. There was an old fence running along there.

'Q. It didn't go clear through? A. No. It only went about six hundred feet, five or six hundred feet.

'Q. And you used up to that line on the south? A. Well, I used up to that fence, all we ever did. I don't know, we never expected a line or anything, as I understood, because we never had it surveyed.

'Q. But that is the way you used up to it on your south and they used up to it on their north? A. Yes. I knew where that corner was there (indicating on Exhibit 1), and this one up here, but now, I couldn't swear where that corner was.

'Q. You mean the quarter corner? A. Yes. Irvin wanted to show it to me. We were up in there one day and he showed me that sixteenth corner there. I started to build a fence at one time, and he showed it to me so I didn't get over, but I didn't get over anyway, because I just wanted to get around a field I...