Turner v. Creech

Decision Date21 May 1910
Citation58 Wash. 439,108 P. 1084
PartiesTURNER et ux. v. CREECH et ux.
CourtWashington Supreme Court

Department 1. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action by R. C. Turner and wife against John S. Creech and wife. From a judgment for plaintiffs, defendants appeal. Reversed with directions to enter decree for defendants.

John C. Hogan, for appellants.

Boner &amp Boner, for respondents.


In June, 1901, appellants, Creech and wife, were the owners of the south 43 1/3 feet of lots 1 and 2, block 6, Weatherwax &amp Benn's addition to Aberdeen. This tract was occupied as a dwelling place, and was inclosed with a fence. The lots were platted each 50 by 130 feet. The remainder of the lots was owned by one Harriet Dutcher. Appellants in that year purchased from Mrs. Dutcher 6 2/3 feet, lying along their north line. The tract was surveyed and staked, and appellants' fence was put upon the line as marked by the surveyor and agreed upon by the parties. The description in the deed is as follows: 'Commencing at the northeast corner of lot one (1) in block six (6) in Weatherwax and Benn's addition to the town, now city, of Aberdeen; thence southerly along the easterly line of said lot one (1) eighty (80) feet to point of beginning; thence westerly parallel with Fifth street, one hundred (100) feet to the westerly line of lot two (2) in said block six (6); thence southerly along the westerly line of said lot two (2) six and two-thirds (6 2/3) feet; thence easterly parallel with said Fifth street one hundred (100) feet to the easterly line of said lot one (1); thence northerly along the easterly line of said lot one (1) six and two-thirds (6 2/3) feet to point of beginning.' Thereafter appellants extended their dwelling house so as to cover a part of the 6 2/3-foot strip. On May 4, 1905, Mrs. Dutcher sold and conveyed to respondents the portion of the lots 1 and 2 then owned by her, describing it as the northerly 80 feet of lots 1 and 2. Respondents entered into possession of the land and have ever since, and are now, occupying it as a home. At the time respondents moved onto the land, it was inclosed by a fence; the two lots making two tracts, one 50 by 100, and the other 80 by 100. In June, 1908, the city of Aberdeen undertook the permanent improvement of Fifth street, which abutted on the north of the Turner property, and at that time the city surveyor determined that the Turner property encroached 1 8/10 feet upon Fifth street. These figures were accepted by the respondents, and they shortly thereafter began this action to eject appellants from the north 1 8/10 feet of their tract, upon the theory that, inasmuch as Mrs. Dutcher had intended to reserve 80 feet to herself at the time she made the deed to the 6 2/3 feet, the shortage in the lots should fall upon these appellants. Appellants, answering, denied the ownership of respondents, and set up title in themselves. They also pleaded a mutual mistake, in that Mrs. Dutcher and these appellants believed, at the time their deed was executed, that the lots were 130 feet long, and not 128 2/10, as would result if the figures of the city engineer are accepted. The court found that, although the official plat shows the lots to be 130 feet long, they are in fact 128 2/10 feet; that Mrs. Dutcher intended to, and did, retain the northerly 80 feet for herself, and intended to convey to appellants only the land lying between her 80 feet and the property then owned by them; that both supposed this strip to be 6 2/3 feet; but that in fact it was 1 8/10 feet less than the estimated width. At the request of appellants, the court also found that, according to the official plat as recorded in the office of the auditor of Chehalis county, the lots were 130 feet in length; that, after platting the land, Samuel Benn and wife, who were then the owners, conveyed the whole of said lot in three distinct parcels, each 43 1/3 feet wide, the grantor of these appellants acquiring the southerly 43 1/3 feet; that Mrs. Dutcher thereafter acquired the northerly 86 2/3 feet.

The findings of the trial court are confusing, if not actually contradictory of the facts upon which the decree must rest if sustained. This consequence is not unusual where each party submits findings, and the paragraphs are severally marked 'found' or 'refused,' by the court. Dual findings upon the same subject are bound to follow, and they but lead to confusion, and contradictions are almost sure to creep in. Proper practice demands that findings of fact and conclusions of law come to us in some concrete form. This court cannot, and it should not be put to the burden of winnowing out, recasting, or rewriting the findings of trial courts in order to harmonize them so that we may follow the theory of the trial judge. A complete and perfected set of findings should be prepared after they have been settled by the court.

Error is assigned in that the court refused to permit one E. N Simms, a son of Mrs. Dutcher, now deceased, to testify as to the intent...

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26 cases
  • Carstensen v. Brown
    • United States
    • Wyoming Supreme Court
    • May 19, 1925
    ... ... 135.) ... Such an agreement is not within the statute of frauds. ( ... Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, ... 16 Mo. 273; Turner v. Baker, 64 Mo. 218; Acton ... v. Dooley, 74 Mo. 63.) Nor is it necessary that such an ... agreement should be shown by direct evidence, but it ... 669; Borgeson v. Tubb, 54 Mont ... 557, 172 P. 326; Sheets v. Sweeney, 136 Ill. 336, ... 342, 26 N.E. [32 Wyo. 506] 648; Turner v. Creech, 58 ... Wash. 439, 108 P. 1084; Hellman v. Roe, 275 Ill ... 158, 113 N.E. 989; Marion v. Balsley, 195 Mich. 51, ... 161 N.W. 820. Many other ... ...
  • Pendergrast v. Matichuk
    • United States
    • Washington Supreme Court
    • September 15, 2016
    ...has long been the law in Washington that “[t]he location of a line by a common grantor is binding upon the grantees.” Turner v. Creech 58 Wash. 439, 443, 108 P. 1084 (1910) (citing McGee v. Stone, 9 Cal. 600 (1858) ). A common grantor can “establish[ ] an ‘on the ground’ boundary line betwe......
  • McDonald v. Stern
    • United States
    • Washington Court of Appeals
    • July 24, 2023
    ...and acted upon by the parties, as where valuable improvements are placed with reference to it and before it is denied by either party." Id. at 444. v. Hoffman is most analogous to this case. 64 Wn.2d 37, 390 P.2d 553 (1964). There, a plat was recorded in 1891, but not surveyed and laid out ......
  • Vance v. Massey, No. 32608-6-II (WA 2/14/2006)
    • United States
    • Washington Supreme Court
    • February 14, 2006
    ...indicated that the location of a line by a common grantor is binding on grantees because `{p}ossession is notice.' Turner v. Creech, 58 Wash. 439, 443, 108 P. 1084 (1910). In adverse possession cases, Washington courts have consistently held that possession varies depending on the nature, c......
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