Vogler v. Anderson

• Decision Date: 06 April 1907
• Citation: 46 Wash. 202,89 P. 551
• Parties: VOGLER et ux. v. ANDERSON et al.
• Court: Washington Supreme Court

89 P. 551

46 Wash. 202

VOGLER et ux. v. ANDERSON et al.

Supreme Court of Washington

April 6, 1907

Appeal from Superior Court, Franklin County; H. B. Rigg, Judge.

Action by H. C. Vogler and wife against W. T. Anderson and others as county commissioners of Franklin county, and William Gerking, as road supervisor of road district No. 4 in said county. From a judgment in favor of defendants, plaintiffs appeal. Reversed and remanded, with instructions to enter a judgment in favor of plaintiff.

Zent &amp Lovell, for appellants.

W. D Schutt and A. C. Routhe, for respondents.

FULLERTON J.

This action was brought by the appellants to restrain the respondents from trespassing on certain farm lands situated in Franklin county; it being alleged in the complaint that the respondents had, without color of authority, entered upon the appellants' premises, tore down the fences, drove with teams and wagons over their garden and fruit trees, and committed other injuries thereto, to the damage of the appellants in the sum of $2,000. The respondents admitted entering upon the premises described and tearing down the fences, but justified their acts by pleading that they entered as county officers upon a county road, across which the appellants had wrongfully constructed the fence which they removed; pleading, further, that a road had been established across the appellants' land by adverse user. The cause was tried by the court without a jury, and resulted in a judgment for costs in favor of the respondents.

In this court each party insists that the pleading of the other is insufficient; but as the errors pointed out consist of defects capable of being cured by amendment, and the case was tried in the court below on the merits as if upon sufficient pleadings, this court will treat the pleadings as amended and try the case de novo upon the record. The evidence tended to show that, prior to March, 1903, the land of the appellants was unoccupied government land subject to entry under the land laws of the United States; that, some two years prior to that time, certain settlers living in the vicinity began to drive over it one their way from their homes to a place where they obtained water; and that between that time and March, 1903, it was used as a highway by them for that purpose, and by other persons who had occasion to pass through that part of the country. At the date mentioned the appellants settled on the land. They changed the travel somewhat shortly after their entry in order to accommodate their fences, but suffered it to continue over the route as changed for about one year thereafter, when they fenced up the entire tract, closing the road at the places where it entered and left the land. The...