Alexander v. Bennett

158 P. 534, 91 Wash. 688, 1916 Wash. LEXIS 1117

• Court: Washington Supreme Court
• Decided: July 5, 1916
• Docket: No. 13471
• Status: Published

Opinion

Bausman, J.

Ejectment based upon adverse possession during more than the statutory ten years against defendant and his grantors, who present perfect legal title with payment of taxes.

Only a small portion of defendants’ land, much less than an acre, is in question, a small appendix from the main body along a bay in front of plaintiff’s farm, separating that farm from the water and joined with the rest of defendants’ land by a mere neck. Plaintiff showed that, when she and her husband bought their farm more than twenty-five years ago from its then owner, the latter spoke of this fringe as part of it and pointed out a fence across this neck. The fence, they were told, constituted the line between the estates, which indeed seems physically and naturally the place of severance. A buyer of the plaintiff’s land might easily conceive this small piece to be a part of it.

The tract claimed is very small and, while every bit of it has not been, a part of it has been, kept in cultivation. Moreover, some structures were long ago erected by the Alexanders on a portion. From the cultivated piece there is a path running to the shore and ending at a landing, which in that neighborhood has long been called Alexander’s landing. While this landing has been used more or less by the general public, it could be used only through the Alexander’s land and by their permission. Finally, fairly conspicuous signs against trespassers have long since been kept up by the Alexanders.

Under our decisions adverse possession of vacant lands goes, to be sure, only to so much of them as is actually occupied, yet the uncultivated portion here was part of a shore which varied with' the fullness of the lake and was not appropriate for cultivation at all. Thus it can fairly be said that all was kept in cultivation that was fit for cultivation. The fence across the neck has always been maintained, the cultivation has been continuous, and the landing and the path always in use. In short, considering how small this tract is, there has been a physical possession of the whole.

The case was tried without a jury, and the judge having personally inspected these premises has had an advantage impossible to us with the aid of photographs and diagrams. He has found that this possession by the Alexanders was from the first in belief of ownership, adverse, open, exclusive, notorious, and continuous during more than the statutory period, so under our long established rules we shall not disturb his findings. Though there was much contradictory testimony, there was abundance to sustain them.

Judgment affirmed.

Morris, C. J., Parker, and Holcomb, JJ., concur.