Book v. West

69 P. 630, 29 Wash. 70, 1902 Wash. LEXIS 556

Opinion

The opinion of the court- was delivered by

Hadley, J.

This is an action to- recover possession of certain real property in Chehalis county. The suit is waged by appellants, and the property is described as lots 1 and 2 in block E of the original plat of the town (now city) of Aberdeen. Appellants allege that the title to said property is in themselves, and was acquired as follows: That in the year 1892. respondents were the owners in fee simple of the lands, and that they then executed to one Book a mortgage thereon; that thereafter, in the; year 1893, the indebtedness secured by said mortgage being, due and unpaid, said Book commenced an action in the; superior court of Chehalis county to foreclose the mortgage; that such proceedings were had that in December of the same year a decree of foreclosure was duly entered in said action; that thereafter, in January, 1894, the sheriff of said county duly sold said lands under execution by authority of said decree to1 the Aberdeen Bank of Aberdeen, Washington, and thereupon issued to said bank a certificate of sale in due form; that prior to the commencement of this action said bank, for a valuable .consideration, sold and assigned said certificate to the appellants, who; thereafter received from said sheriff a deed for said lands, and that they have ever since been, and now are, the owners thereof, and since on or about January 1, 1900, have been entitled to the possession of the same; that on or about the last named date the respondents., without right or title, forcibly took possession of the premises and appurtenances, and wrongfully withheld the same from appellants. Respondents in their answer deny that they unlawfully entered upon the premises in controversy on the first day of January, 1900, or at any other time, and deny that they ever ousted appellants therefrom. They further deny that they had been in possession of the lands described in the complaint since the 15th day of February, 1894, and that they have ever at any time unlawfully kept appellants, out of possession. The answer affirmatively avers that in the year 1892, and while respondents were the owners- in fee of lots 1 and 2 in block E aforesaid, they madei certain improvements upon lands adjoining said lot 1, being on the west or westerly of the said lot. 1; that such improvements consisted of the construction of a wharf, with piling driven in the tidei lands as foundation therefor; that on said wharf so constructed respondents caused to be erected a certain building for use, and which has. been used, together with the wharf, by respondents for various purposes, and that the same is now in use, and was in use by respondents at the commencement of this- action, as the property of respondents; that at all times since the said construction respondents have been, and now are, the owners of said property so constructed, except, from the 2d day of January, 1893, to the 22d day. of July, 1897, during which time the title to the same was in one Robinson; that on said first date respondents conveyed the same to. said Robinson, and on the last-named date he rei-conveyed it to respondents. The reply a-vers, by ■way ofs estoppel, that in February, 1884, one Samuel Benn and wife caused to- be duly filed in the auditor’s office of C'hehalis county a plat entitled “The Plat of Aberdeen,” and that the lands described in the complaint as lots 1 and 2, block E-, are included in said plat; that said lot 1 is bounded on the west side by the Wishkah river, and that according to said plat said lot extends to low-water mark, and includes all of the tide lands mentioned in the: answer, on which it is alleged respondents constructed the said improvements, and that said improvements are situate upon said lot 1; that respondents purchased said lot by mesne conveyances from said Samuel Benn and wife, and with reference to- said plat, and executed the mortgage through which appellants claim with reference to the same plat; and that they are now es-topped to deny appellants’ title to said tide lands. The cause was tried by the court without a jury, the jury being waived. The court found that appellants are the owners and entitled to the possession of said lots 1 and 2 in block E, but found further that á small portion of the buildings and improvements heretofore mentioned as having been constructed by respondents is included within the limits of said premises; that respondents’ improvements were erected wholly upon tide lands, with the said exception, their said building extending inside the meander line and upon appellants’ premises a distance of four and four-fifths inches at the south end and two feet and eight-tenths of an inch at the north end; that, except-as to the portion of appellants’ premises covered by the building aforesaid, respondents have not been in possession, and have disclaimed possession, or the right thereto, but as to the part covered by the building they have been in possession, and that appellants have been damaged in the sum of one dollar. Judgment was entered in favor of appellants, awarding them possession of that portion of the lands occupied by the building, together with one dollar damages and the costs of the action, and from said judgment they have appealed.

It is suggested by appellants in their brief that the only real question at, issue is whether the portion of the building and wharf located upon the adjacent tide lauds passed as an appurtenance to the upland under the said mortgage and the subsequent foreclosure proceedings. It is urged that the building and wharf passed as an ap>purtenance to the mortgaged premises under the stipulation in the mortgage by which the respondents conveyed the upland “together with all and singular the appurtenances thereunto' now or hereafter belonging.” It is argued that, by the mortgage respondents, incumbered all of their title in the upland, and also, such title, and right of possession as. they may have had in the wharf building and flats adjacent, to the upland. It is conceded that respondents were not the owners of the tide lands, the title thereto being still in the state of Washington; but it is contended that as the improvers of the strip of tide land, and as owners of the abutting upland they had some sort of right in thei lands when the mortgage was executed ; that they were in possession of the tide lands, and could hold possession as against all persons except the state, and had also a preference right of purchase from the state. Appellants concede that an action of ejectment cannot generally be maintained for the recovery of tide lands, the title to which is still in the state, but they insist, that ejectment will lie to recover these tide lands and wharf and building, for the reason that, they were merely appurtenant to the upland when the mortgage was executed. Wea’e these improvements and tide lands appurtenant to the mortgaged lands, under the facts of this case ?

“An ‘appurtenance’ is a thing’ used with, and related to- or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing where-unto' it is appendant or appurtenant. The term ‘appurtenant’ expresses the notion of being annexed to, or belonging to, some more important thing.” 2 Am. & Eng. Enc. Law (2d ed.), pp. 521, 522, 523.

It will be observed that the above definition contemplates that a thing, in order to be an appurtenance to the land, must be used with the land, or must be in some way related to. or dependent upon it. The evidence in this case shows that it was the intention of respondents to construct the improvements wholly upon the tide lands, and that the projection of the building a few inches her yond the limit of the tide lands was by reason of a mistalce as to thei exact location of the line bounding said lands. They intended to. maintain these improvements as entirely separate and distinct from the uplands. Kb improvements whatever were placed upon the uplands. They were merely platted and unoccupied lots. There was therefore no use to which the upland lots were put that was in any way aided by or dependent upon the improvements on the tide lands.

“Kothing passes by the word appurtenance except sugIi incorporeal easements or rights or privileges as are strictly necessary and essential to the proper enjoyment of thei estate granted. A mere convenience is. not. sufficient to thus create such a right or easement.” Root v. Wadhams, 107 N. Y. 384, 394 (14 N. E. 281).

The principal thing granted by the mortgage was the upland, and anything appurtenant thereto must have been so incident to it as to be useful or necessary for carrying out the purposes, to which the land had been theretofore applied. Such an incident to' the principal thing, it has been held, passes by a conveyance whether the word appurtenance is used or not. Witte v. Quinn, 38 Mo. App. 681; Jackson v. Trullinger, 9 Ore. 393.

“It is a general rule that, upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it. The law gives such a construction to the conveyance, in view of what is thus used for the land as an incident or appurtenance, that the latter is included in it.” Huttemeier v. Albro, 18 N. Y. 48, 51, 52.

It thus appears that the use of the words referring to appurtenances in the said mortgage did not enlarge its scope. Anything that was in fact appurtenant passed by the mortgage without such words. They cannot, therefore, be said to refer in terms to- the improvements' in question, since their legal effect can be extended no further than to what was in fact appurtenant-. There is nothing in the words to indicate that the parties intended them specifically to refer to- these improvements as appurtenances, and, since the evidence does not show that they ware in any way applied for the benefit of the fise and occupation of the upland as theretofore utilized, we are unable to> see that they became incident or appurtenant to- it.

Appellants cite Brown v. Carkeek, 14 Wash. 443 (44 Pac. 887), as a case where- this court held that a wharf was an appurtenance to- an adjoining lot. The lot itself was a tide-land lot, upon which was constructed a wharf, and this wharf had been extended across adjoining tide lands, and the whole was used together. The lease provided that all improvements which should be made by the lessees upon- said property, or appurtenant thereto, should become the property -of the lessors at the close of the leasehold term. The wharf and buildings were destroyed by fire, and the lessees rebuilt. It was claimed by the lessees that the lessors could not hold the portion of the wharf extending beyond the lot. described, because it was not appurtenant to. the lot. It was held that it was appurtenant. This, was clearly right under the facts in that case. The two- were; being used and operated together as one wharf when the lease was. made. That portion of the wharf upon the lot was dependent directly upon the other for the use then being made of the lot, and the court held that hy the terms of the lease itself the parties intended to include the wharf outside of the lot. The outside wharf seems to have coma within the definition of an appurtenance, since it was being directly used-for the benefit of the wharf upon the lot, which was the principal thing. Appellants, also cite Seattle & M. Ry. Co. v. Carraher, 21 Wash. 491 (58 Pac. 570). That case simply holds that a conveyance by the upland owner carried with it his rights as a preference; purchaser of the adjacent tide lands, and that a subsequent conveyance of the tide lands carried no; title. But it does not hold that the purchaser of the upland can maintain ejectment against an occupant of tide land merely by virtue of his upland title, as is sought by appellants, here. The case of West Coast Imp. Co. v. Winsor, 8 Wash. 490 (36 Pac. 441), is also cited by appellants. Thera it, was held that, until such time as the upland owner can exercise his preference right to purchase tide lands abutting upon his upland, he has such an interest as enables, him to- maintain injunction against a mere trespasser upon the tide lands. It is, however, not, claimed in this case that appellants seek to control this land by reason of any present preference right to. purchase.

There -was .an insurance stipulation in the mortgage, to the effect that respondents should keep- the buildings then erected or thereafter to- be erected upon the mortgaged premises insured, and that the policies of insuranee should be assigned to the mortgagee. The court found that it was the intention of the parties in making said stipulation to refer to the buildings hereinbefore mentioned. The evidence shows that the mortgage npon the lote was given to secure accrued interest upon an indebtedness already existing, and that the assigned insurance upon this building was proposed and given as security additional to the mortgage. The parties could treat the insurance as additional security, whether the building passed by the grant of the mortgage or not. Thera being no words of grant showing it to have been the intention to> pass this building and the improvements by the 'mortgage', and since they were not, from the nar tura of their use, appurtenant to the mortgaged land, it follows that they did not pass by the mortgage. Appellants are entitled to recover that portion .of the upland not disclaimed by respondents,- — the small space occupied by the end of respondents’ building.

We think the judgment correct, and it is affirmed.

Reavis, G.-J., and Fullerton; Anders, Mount, Wi-iite and Dunbar, JJ., concur.