Samples v. Kergan

187 P. 383, 109 Wash. 503, 1920 Wash. LEXIS 949
CourtWashington Supreme Court
DecidedJanuary 19, 1920
DocketNo. 15488
StatusPublished
Cited by1 cases

This text of 187 P. 383 (Samples v. Kergan) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samples v. Kergan, 187 P. 383, 109 Wash. 503, 1920 Wash. LEXIS 949 (Wash. 1920).

Opinion

Parker, J.

— The plaintiff Elvira B. Samples, and others, as executrixes and executors of the last -will and testament of Daniel Samples, deceased, and in their own right, commenced this action in the superior [504]*504court for King county, seeking recovery of, and the quieting of title in themselves to, a strip of land about two feet wide lying along the- southern boundary line of Samples addition to the city of Seattle, as against the claims of the defendants, Kerg’an and wife. Trial upon the merits in the superior court sitting without a jury resulted in findings and judgment denying to the plaintiffs the relief prayed for, and quieting title to the strip of land in controversy in the defendants. From this disposition of the cause, the plaintiffs have appealed to this court.

On June 3,1893, James Galloway and Alice Galloway were the owners, each, of an undivided one-half interest in a tract of land consisting of approximately five acres, being nearly but not quite rectangular in form, bordering upon the easterly shore of Lake Union, in Seattle. On that day they divided the land between themselves, James Galloway taking the south half and Alice G-alloway taking the north half, each executing and delivering to the other a deed of conveyance accordingly, wherein the portion taken by each was so described. Immediately upon the making of these mutual conveyances, they built a substantial picket fence upon an east and west line, which they then agreed to be the correct dividing line between their respective halves of the land. Ever since that time James G-alloway and his successors in interest, of whom respondents are the last, have been in the open, visible and exclusive possession, adverse to all the world, of all of the land here in controversy lying south of the line of the fence built by the Galloways to establish the dividing line upon the ground between their respective tracts. It may be that in the building of the fence the G-alloways did not succeed in placing it upon an east and west line so as to divide the land into two equal halves with exactness, but if not, the [505]*505want of exactness in that respect, it would seem, can he accounted for by their seeming attempt to mark the division upon the ground without having an exact survey made thereof by a surveyor; and since the tract so divided was not an exact rectangle in form, but had a broken line on the west boundary along the lake shore, it is at once apparent that the dividing of the tract upon the ground into north and south halves with exactness would be a problem hardly capable of solution without an exact survey. However, it is apparent that the fence so built by the Galloways to mark the dividing line between their respective tracts was, in any event, along its whole course, within approximately two feet of the exact theoretical dividing line between the two halves and, as between themselves, became the established dividing line between their respective halves. "Whether or not such established dividing line, its establishment not being a matter of record, continued to be binding upon their successors in interest, it may be here conceded, would depend upon the continual recognition of it and possession by them accordingly. It is, however, all but conclusively proven in this case—indeed it seems to be conceded upon both sides—that possession on the part of James Galloway and all his successors in interest, including respondents, of all land here in controversy lying south of the line upon which the fence was constructed has been continuous, open, visible and adverse to all the world at all times since the construction of the fence, so that, when it is determined as a matter of fact where the line of that fence was and is upon the ground, such determination becomes decisive of this case in so far as the merits are concerned.

There is at present a fence along or near the line in controversy, which is claimed by appellants to be a wholly different fence from the one constructed by [506]*506the Galloways. Appellants claim that this fence was constructed by their predecessor in interest several years ago on a line some two feet north of the line of the original Galloway fence, which they claim was then still there, but in such a dilapidated condition that it was more practicable to build a new fence than to repair the old one. This new fence, as appellants claim, was built by one of their predecessors in interest without any idea of its being upon the boundary line of their property, or upon the line of the original Galloway fence, but only as a temporary fence to enclose their pasture lot. Appellants also claim that the remains of the original Galloway fence were, several years ago, entirely removed. It is plain that the present possession of respondents and their predecessors in interest has been up to the present fence at all times since it was constructed as claimed by appellants, whether that fence be in fact a new one located north of the line of the original Galloway fence or merely a reconstruction or repair of the old Galloway fence upon the line of its original location. Respondents claim that the present fence is the original Galloway fence repaired or reconstructed upon the line of its original location, and that their present possession of all the land here in controversy south of it is simply a continuation of the possession of their predecessors in interest.

In April, 1918, appellants caused to be surveyed and platted into lots and blocks what they claim to be the land acquired by them by mesne conveyances from Alice Galloway as the north half of the tract originally owned by the Galloways, and an exact survey of which, as claimed by them, shows their line to be some two feet south of the present fence, which line, they claim, is the one upon which the original Galloway fence was placed and up to which the possession of respondents [507]*507and their predecessors in interest extended, and no farther. It is the south line of this survey and plat, known as Samples’ Addition, that appellants seek to have established as the line dividing the north and south halves of the original Galloway tract as divided by the Galloways in the year 1893. We have thus related, at what may seem unnecessary length in view of our conclusion, the facts leading up to this controversy, to the end that it may be made plain that the ultimate question determinative of the rights of the parties is simply the question of fact as to where the line of the original Galloway fence was located upon the ground, which is also the line up to which respondents and their predecessors in interest have maintained their possession at all times during the past twenty-five years.

The trial court found, in substance, that the present fence, whether it be a reconstruction or repair of the original Galloway fence, is in fact upon the line of the original location of that fence. The evidence is not free from conflict upon this question, but a careful reading of all the evidence convinces us that it clearly preponderates in support of such finding. Some nine or ten years ago, one of the predecessors in interest of respondents built a substantial dwelling house upon the land now owned by respondents. This house has a basement with walls of solid concrete of a very permanent character, the north wall of which, as we think the evidence shows, is four feet south of the line of the original Galloway fence, which fence, at the time of the construction of the house and basement, was in existence and upon the line of its original location.

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Bluebook (online)
187 P. 383, 109 Wash. 503, 1920 Wash. LEXIS 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samples-v-kergan-wash-1920.