City of Port Townsend v. Lewis

Citations

• 34 Wash. 413
• 75 P. 982
• 1904 Wash. LEXIS 368

Syllabus

<p>Pleadings — Waiver by Pleading Over. A motion to strike portions of a complaint or to make it more definite is waived by pleading over and going to trial on the merits.</p> <p>Appeal — Review—Harmless Error. Error in tbe admission of evidence in an action to recover posession of real estate tried before tbe court upon waiving a jury, is harmless since the supreme court tries the case fie novo on appeal.</p> <p>Appeal — Review—Harmless Error — Waiver of Nonsuit by Going to Trial. In an action tried before the court without a jury, a motion for a nonsuit is waived by going on with the trial.</p> <p>Municipal Corporations — Streets—Ejectment—Complaint— Ownership of Street. A city may maintain an action of ejectment to recover possession of a portion of a public street, under the statute giving it the control thereof, and the complaint is sufficient without any allegation of ownership where it is alleged that it is a public street.</p> <p>Trial — Cross-Examination Respecting Affirmative Defense— Harmless Error. Error can not be predicated upon the exclusion of cross-examination of plaintiff's witnesses respecting defendant’s affirmative defense, especially when the matter was subsequently established without contradiction.</p> <p>Adverse Possession — Tide Lands — Application to Purchase From State — Claim Not Adverse. Adverse possession of a public street across tide lands for ten years is not shown where during the period the claimants were contesting with the officers of the city a claim of a preference right to purchase the lands from the state, since such act is inconsistent with the claim of adverse right.</p> <p>Same — Seven-Year Statute Inapplicable Without Color of Title, or in Case of Public Use. A claim to adverse posession of lands can not be made under Bal. Code, § 5503, where the claimant does not hold under color of title, nor where the lands were held for a public purpose, viz., a public street.</p> <p>Appeal — Record—Costs—Showing on Motion to Retas.