[No. 34726. Department One. Supreme Court January 15, 1959.]
OTTO TIMM et al., Respondents, v. WILLIAM L. GILLILAND
et al., Appellants.«1»
[1] APPEAL AND ERROR - BRIEFS - SETTING OUT FINDINGS - NECESSITY. The findings as made by the trial court must be accepted upon appeal as the established facts of the case, where the findings claimed erroneous are not set out verbatim in the appellants' brief. (Rule on Appeal 43.)
[2] SAME. Appellants could not escape the effect of Rule on Appeal 43, providing that findings of fact claimed to be erroneous must be set out verbatim in their brief, upon the theory that portions of the findings claimed to be error were in reality conclusions of law, and, hence, need not be set out in the brief, where two of the findings where obviously findings of fact, and the third, by reason of being a negative fact, was in the nature of a conclusion of law, but was adequately supported by the preceding findings of fact.
[3] SAME - PRESERVATION OF GROUNDS - MATTERS NOT RAISED IN LOWER COURT. The supreme court does not review a trial court's action as to questions not submitted to it.
Appeal from a judgment of the superior court for Lincoln county, No. 12182, Ennis, J., entered January 10, 1958, upon findings in favor of the plaintiffs, in an action to enjoin
«1» Reported in 334 P. (2d) 539.
[3] See 3 Am. Jur. 287.
Jan. 1959] TIMM v. GILLILAND. 433
trespassing on farmlands and cross-action to establish an easement by prescription. Affirmed.
Thomas P. Delaney, John H. McRae, and Howard Phillips (George E. Weigle, of counsel), for appellants.
W. Kenneth Jones for respondents.
MALLERY, J. -
The plaintiffs sued to enjoin the defendants from passing over their farmlands. The defendants crosscomplained claiming an easement by prescription. The trial court granted the injunction, and the defendants appeal.
[1] The appellants did not set out verbatim in their brief the findings of fact which they claimed to be erroneous, hence, the findings as made by the trial court must be accepted upon appeal as the established facts in the case. Rule on Appeal 43, 34A Wn. (2d) 47, as amended, effective January 2, 1953.
Appellants seek to escape the effect of the rule upon the theory that the portions of the findings of fact which are claimed to be error are in reality conclusions of law, and, hence, need not be set out verbatim in the brief.
[2] The findings in question are that (1) appellants were using the roadway by virtue of permission granted by respondents, (2) respondents were not aware that appellants were using the roadway under a claim of right, and (3) appellants failed to present evidence proving their use of the roadway was adverse, open, notorious, hostile, exclusive, and continuous under any claim of right. The first two are obviously findings of fact. If the third, by reason of being a negative fact, is in the nature of a conclusion of law, it will still avail appellants nothing, since it is adequately supported by the preceding findings off fact.
The only other error claimed by appellants is that the trial court erred in failing to grant them an easement by implication. Appellants admit in their brief that this theory is being urged for the first time upon appeal, but argue that this court can now pass on it by holding that it was encompassed within the pleadings in the trial court. We do not agree.
434 DUPLANTY v. MATSON NAV. CO. [53 Wn. (2d)
[3] In their pleadings, the respondents alleged that the appellants trespassed on their land without permission and without any right to do so. The appellants stood upon a general denial of these allegations. No hint that an easement by implication was being sought was given to the trial court. It did not err in failing to pass upon extraneous questions. We do not review the trial court's action as to questions not submitted to it. Lewis Pacific Dairymen's Ass'n v. Turner, 50 Wn. (2d) 762, 314 P. (2d) 625; Braman v. Kuper, 51 Wn. (2d) 676, 321 P. (2d) 275.
The judgment is affirmed.
HILL, FINLEY, OTT, and HUNTER, JJ., concur.