Albee v. Town of Yarrow Point

• Decision Date: 19 September 1968
• Docket Number: No. 39100,39100
• Parties: George ALBEE and Julie M. Albee, his wife; William L. Worden and Evelyn Worden, his wife, Appellants, v. TOWN OF YARROW POINT, a municipal corporation, Respondent.
• Court: Washington Supreme Court

Page 453

74 Wn.2d 453

445 P.2d 340

George ALBEE and Julie M. Albee, his wife; William L. Worden and Evelyn Worden, his wife, Appellants, v. TOWN OF YARROW POINT, a municipal corporation, Respondent.

No. 39100.

Supreme Court of Washington, En Banc.

Sept. 19, 1968.

Lycette, Diamond & Sylvester, John P. Lycette, Jr., Seattle, for appellants.

Hullin, Ehrlichman, Roberts & Hodges, John A. Roberts, Jr., Seattle, for respondent.

HILL, Judge.

This is an attempt on the part of certain property owners ¹ to enjoin the town of Yarrow, a municipality of the fourth class, from making certain improvements in and uses of an area which the town claims as a street. The trial court refused the injunction, held that the improvements theretofore made in the area were proper, indicated certain things that the town might do in the future, and dismissed the action. The property owners appeal.

The first question for decision is: Does the town of Yarrow own as a street that portion of Haddin Way ¹ which would be an extension across the second-class shorelands from the line of ordinary high water of Lake Washington in 1913 to the present line of navigability?

If the answer to that question is 'yes,' we reach the second question: What uses can the town of Yarrow make of such portions of Haddin Way?

Our consideration of the first question takes us back to 1913 to determine the legal consequences of the filing of a plat May 13, 1913, ² by the Yarrow Land Company, a Washington corporation.

The plat, denominated 'Replat of Portions of Yarrow, King County, Washington,' shows Haddin Way platted as a 60-foot street for most of its length, but widened to 100 feet about 25 feet from Lake Washington. This widening was accomplished by including an additional 20 feet on each side. While the 100-foot street terminated at Lake Washington, it gave access not only to the take, but to what is designated as 'Yarrow Wharf,' a long wooden pier, shown on both plats, which extended beyond the exterior plat line out to deep water, and was within the 100-foot wide extension of Haddin Way. From the end of this pier small steamers took on and unloaded passengers.

At the time of the filing of both plats, the principal means of transportation from Yarrow Point and other communities on the east side of Lake Washington to and from the city of Seattle were small passenger steamers plying back and forth across the lake. ³

The property covered by the plat encompassed Yarrow Point which projects into Lake Washington in a northerly direction. The lake formed the exterior boundary of the plat on all but the south side. The greater part of the land was platted as waterfront property, but there were more than 60 interior lots. The only access to the lake, provided by the plattor for the occupants of these interior lots, was via Haddin Way. ⁴

It would appear from the plat itself (and the date of the plat, May 12, 1913, is of considerable significance) ⁵ that the Yarrow Land Company, as plattor, intended the street to extend across the second-class shorelands, which it then owned, and the lakeward additions thereto, which it would with certainty acquire when the lake was lowered.

The legislature had acted in March, 1913 to extend the second-class shorelands ⁶ to the new line of navigability after the lake was lowered. ⁷ The plat expressly stated that it covered certain designated portions of Blocks A, B, C, D, and all of Block E of 'Yarrow, King County, Washington,' as previously platted, 'also, all shorelands of the second class lying in front of and contiguous to the lands above described.' The plat of 'Yarrow, King County, Washington,' had, after describing the uplands covered by the plat, stated that it covered 'all the shorelands lying in front of all the above-described property.'

There was a very important practical reason for the Yarrow Land Company's intention to extent Haddin Way across the shorelands and to navigable water. Haddin Way provided all property owners in the plat their only convenient access to boat transportation to Seattle, and for the interior lot owners it was the only access to the lake provided by the plattor for boating, fishing, swimming, wading, et cetera. A very considerable part of the value of the interior lots was attributable to the access to the water given by Haddin Way.

The automobile and the bridges across Lake Washington have ended the value of Haddin Way as an access for public transportation purposes, but the other access values still remain, so far as the interior lot owners are concerned and the public.

We hold that it was the intent of the plattor who owned the upland and the second-class shorelands to dispose of the second-class shorelands in front of their property to the property owners, and to extend the road dedicated to the public use across the second-class shorelands to navigable water.

However, if that was not its intention, the law will presume that it was, because it should have been. A rather recent (December 12, 1962) opinion of the Attorney General on this subject contains the following statement:

Thus, dedication to the use of the public of a street extending to the shore of a lake will be presumed to have been intended to enable the public to have access to the water for all proper public purposes. Application of Baldwin, 218 Minn. 11, 15 N.W.2d 184 (1944). Backus v. Detroit, 49 Mich. 110, 13 N.W. 380 (1882) * * *. A public street leading to navigable water will keep even pace with the extention of the land, whether the change in the land be due to natural causes or the voluntary act of the owner of the land. Frater v. Baylen Street Warf Co., 57 Fla. 63, 49 So. 188 (1909); Backus v. Detroit, supra. (AGO 61--62, No. 182).

The town of Yarrow on its incorporation in 1959 succeeded to the rights in Haddin Way which King County had acquired by the filing of the plats in 1907 and 1913. The answer to the first question is yes.

The trial court arrived at the same conclusion, but placed it on the basis of a designation by the Commissioner of Public Lands. The map from which the trial court drew this conclusion seems to us unclear and insufficient to support such a conclusion. If that conclusion is correct, the result is the same, but we prefer to place our holding--that Haddin Way extends to the line of navigation--on the grounds heretofore stated. Unless evidence can be presented that the declarations by Yarrow Land Company in the plat as to ownership of the second-class shorelands in front of the platted property were false--the plat and the applicable law indicate that Haddin Way should be extended across the second-class shorelands, then owned by Yarrow Land Company, and the additional second-class shorelands to be acquired in consequence of that ownership.

We now come to a consideration of the uses to which the town of Yarrow can put such an extension of Haddin Way.

Land dedicated as a street is thereby devoted to a general or public use, held in trust for the public and for the convenience of public travel. In addition to this primary purpose, there are other permissible secondary uses which, hower, must be consistent with the primary street purpose. State ex rel. York v. Board of County Commissioners of Walla Walla County, 28 Wash.2d 891, 898, 184 P.2d 577, 172 A.L.R. 1001 (1947). See Motoramp Garage Co. v. City of Tacoma, 136 Wash. 589, 241 P. 16, 42 A.L.R. 886 (1925).

The primary purpose of Haddin Way was for the convenience of the public in traveling, and giving access to Lake Washington. The fact that no pavement or sidewalk has heretofore existed upon the area in question does not control. Compare Burge v. Anderson, 164 Wash. 509, 3 P.2d 131 (1931). And the fact that the current use of the street end is limited to foot traffic is of no particular significance for 'a street used only by pedestrians is nevertheless a public * * * street within the legal meaning of that term.' 10 E. McQuillin, Municipal Corporations, § 30.11 at 644 (3d ed. rev. 1966). Absent a regulation to the contrary, 'pedestrians may travel upon any portion of the highway * * * their rights therein, in relation to other classes of traffic or modes of travel, being mutual, equal, and co-ordinate.' 25 Am.Jur. Pedestrians, § 213 at 511--12.

In the course of the improvements made by the town of Yarrow, accumulated rubble and brush were cleared out, storm sewers were rebuilt and extended to the water's edge, a concrete stairway was constructed so that pedestrians could get from the end of the pavement down to the...