Bingham v. City of Walla Walla

• Decision Date: 22 January 1887
• Citation: 13 P. 408,3 Wash.Terr. 68
• Parties: BINGHAM v. CITY OF WALLA WALLA AND OTHERS.
• Court: Washington Supreme Court

13 P. 408

3 Wash.Terr. 68

BINGHAM v. CITY OF WALLA WALLA AND OTHERS.

Supreme Court of Territory of Washington

January 22, 1887

Bill for injunction.

Bingham, Allen & Crowley, for appellant.

J. L. Sharpstein, for appellee.

TURNER, J.

A town or village sprang up on what is now the site of the city of Walla Walla as early as the year 1858. During that year the town or village attained a population of two or three hundred persons, and it has since continued to increase in population until at the present time it has attained a population of at least 5,000 persons. At the time its occupancy as a town or village began, its site was a part of the public domain of the United States, and within Walla Walla county. In the year 1858 or 1859 the board of county commissioners of said county applied to make entry of the lands covered by the town-site under the act of congress entitled "An act for the relief of citizens of towns upon the lands of the United States under certain circumstances," approved May 23 1844. On the seventh and eighth days of November, 1859, the said board of county commissioners, at its regular session established the county-seat of Walla Walla county at Walla Walla, and made certain regulations concerning the survey of said town-site, the direction and width of streets, the sale of town lots, etc. Pursuant to the regulations thus made the county surveyor made a survey of said town-site, laying off streets therein, and the result of this work was embodied in a plat, which was deposited in the office of the county auditor.

In the year 1867, the city of Walla Walla having been incorporated in the mean time, another survey was made by direction of the city authorities, and a plat thereof was filed in the office of the county auditor. This plat was identical with that made under the direction of the county commissioners, except that the plat of the county commissioners exhibited certain obstructions existing in the streets, caused by lands in possession of actual occupants impinging on said streets which obstructions the city plat does not show. Many of these obstructions existed long after the entry of the town-site, and were finally removed by condemnation proceedings instituted by the city, or by private negotiations at the instance of the city.

Before action was taken in the general land-office on the application of the county commissioners to enter under the town-site act of 1844, that act was repealed by the act of July 1, 1864, (13 U.S. St. at Large, 343,) and patent was finally granted to the corporate authorities of the city of Walla Walla under the provisions of the act of congress approved March 2, 1867, (14 U.S. St. at Large, 541.) The patent was dated July 20, 1869.

In the year 1858 one W. H. Patten, a citizen of the United States, and a resident of the town or village of Walla Walla, entered upon and occupied a lot of land fronting on Main street, in the town of Walla Walla, 23 feet, and extending back southerly 120 feet, with a uniform width of 23 feet. Patten erected a building thereon immediately, covering the entire frontage, and extending back with a uniform width of 70 feet. The remainder of the lot was fenced. Patten conveyed all his interest in the lot to one D. S. Baker, November 22, 1862, Baker being a person qualified to hold lands under the town-site act. Baker conveyed the lot to one U.S. Stephens on July 22, 1874, and Stephens sold the lot to appellant in the month of May, 1883. A strip of this lot of land 11 feet wide, and extending back the entire depth of the lot, is included in what is designated as First street on the two plats before mentioned, but, up to the time of the interference of the city authorities hereafter mentioned, the whole of said lot has been in the continuous, exclusive, and undisturbed possession of said Patten, and his grantees, either by themselves or their tenants. No part of said strip of land, from the time Patten settled and built on it to the present time, has ever been in actual use as a part of First street, but, on the contrary, as before said, has always been in the actual and adverse possession of Patten and his grantees down to the appellant in this case.

On the twenty-third day of February, 1866, D. S. Baker, the grantee of Patten, made application to the city authorities of Walla Walla for a deed to said lot of land, pursuant to the directions of an act of the legislature of Washington Territory, entitled "An act conferring certain powers on the city of Walla Walla," approved December 11, 1865, and the provisions of an ordinance of the city of Walla Walla passed pursuant to the last-named act. In this application for deed the lot was described as bounded on the east by First street, "according to the official plat of the city." In the deed executed to the applicant, and accepted by him, the lot conveyed is described as follows: "Commencing at a point on the south side of Main street, distant forty-eight feet from the north-east corner of lot number two, in said block 13, and running easterly, on the south side of Main street, to the north-east corner of said block 13, a distance of 12 feet, more or less; thence southerly, at right angles, along the west side of First street, one hundred and twenty feet, to the north side of the alley in said block; thence westerly, along the north side of said alley, twelve feet, more or less, to a point forty-eight feet distant from the south-east corner of lot number two, in said block; and thence, at right angles, to the place of beginning,-being the western fraction of lot number one, in said block 13, less 48 feet off the west side of said lot."

It will be noticed that this conveyance omits the 11-feet strip of land in controversy, and that the description of the part conveyed makes First street the eastern boundary thereof. But Dr. Baker in his testimony, which is not disputed or contradicted, says he insisted at the time of making such application and receiving said deed that he was entitled to a deed for the remaining 11 feet, and that he gave notice that he did not intend, by his action respecting the part conveyed to him, to waive his right to the balance, and that he was promised by the city authorities that he should be paid for the part not conveyed when the streets marked on the plats were opened, and that none of the cross streets had then been opened, except a narrow crossing at what is now Second street.

In August, 1885, the building erected on said lot by Patten, to which additions had been made by subsequent occupants, was destroyed by fire. The appellant then caused the entire lot to be securely fenced, and thereafter made preparations to rebuild thereon, covering the entire frontage of the lot originally occupied. At this point the city of Walla Walla made claim that the strip of 11 feet in dispute was lawfully a part of First street, and that the occupancy thereof by appellant was wrongful, and, by and through its commissioner of streets, it tore down the fence of appellant, and continued to tear it down as fast as rebuilt, forcibly interfered with his possession, and thereby rendered abortive his preparations to rebuild his structure on said land.

The appellant, by the case made on the pleadings and proofs, seeks to have his title to said 11-feet strip of land declared, to have the city of Walla Walla, its agents and servants, enjoined from further interference with his possession, for damages for past trespasses, and for general relief. This general statement of the facts is sufficient to give an understanding of the points in controversy in the case.

The city of Walla Walla predicates its right to the land in controversy for use as a street on the following grounds: (1) That the grant of title under the town-site act of 1867, after the town-site was platted, was a dedication to the public by the United States of all streets and alleys shown on the town plats; (2) that the acceptance by Baker of the deed to a part of the Patten lot, by which a frontage of 12 feet only was conveyed, and in which the eastern boundary of the part conveyed was described as First street, operated as an estoppel by deed, and precludes the grantees of Baker from denying that all of said lot not conveyed is rightfully a part of First street; (3) if there is not an estoppel by deed, the conduct of Baker operates as an estoppel in pais against a denial that said land is a part of the street.

1. The town-site act of 1867 makes no regulation for the making and preservation of a plat of town-sites entered under its provisions. The act of 1864 makes provision for such a plat and that act was left in force by the act of 1867, but it will be readily seen, by an examination of its provisions, that they are wholly inapplicable to the act of 1867. However this may be, none of the provisions of the act of 1864 were complied with in the preparation or filing of the maps or plats in question. We must look, therefore, to the act of 1867 alone to determine what the rights of individual occupants are, when the claims of such individuals come in conflict with the claims of the city to land as a street. In the construction of that act stress is laid by the city on the use of the word "lots" in said act, and it is said that there cannot be "lots" without streets on which lots can abut, and therefore that the act must have contemplated a survey of the prospective town into lots and blocks and streets before entry, and that the occupancy by individuals mentioned in the act was an occupancy of a piece of ground bearing relation to this survey as a lot. But we see nothing in the act to give the occupancy contemplated by the act so limited a meaning. The only place in the act where the word "lot" is used, is in the...