Boise City By and Through Amyx v. Fails

• Citation: 499 P.2d 326,94 Idaho 840
• Decision Date: 14 July 1972
• Docket Number: No. 10926,10926
• Parties: BOISE CITY, a municipal corporation of the State of Idaho By and Through its Mayor, Jay S. AMYX, et al., Plaintiffs-Appellants, v. Mabel C. FAILS, a widow and Charles R. Parks and Joan E. Parks, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 326

499 P.2d 326

94 Idaho 840

BOISE CITY, a municipal corporation of the State of Idaho By and Through its Mayor, Jay S. AMYX, et al., Plaintiffs-Appellants, v. Mabel C. FAILS, a widow and Charles R. Parks and Joan E. Parks, husband and wife, Defendants-Respondents.

No. 10926.

Supreme Court of Idaho.

July 14, 1972.

Elbert E. Gass, Boise, for plaintiffs-appellants.

Z. Reed Millar, Boise, for Fails.

William C. Roden, Boise, for Parks.

McFADDEN, Justice.

Plaintiff Boise City instituted this action against Mabel C. Fails, defendant, who was the record owner of the property involved herein, and also against Charles R. Parks and his wife, Joan E. Parks, contract purchasers of the Fails property. The city sought by the action to enjoin the respondents from encroaching on and obstructing Illinois street (formerly designated as Ash street). Summary judgments were sought by both the appellant city and also by the respondents. Summary judgment was entered for respondents from which judgment the city appealed.

The facts are virtually without dispute and the sole issue before this Court is whether the provisions of I.C. § 40-104 ¹ as it read prior to amendment in 1963 are applicable under the facts of this case.

Briefly, the record discloses that in 1902 one Joseph H. Gallaher subdivided a tract of land into lots, blocks and streets, designating the tract as 'Rosedale, Gallaher's subdivision, Second Filing,' which plat was filed in the office of the county recorder on April 28, 1902. Ash street was designated as one of the streets in the subdivision. Later at some undisclosed time, the name of Ash street was changed to 'Illinois Street,' which is the street involved in this action.

Subsequent to the filing of the plat, Gallaher sold lots to a number of individuals describing the property in the various conveyances by lot and block number as referred to in the plat. Sales of such lots by reference to lot and block following recording of a plat constitutes a dedication of the streets and alleys to public use. I.C. § 50-1309 (1967 act); I.C. § 50-2505 (prior to 1967 amendment, first enacted S.L. 1893, p. 97, § 93 at p. 127, now I.C. § 50-1312); Boise City v. Hon, 14 Idaho 272, 94 P. 167 (1908); Shaw v. Johnston, 17 Idaho 676, 107 P. 399 (1910); Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913); Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969).

Respondent Mabel C. Fails is the record owner of the land encompassed in Block 7 of the subdivision, which lies south of Pennsylvania avenue and north of Iowa avenue. The street just to the west of Block 7 is Illinois street. A number of years ago Mrs. Fails and her husband, now deceased, after purchasing the land, constructed a dwelling and located it so that it encroached upon the areas dedicated as Illinois street. Further, the Fails agreed with their neighbor on a boundary line between their property and the land in Block 8 immediately to the west. The Fails constructed a fence along the boundary (in the middle of Illinois street) and planted trees alongside the fence.

In 1968 Mrs. Fails, after her deceased husband's estate was probated and decreed to her, entered into an agreement with respondents Mr. and Mrs. Parks, and executed a warranty deed, describing the property involved by metes and bounds, which description encompasses the westerly fifty feet of lots 1, 2, 3 and 4 of Block 7, together with the easterly 30 feet of Illinois street, adjacent to and along the four listed lots of Block 7.

Illinois street has never been opened or worked by the county or by the city. In 1964 by Ordinance No. 2688, the appellant Boise City annexed the property encompassed in the subdivision to the City.

The appellant contends that the provisions of I.C. § 40-104 are inapplicable to streets dedicated by the filing of a subdivision plat. The respondents assert that this statutory provision is controlling of the case here. Respondents contend that the easterly half of Illinois street, which has not been 'worked or used for the period of five years' is no longer a 'highway' for any purpose whatever, and hence they are the owners of the easterly thirty feet of Illinois street as platted adjoining lots 1 through 4 of Block 7. Respondents cite cases from California, Utah and Washington wherein statutes either the same or comparable to I.C. § 40-104 were interpreted in accordance with their views. Among the cases cited are: Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111 (1909); Howell v. King County, 16 Wash.2d 557, 134 P.2d 80 (1943), relying in part on Murphy v. King County, 45 Wash. 587, 88 P. 1115 (1970); Myers v. Daubenbiss, 84 Cal. 1, 23 P. 1027 (1890); Ferroggiaro v. Board of Pub. Works, 52 Cal.App. 393, 198 P. 810 (1921). Respondents further contend that the legislature by amending the statute in 1963 intended to make a change in the statutory provision, and by the 1963 amendment limiting the applicability of the statute to 'a road established by prescription and not worked or used for the period of five years' the legislature recognized the prior applicability of the statute to streets laid out in subdivision plats.

Solution to the issue presented here is to be found in consideration of the historical development of I.C. § 40-104, ² as well as the development of the statutes pertaining to the filing of subdivision plats. ³ It is our conclusion that both of these areas of statutory law are interrelated.

Is is our further conclusion that the cases cited by respondents from other jurisdictions, supra, are not pertinent here for the reasons set out herein.

The review of the statutory provisions is essential to bring into focus the state of the law at the time the 'Rosedale, Gallaher's Subdivision, Second Filing' was recorded with the county recorder of Ada County. To appreciate the statutory pattern and legislative purpose one must first consider the conditions prevailing in the territory of Idaho at the time of the enactment of the progenitor of I.C. § 40-104 and the various platting statutes. The state was sparsely populated, roads as we know them today were few, the number of actual villages, towns and cities were few, and the streets in such settlements somewhat primitive. In 1887 when I.C. § 40-104 was first enacted the situation was but little changed. Highways, as defined, were originally in many instances merely paths or trails that by use had been expanded to the point where they could be recognized as roads. If the constituted authority decided to lay out a road, and if it was not used for a period of time, the statutes originally provided it could not be considered as a road or highway unless it had been opened within four years. Later this was changed to put the thrust the other way, i. e. of a road was laid out, or actually used for five years, it was recognized as being a highway, but under the statute failure to use it for a period of five years terminated it as a highway for any purpose.

Shortly after statehood, the legislature in 1893 enacted a comprehensive statute providing for the organization, government and powers of cities and villages. As a part of this act, the legislature provided a statute dealing with the filing of townsite and subdivision plats. This comprehensive plan envisioned the creation of many new towns and villages and the expansion of the municipal boundaries of existing cities and villages through the annexing of platted grounds which were nearby (referred to as 'out lots' or 'suburban lots,' meaning outside the city limits) or adjacent (referred to as 'additions to'). Control over the streets and alleys of such platted properties was vested in the municipal authorities, if a part of a city or in the boards of county commissioners, if the platted properties were outside the corporate municipal limits. It should be emphasized that from the outset the law dealing with these platted grounds, as well as the statutes governing the authority and power of the commissioners, provided means for the vacation of any of the streets and alleys, as well as the vacating of the plats or parts thereof.

Since early times this Court has deemed those statutes relating to such duly recorded plats as providing the exclusive procedure for vacation streets dedicated pursuant to such plats. For example, in Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913), this Court quoted the following from Boise City v. Hon, 14 Idaho 272, 94 P. 167 (1908):

"Where the owner of land plats the same into lots, blocks, streets, and alleys, and files such plat with the proper recorder of deeds, and sells lots therein with reference to such plat, he and his grantees are estopped from revoking the dedication of such streets and alleys." 23 Idaho at 715, 132 P. at 576.

The opinion then continued in language applicable to this case.

'The authorities seem to be clear to the effect that, after the dedication by filing of a plat showing streets and alleys, such dedication estops the owner of land dedicated and the grantors of the original dedication from setting up any right, title, or interest in or to the land designated as streets or alleys, and the only way that the title to such land can revert is by having the same vacated in a manner and method provided by law.' 23 Idaho at 715, 132 P. at 576.

Even though what is now I.C. § 40-104 was not mentioned in the opinion of Hanson v. Proffer, supra, nonetheless it was part of the statutory law of this state at the time of that opinion. ⁴ In the same vein this Court has stringently held to the theory that the governing bodies (cities, counties or the state) have broad authority over use of the streets and highways, and may in proper cases remove and prevent anything which is an encroachment upon or interferes with the use of a street or highway. Rief v. Mountain States Tel. & Tel. Co., 63 Idaho 418, 120 P.2d 823 (1941); Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948); Boise City v....