Bradley v. Spokane & I.E.R. Co.

• Decision Date: 05 May 1914
• Docket Number: 11,525.
• Citation: 79 Wash. 455,140 P. 688
• Court: Washington Supreme Court
• Parties: BRADLEY v. SPOKANE & I. E. R. CO.

140 P. 688

79 Wash. 455

BRADLEY v. SPOKANE & I. E. R. CO.

No. 11,525.

Supreme Court of Washington

May 5, 1914

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Cyrus Bradley against the Spokane & Inland Empire Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. H Smiley, of Spokane, for appellant.

Graves Kizer & Graves, of Spokane, for respondent.

MORRIS, J.

In April, 1888, the appellant and G. B. Dennis, the then owners of the property, platted an addition known as Dennis &amp Bradley's addition to Spokane Falls. At the time of the filing of the plat, the lands embraced within this addition were without the city limits of Spokane, but for over 20 years they have been within the corporate limits of the city. The dedication plat was in the form of a deed containing this language: 'The streets and alleys as on said map named and indicated we do dedicate to the public, to be used as highways, reserving and excepting always from said dedication, to ourselves, our heirs and assigns, the rights in said streets and alleys to lay down and make use of for all lawful purposes, water and gas pipes, and electric wires and to erect poles for said purpose, and to construct, and operate in said street and alleys, cable and motor railways, excepting also from said dedication of streets and alleys the fee of the lands therein contained to such extent as that should the same or any part thereof be vacated by proper authority, the part or parts vacated shall revert to ourselves, our heirs and assigns. Nothing in this map or these presents is to be construed as a conveyance of or in any manner affecting the title of such parts of said land first described herein as are shown to be the Spokane river and the strips of land between said river and the platted lots and streets, we reserving said land and river as our private property as though these presents were not made, but we hereby dedicate to the public the right to build and maintain a bridge across said river from the east end of Front street to Superior avenue, as the same is marked upon said map, and to use the bed of said river between said points to erect and maintain piers for such bridge.' Subsequently the lots in this addition passed into the ownership of the respondent, all of the deeds in the chain of title from appellant to respondent being full warranty deeds without reservation or exception. In January, 1906, the city passed two ordinances vacating the streets and alleys in this addition, and respondent, as owner of the abutting lots, took possession of the vacated streets and alleys and has since so remained in possession. In August, 1912, the appellant brought this action in ejectment to recover possession of an undivided one-half interest in the portions of the streets and alleys so vacated, contending that he had never conveyed or assigned his right or title to the portions of the streets and alleys so vacated, and had never conveyed or assigned his right to possession of the same on their vacation, and that this right and title still remained in him under the reservation in the deed of dedication. Judgment went against him in the lower court, and he has appealed.

The theory upon which appellant seeks a reversal is that, at the time of this dedication, it was the rule in this state that the ordinary statutory dedication passed the fee in the streets to the municipality, to be held in trust for public purposes and the abutting property owners on vacation; that the dedicators in this plat, having such rule in mind, desired to eliminate this plat from the operation of such rule, and with that purpose in view employed language expressing an intention that this dedication should pass the fee in the streets and alleys to the municipality for public purposes only until such time as there should be a vacation of the streets and alleys, and that upon such vacation the fee should remain in themselves. It is probable that language may be found in one of the earlier cases that lends support to such a theory. In State ex rel. Grinsfelder v. Spokane Street Ry. Co., 19 Wash. 518, 53 P. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739, the court used this language: 'In platted additions to a town when streets are laid out thereon the fee belongs to the public.'

In a subsequent case ( Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362), this expression in the Grinsfelder Case was used as authority for the contention then being made that the ownership of the fee in public streets was in the city. In disposing of this contention it was said: 'But it is not accurate to designate the public control of streets and highways in this state as a fee. The statutes declare the effect and purpose of the dedication, to the public, by a city plat such as the one in controversy here. Section 1264, Bal. Code, declares them public highways, and section 1266 puts them under control of the corporate authorities. Sections 1269 and 1270 provide that, upon vacation of a street, it shall vest in equal proportions in the abutting lot owners, and section 1276 declares the effect of dedication. But the case of State ex rel. Grinsfelder v. Spokane Street Ry. Co., 19 Wash 518, 53 P. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739, is cited by counsel for respondent as sustaining ownership of the fee in the city. In that case it was urged by the defendant, an electric railway company, in answer to mandamus to compel its operation, that it had no city franchise through a platted addition, but only a license from the owner of the property platted. The point the court had in view was the effect of a dedication by plat to the public, and it was held that the plat, when executed, was to the public; that is, if conditions were attached to the dedication, the conditions, if inconsistent, fell, and the dedication was valid for the purposes intended. Section 1276, supra, was mentioned, and the case of City of Des Moines v. Hall, 24 Iowa, 234, cited as to the effect of the statutory...