Brown v. Olmsted

• Decision Date: 03 July 1956
• Docket Number: No. 33617,33617
• Parties: Richard I. BROWN and Stoncia L. Brown, his wife, and Charles F. Maurer and Eileen Maurer, his wife, Respondents, v. Eldon F. OLMSTED and Dorothy C. Olmsted, his wife, Appellants, and Kitsap County, a municipal corporation, Defendant, Arthur J. Marks and Edith Marks, his wife; William M. Prigger and Gladys M. Prigger, his wife, Raymond W. Murray and Dorothy Murray, his wife, and Ethel M. Whitney, a widow, Intervener-Appellants.
• Court: Washington Supreme Court

Page 210

49 Wn.2d 210

299 P.2d 564

Richard I. BROWN and Stoncia L. Brown, his wife, and Charles

F. Maurer and Eileen Maurer, his wife, Respondents, v. Eldon F. OLMSTED and Dorothy C. Olmsted, his wife, Appellants, and Kitsap County, a municipal corporation, Defendant, Arthur J. Marks and Edith Marks, his wife; William M.

Prigger and Gladys M. Prigger, his wife, Raymond

W. Murray and Dorothy Murray, his wife,

and Ethel M. Whitney, a widow,

Intervener-Appellants.

No. 33617.

Supreme Court of Washington, Department 1.

July 3, 1956.

Morrissey, Hedrick & Dunham, John E. Hedrick, Seattle, for appellants.

Frederick B. Cohen, John E. Bowen, Bremerton, for respondents.

HILL, Justice.

The plaintiffs seek to enjoin the defendants and interveners from trespassing on their property, and seek damages from defendants Eldon F. Olmsted and his wife for prior trespasses. From a decree enjoining any further trespasses and awarding three hundred fifty dollars in damages for prior trespasses, defendants Olmsted and the interveners appeal. (Hereinafter, 'defendants' refers only to Eldon F. Olmsted and his wife.)

We are here concerned with whether the defendants and interveners have private easements over two thirty-foot strips of land in Kitsap county, which strips were at one time platted as parts of streets in a plat designated 'Re-Plat of Port Orchard City, Kitsap County, Wash.,' filed for record April 11, 1894, in the office of the auditor of Kitsap county. All the property covered by this plat was then and has been at all times since, outside the limits of any incorporated city or town.

All of the streets and alleys shown on the plat were vacated in 1899 in consequence of their having remained 'unopened' for a period of five years following the filing of the plat. In consequence of such vacation, Kitsap county and the public lost all rights to open and use the streets and alleys shown on the plat. The vacation of such streets and alleys is predicated upon § 32, chapter 19, Laws of 1889-90, p. 603, which read as follows:

'Any county road, or part thereof, which has heretofore been or may hereafter be authorized, which remains unopened for public use for the space of five years after the order is made or authority granted for opening the same, shall be and the same is hereby vacated, and the authority for building the same barred by lapse of time.'

We have repeatedly held that this statute, until its amendment in 1909, applied to all platted streets and alleys outside of cities and towns. See Turner v. Davisson, 1955, 47 Wash.2d 375, 287 P.2d 726; Van Sant v. City of Seattle, 1955, 47 Wash.2d 196, 287 P.2d 130; Gillis v. King County, 1953, 42 Wash.2d 373, 255 P.2d 546 (rule recognized, but limited to streets unopened for five years prior to 1909, in which year the statute was amended. Laws of 1909, chapter 90, § 1, p. 188); Burkhard v. Bowen, 1949, 32 Wash.2d 613, 203 P.2d 361; Howell v. King County, 1943, 16 Wash.2d 557, 134 P.2d 80, 150 A.L.R. 640; Lewis v. City of Seattle, 1933, 174 Wash. 219, 24 P.2d 427, 27 P.2d 1119; Tamblin v. Crowley, 1917, 99 Wash. 133, 168 P. 982; Smith v. King County, 1914, 80 Wash. 273, 141 P. 695; Cheney v. King County, 1913, 72 Wash. 490, 130 P. 893; Mohr v. Pierce County, 1911, 65 Wash. 370, 118 P. 321, 119 P. 747 (rule recognized, but sufficient improvements and a sufficient public user were found to amount to an 'opening'); Murphy v. King County, 1907, 45 Wash. 587, 88 P. 1115.

While such a vacation put an end to all interest of the public in the platted streets and alleys, it did not affect private easements over the streets by those who had bought with reference to the plat and in reliance thereon. Title to the vacated streets and alleys continued to be subject to such private easements. Burkhard v. Bowen, supra; Howell v. King County, supra; Van Buren v. Trumbull, 1916, 92 Wash. 691, 159 P. 891, L.R.A.1917A, 1120.

In the plat Block 54 was bounded on the north by Prospect street and on the west by First avenue. Directly across Prospect street was Block 28, and directly across First avenue was Block 55. Upon the 1899 vacation by operation of law of failure to open the platted streets, the title of the owners of Block 54 to the south half of Prospect street adjoining Block 54 on the north and to the east half of First avenue adjoining Block 54 on the west, as shown on the plat, was freed from the public easement imposed by the dedication, Bradley v. Spokane & Inland Empire R. Co., 1914, 79 Wash. 455, 140 P. 688, L.R.A.1917C, 225, but remained subject, as indicated, to any private rights of way or easements possessed by those who had acquired title with reference to the plat and in reliance thereon.

By order of the county commissioners made and entered in 1908, a number of lots and blocks in the plat were vacated, including Blocks 28 and 55, which vacation included 'also all streets, alleys and avenues lying within and adjacent to and adjoining upon said above described lots and blocks.' This included the portions of Prospect street south of Block 28 and of First avenue east of Block 55. The effect of this vacation was to clear the record title of any public interest or easement in the vacated streets. Turner v. Davisson, supra. The official order of vacation, being a public record, was in legal effect an amendment of the plat, and all who brought thereafter took with notice of the change. Hagen v. Bolcom Mills, 1913, 74 Wash. 462, 133 P. 1000, 134 P. 1051.

This vacation by order of the county commissioners did not, of course, divest anyone of any private right of way or easement which he may have had over the streets thus vacated.

Both Prospect street and First avenue, as platted, were sixty feet in width. The two thirty-foot strips, one along the north side and the other along the west side of Block 54, now owned by the plaintiffs, are the loci in quo of the present controversy. The defendants and interveners, who are the owners of properties which include the vacated north half of Prospect street south of the former Block 28 and the vacated west half of First avenue east of the former Block 55, claim easements for ingress and egress to their properties over the...