Bulkley v. Dunkin

• Court: Washington Supreme Court
• Writing for the Court: [131 Wash. 423] BRIDGES, J.
• Citation: Bulkley v. Dunkin, 131 Wash. 422, 230 P. 429 (Wash. 1924)
• Decision Date: 21 November 1924
• Docket Number: 18582.
• Parties: BULKLEY v. DUNKIN et al.

230 P. 429

131 Wash. 422

BULKLEY v. DUNKIN et al.

No. 18582.

Supreme Court of Washington

November 21, 1924

Department 2.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Suit by Lulu A. Bulkley, individually and as administratrix, against Robert Dunkin and Gertie Dunkin. From judgment rendered plaintiff appeals. Affirmed.

R. L Campbell, of Spokane, for appellant.

Hamblen & Gilbert, of Spokane, for respondents.

BRIDGES, J.

In 1899 a Mr. Doerr was the owner of a tract of land 37 1/2 feet in width, facing on one of the streets of the city of Spokane and a Mr. Dornberg was the owner of the adjoining 37 1/2 feet. During that year each constructed a dwelling on his own land. There was a space of a few feet between the houses which thereafter was used by them for a driveway, which was located, in part, on the land of each. Later appellant became the owner of one of these tracts of land and respondents the owners of the other. Until about the time this suit was brought, this driveway was used by each owner, and in later years the appellant and respondents jointly constructed an approach to the driveway. In 1921 the respondents refused to permit appellant to use that portion of the driveway which was on their land and this suit resulted. After trial the court entered a judgment enjoining the respondents from in any way interfering with the appellant's use of the driveway. That judgment stated that the driveway was located one-half upon the land of each of the parties. Later the appellant discovered that only 18 inches of it was on her land and the remainder was on that of the respondents. She then asked the court to correct the judgment in that respect. Testimony was taken showing the exact location of the driveway, and also some testimony was received, over appellant's objection, concerning the agreement between the original owners of the two tracts of land about the driveway. It is admitted that this last-mentioned testimony was in substance the same as had been given at the previous hearing. During the second hearing the trial court became convinced that its original judgment was erroneous and set it aside, and entered the present judgment, to the effect that the use of the driveway would be limited to the personal use thereof by the owners of the respective lands and their families, and that the easement 'shall continue only so long as the present improvements upon said respective tracts remain substantially the same as they now are, and that whenever the owner of said tracts shall commence the construction of improvements thereon which shall either substantially change the present structures or which shall necessarily require the use of any portion of said driveway, then the said easement shall forthwith cease and determine.'

The appellant contends that the court did not have any right or power to set aside its former judgment and enter another to a contrary effect. We...