Burkhard v. Bowen

• Decision Date: 03 March 1949
• Docket Number: 30599.
• Citation: 203 P.2d 361,32 Wn.2d 613
• Parties: BURKHARD v. BOWEN et ux.
• Court: Washington Supreme Court

203 P.2d 361

32 Wn.2d 613

BURKHARD v. BOWEN et ux.

No. 30599.

Supreme Court of Washington

March 3, 1949

Department 1

Quiet title action by W. J. Burkhard against Fred S. Bowen and Bella Bowen, husband and wife, and others, wherein named defendants cross-complained. From an adverse judgment plaintiff appeals.

Judgment affirmed.

HILL J., dissenting.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

William Lee Parr, of Olympia, for appellant.

Bigelow & Manier, of Olympia, for respondents.

JEFFERS Chief Justice.

This action was instituted by W. J. Burkhard, as the owner of lots 1, 2, 3, 4, 5, 9, 10, 11 and 12, block 29, Phoenix Park addition to Olympia, against Fred S. Bowen and Bella Bowen his wife, Holger E. Jensen and Nola Jensen, his wife, and the city of Olympia, to quiet title to a part of a fifteen foot alley running easterly and westerly through block 29. Defendants Fred S. Bowen and wife were the only defendants who filed a formal appearance in the case, so far as the record Before us shows.

These defendants appeared by amended answer and cross-complaint, in which they admitted all the allegations of the complaint, except the following allegations of paragraph VIII, which they denied:

'That from the five years after 1890 this alley was overgrown with trees and dense underbrush and that said alley was never opened for use by the county within five years after the year 1890 and that said alley was never opened prior to 1909 and in fact has never been opened as an alley for the use of the public and at the present time said alley is closed.'

By their cross-complaint, these answering defendants alleged that, irrespective of the rights of the general public or plaintiff, they claim, and at all times have claimed, that they have a right to use such alley for the purpose of access to their property, and that regardless of the rights or the loss of rights of the general public, they, as owners of their property, have a private right to use the alley and any part thereof which may be necessary for the purpose of such access.

These defendants prayed that the action of plaintiff be dismissed, and that they have judgment for their costs and disbursements, and for such other relief as the court may deem meet and proper in the premises.

The matter came on for hearing Before the court on November 5, 1947, and thereafter certain witnesses were sworn and testified, and certain exhibits were introduced.

There is no dispute as to the material facts in this case, as we view them. On October 19, 1943, plaintiff acquired from Rudolph Johnson (who acquired title as Rudolph Jensen) and Mary Johnson, his wife, title to lots 1, 2, 3, 4, 9, 10, 11 and 12, in block 29, Phoenix Park addition, according to the plat thereof recorded in volume 30 of Plats, on page 49, records of Thurston county, under and by virtue of a warranty deed. On March 28, 1944, plaintiff acquired from Rudolph Jensen, Jr., and Wilda L. Jensen, his wife, title to lot 5, block 29, Phoenix Park addition, according to the plat thereof recorded in volume 30 of Plats, page 49.

Defendants Bowen are the owners of lots 7 and 8, block 29, Phoenix Park addition, according to the recorded plat of Phoenix Park addition, having acquired their property in 1922. Lots 1, 2, 3, 4 and 5 are shown on the recorded plat as being on the north side of a fifteen foot alley which, as stated, runs easterly and westerly through block 29. Lots 9, 10, 11 and 12 are on the south side of such alley, and lots 7 and 8, owned by defendants, are immediately to the east of lot 9 and also on the south side of the alley.

Phoenix Park addition to Olympia was dedicated and a plat thereof filed in the auditor's office in Thurston county, on April 4, 1889. This addition, at the time it was platted, was outside the limits of the city of Olympia, and continued to remain outside the city limits until March 18, 1930. The evidence is undisputed that for more than twenty years after April 4, 1889, or until about 1910, no clearing or improvement of any kind was made upon block 29 of this addition, and the land remained either in forest or dense undergrowth. Sometime during the year 1910, lots 1, 2, 3, 4, 9, 10, 11 and 12 came into the possession of a family named Jensen, apparently sometimes written Johnson, and this family, as shown by the testimony of Rudolph Johnson, began to clear the property shortly after having purchased same, and about the year 1912 built a house upon the property. Shortly after the house was built, a fence was erected, entirely enclosing the lots last above mentioned. At the time they built the house, they also built a shed, which shed extended out into the alley. The Jensens at that time used a portion of the alley for a driveway, which extended from their west boundary to the shed and was used by the Jensens for access to and from their property. Later on, probably about 1920, the Jensens converted the shed into a garage, and the driveway was then used as access to the garage.

It further appears that the portion of the alley which lies between the lots then owned by the Jensens and now owned by plaintiff was the only portion of the alley in block 29 which was ever opened or ever used, that being the portion of the alley between lots 1, 2, 3 and 4 on the north, and 9, 10, 11 and 12 on the south. It does not appear that the driveway was ever used by the public, but has only been used by plaintiff and his predecessors in interest for their convenience in delivering and having delivered goods to parties in possession. It does not appear that that part of the alley to the north of lots 7 and 8, now owned by defendants Bowen, has ever been opened to use at any time or for any purpose.

The court made, among others, the following findings of fact:

'XII. That the defendants, Fred S. Bowen and wire, have at all times claimed the right to use the alley for the purpose of access to their property even though the same was not used by the public, and that when they acquired title to their property the said property being described by numbered lots in the numbered blocks, they took title with full confidence that the streets and alleys as platted existed for the use and benefit of the various property owners within said block and addition, and depended upon the fact that they were so platted and would be made available for their use when the same was required.

'XIII. That the plaintiff, when he acquired title so the property hereinBefore described, took and accepted the same with the full knowledge that the same was platted property and that there existed streets and alleys as shown upon the plat, and that such streets, and in particular the alley in dispute, was platted across his property in an easterly and westerly direction, and that the various property owners within the said block had a private right to the use of the said alley irrespective of the rights of the general public.'

The court concluded:

'1. That the alley in dispute in said block 29 of Phoenix Park addition was not opened and used by the public within the period of five (5) years from the date of dedication and therefore the public lost the right to use the said alley and the plaintiff is entitled to judgment against the city of Olympia as prayed for in the complaint.

'2. That the plaintiff is estopped from claiming as against the defendants, Fred S. Bowen and wife, that the alley has been vacated so far as their private right to use it is concerned, and the said defendants, Fred S. Bowen and wife are entitled to a judgment against the plaintiff denying the prayer of the complaint, and affirming in the said defendants the right to use the said alley and each and every part thereof, for their private and ordinary use and purposes for which the alley was dedicated.

'3. That the defendants, Fred S. Bowen and wife are entitled to recover their costs herein against the plaintiff.'

On February 16, 1948, the court made and entered the following judgment:

'It is hereby ordered, adjudged and decreed:

'1. That the plaintiff be and he is hereby granted judgment against the city of Olympia decreeing that the right of the public to the use of the alley in block 29 of Phoenix Park addition to Olympia, Thurston county, Washington, is lost because of the failure to open the same for public use within the time required by the statute.

'2. That the defendants, Fred S. Bowen and Bella Bowen, husband and wife, be and they are hereby granted judgment against the plaintiff dismissing his action herein so far as their right to use the said alley in said block 29 of Phoenix Park addition to Olympia, Thurston county, Washington, for private purposes is concerned, and affirming in them the right to the use of the said alley for all ordinary and reasonable private use thereof.

'3. That the defendants, Fred S. Bowen and Bella Bowen, husband and wife, be and they are hereby granted judgment against the plaintiff for their costs and disbursements in this action.'

Plaintiff has appealed from the judgment entered, and makes the following assignment of error:

'That the court erred in holding that the alley in controversy was automatically vacated as a matter of law except as to the respondents Bowen, who are entitled to use the alley in question because of being a cograntee of property in a plat wherein the alley in question was dedicated, for the reason that, if the said respondents Bowen ever had any private easement or right to the use of said property in question as a co-grantee, it has long since been lost by the adverse possession of appellant and his predecessors in interest.' The judgment is undoubtedly based upon the rule announced in the case of Van Buren v. Trumbull, 92 Wash. 691, 159 P....