City of Bainbridge Island v. Brennan, No. 31816-4-II (WA 7/20/2005)
| Decision Date | 20 July 2005 |
| Docket Number | No. 31816-4-II,31816-4-II |
| Court | Washington Supreme Court |
| Parties | CITY OF BAINBRIDGE ISLAND, a Washington municipal corporation, Respondent and Cross-Appellant, v. ANNETTE BRENNAN; MARK W. BRENNAN; MARLENE ELSBREE HOOVER; MICHAEL HUDDLESTON; DEBORAH A. LANTZ and DALE F. LANTZ; AMY K. NAKATA and VERNON L. NAKATA; LISA C. NEAL and CHRISTOPHER L. NEAL; NICHOLS FAMILY, L.L.C.; CAROLA NICHOLS and SAMUEL J. NICHOLS; LORRAINE A. QUINN and ROBERT G. QUINN; COLONIAL MORTGAGE COMPANY, Appellants and Cross-Respondents, VINCENT R. LARSON and KARIN J. LARSON, Respondents and Cross-Appellants, MARGARET M. CHALLMAN; THE MARGARET M. CHALLMAN HOUSE TRUST; KAREN L. LEROY and DOUGLAS K. LEROY; JEAN R. MOEHRING and GLEN E. MOEHRING, Respondents, CATHERINE CRUIKSHANK and SHARON L. SAWYER; BEVERLY GRAVES and DONALD D. GRAVES; THE BEVERLY KRAUS TRUST; NANCY E. MCFEETERS and JAMES R. MCFEETERS; MARGARET LOUISE WILLIAMS; JAMES M. BURKHEIMER; JOHN F. REDMOND and HELEN E. REDMOND; ADDISION E. FENTON TESTAMENTARY TRUST; NANCY GRIFFITHS FENTON, TRUSTEE; FIRST MUTUAL SAVINGS BANK; RESIDENTIAL FUNDING CORPORATION; FLEET REAL ESTATE FUNDING CORPORATION; JOSIAH A. and ELINOR J. RINGLAND; NORTH SOUND BANK; UNIVERSITY SAVINGS BANK; GMAC MORTGAGE CORPORATION; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION; WILLIAM MICHAEL LUSSIER; BANK OF AMERICA; STANDARD FEDERAL BANK; MELLON MORTGAGE COMPANY; GEOFFREY B. GRISWOLD; and All Other Persons or Parties Unknown Claiming Any Right, Title, Estate, Lien or Interest on the Real Estate Described in the Complaint Herein, Defendants. |
Appeal from Superior Court of Kitsap County. Docket No: 99-2-00053-8. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. Leonard W Costello.
Counsel for Appellant(s), George Cunningham Jr Nickum, Attorney at Law, 120 Madrone Ln N Ste 206, PO Box 10291, Bainbridge Island, WA 98110-0291.
Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Counsel for Defendant(s), George Cunningham Jr Nickum, Attorney at Law, 120 Madrone Ln N Ste 206, PO Box 10291, Bainbridge Island, WA 98110-0291.
Phil A. Olbrechts, Ogden Murphy Wallace, Suite 2100, 1601 5th Avenue, Seattle, WA 98101-3621.
Kathryn E. Meyers Carruthers, Attorney at Law, 355 Ericksen Ave Ste 410, PO Box 10629, Bainbridge Island, WA 98110-0629.
Robert O. Conoley, Attorney at Law, 216 Ericksen Ave NE, Bainbridge Island, WA 98110-2820.
Craig William Miller, Davis Wright Tremaine LLP, 1501 4th Ave Ste 2600, Seattle, WA 98101-1664.
Counsel for Respondent(s), Thomas Francis Peterson, Socius Law Group PLLC, 601 Union St Ste 4950, Seattle, WA 98101-3951.
Joseph B. Genster, Hillis Clark Martin Peterson, 1221 2nd Ave 5th Fl, Seattle, WA 98101-3435.
Counsel for Respondent/Cross-Appellant, Melissa Sparks Arias, DAWN, PO Box 88007, Tukwila, WA 98138-2007.
Michael W. Gendler, Gendler & Mann, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.
Blair Baker Burroughs, Lawler Burroughs & Baker PC, 1001 4th Ave Plaza Ste 4300, Seattle, WA 98154-1192.
Randal W. Ebberson, Attorney at Law, 800 5th Ave Ste 4141, Seattle, WA 98104-3189.
Eric Clayton Frimodt, Attorney at Law, PO Box 90016, Bellevue, WA 98009-9016.
Michael Charles Walter, Keating Bucklin McCormack Inc PS, 800 5th Ave Ste 4141, Seattle, WA 98104-3189.
In this case we are asked to resolve the question of who owns tidelands fronting a road end on Bainbridge Island. Record owners1 of undivided fractional interests in these tidelands (`Tidelands') appeal a trial court order quieting title to the Tidelands in the City of Bainbridge Island; they contend that the trial court erred when it found that the original owner of the Tidelands had dedicated the property to the City and that the bona fide purchaser doctrine did not apply. Although the trial court did not rule on these issues, they also assert that the public is not entitled to a prescriptive easement in the Tidelands and that the City cannot dedicate the Tidelands to public use based on its status as a cotenant. In addition, the record owners contend that by agreement and acquiescence, a fence marked the boundary between public and private property; that the City's claims are barred by estoppel, laches, and abandonment; and that the trial court erred in requiring certain owners to remove trees and a fence from the right-of-way. Finally, the record owners contend that the trial court erred in dismissing their 42 U.S.C. sec. 1983 claims on summary judgment.
The City cross-appeals the trial court's determination that neighboring property owners need not remove a wooden bulkhead that the neighbors assert hampers access to the Tidelands. The Larsons, defendants in the original action and owners of a 1/80 undivided interest in the Tidelands, appeal the trial court's dismissal of their public trust doctrine claim on summary judgment.
We affirm in all respects.
A dedicated right-of-way laid out to navigable waters is presumed to provide access to the water's edge, and the record owners were on notice of the public nature of the Tidelands when they purchased their properties.2 We hold that there was no boundary change by acquiescence and reject the record owners' asserted affirmative defenses. We hold that the trial court did not abuse its discretion in ordering that a fence encroaching on the right-of-way be removed. And we affirm the trial court's summary judgment dismissing the owners' 42 U.S.C. sec. 1983 claims. But we decline to reverse the trial court's finding that a neighboring landowner need not remove a wooden bulkhead, and we hold that under the public trust doctrine, the public, including the Larsons, may use the neighboring tidelands when covered by water, but when the tide is out, the public has no right to walk across private property.
In 1898, Peder Erlandsen purchased 32 acres on Bainbridge Island adjoining the shores of Fletcher Bay.3 The purchase did not include the state-owned tidelands. In 1899, Erlandsen and several other local property owners petitioned the county commissioners to build a road from the Port Blakely Road across Erlandsen's property to the beach. The commissioners approved the project, and County Road No. 105 was built and opened within five years, perfecting a statutory dedication of the road to the meander line.4
Between 1904 and 1909, a wharf was built extending from the end of the road and west into the bay. Erlandsen applied to purchase the second class tidelands5 underlying the wharf, noting on his application that there was a wharf located on the tidelands operated free of cost by the local settlers and served by a county road.
In September 1911, Erlandsen platted a portion of his property (Government Lot 5) as the `Mountain View Tracts,' and he included the county road in the property description. Although the property description noted that the plat was bounded on the west by the high tide meander line, it did not mention whether the road also ended at the meander line. The plat dedicated for public use all streets and avenues shown on the plat map, which included the county road. Two days after he filed the plat, Erlandsen received title to all of the Tidelands adjoining his property.
In early 1914, a private company began regular ferry service between the Fletcher Bay wharf and the Kitsap Peninsula. The public accessed the service by the county road and the wharf. In 1920, Erlandsen and several other local residents petitioned the county commissioners to improve County Road No. 105. The county agreed to improve the road, but it also changed the route slightly, although the road still terminated at the wharf. This route change generated a lawsuit. See Hansen v. Harris, 123 Wash. 109, 212 P. 171 (1923) (). On May 7, 1923, Erlandsen dedicated an additional 40-foot right-of-way (east of the Tidelands) to accommodate the new route. After the improvement, county records referred to the road as the Donohue Road No. 1, with its western terminus designated as the wharf at Fletcher Bay.6
Around the time that the road improvements were completed, the ferries at the wharf began to carry cars. During this time, Erlandsen operated a store north of the road end Tidelands and lived behind the store. There was also a structure housing a dance hall and bowling alley about 100 yards southeast of the Tidelands. There was no charge to use the wharf and people would fish and swim off of the wharf and a float that was attached to it. In addition, people would use the beach around the wharf to dig clams and pull up their boats. Apparently it was not necessary to ask permission to use the wharf and there were not any `no trespassing' signs on the wharf or bulkhead.
Ferry service from the Fletcher Bay wharf ended around 1941, and the wharf was dismantled in 1947. But the public continued to use the road end tidelands to access the Puget Sound.
When Erlandsen died in 1943, his estate sold the property to Pearl Pontius. Pontius subdivided the property in 1947 and named the subdivision Westhampton. Pontius also dedicated for public use the roads depicted on the plat, including Donohue Road No. 1.
Pontius sold 19 of the Westhampton lots to James and Elinor Burkheimer in 1958 and deeded the Tidelands fronting the Donohue Road to the Burkheimers. The Burkheimers sold 15 of the lots with a 1/20 interest in the Tidelands. In 1967, the Burkheimers conveyed the remaining 5/20 interest to one of the lot owners.
After the wharf was torn down, the public accessed the beach by walking down a pathway that curved around the bulkhead that originally supported the wharf. As the area became more populated and developed, some of the Westhampton lot owners challenged the public's use of the Tidelands. In 1986, they erected a fence and...
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