City of Seattle v. Smithers

• Citation: 37 Wash. 119,79 P. 615
• Parties: CITY OF SEATTLE v. SMITHERS et al.
• Decision Date: 20 February 1905
• Court: United States State Supreme Court of Washington

79 P. 615

37 Wash. 119

CITY OF SEATTLE v. SMITHERS et al.

Supreme Court of Washington

February 20, 1905

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Suit by the city of Seattle against E. M. Smithers and others. From a judgment for defendants, complainant appeals. Reversed.

Mitchell Gilliam and Hugh A. Talt, for appellant.

Fulton & Faben, for respondents.

MOUNT C.J.

This action was brought by appellant to perpetually enjoin the respondents from fencing up and otherwise obstructing a road known as the 'County Road,' for the reason that the said road is a public highway, and the obstruction thereof unlawful. The road in question exends in a northerly direction from the north end of Dexter avenue, in the city of Seattle, to and beyond the town of Fremont, across and upon a certain tract of land owned by respondent Smithers, and lying within the corporate limits of the city of Seattle. Appellant bases its contention upon the fact that the road in question is a public highway by prescription and adverse user. Upon the trial on the merits the lower court made findings of fact, and thereupon entered a decree dismissing the action. This appeal is taken from that decree.

The evidence is not brought here, but the appellant relies solely upon findings as made by the lower court. Respondents move to dismiss the appeal upon the ground that the case, being an equity case, must be tried here de novo, and that, since the evidence is not brought here, no such trial can be had. This court has held that 'it is not necessary that there should be any statement of facts in order that an appeal should be entertained by this court for the purpose of determining whether or not the conclusions of law and decree were warranted by the findings of fact.' Watson v Sawyer, 12 Wash. 35, 40 P. 413, 41 P. 43. For the purposes of this appeal, both parties are bound by the findings made by the lower court. If these findings do not support the decree, but show that the appellant is entitled to the decree prayed for, the case must be reversed. Otherwise it must be affirmed. The motion must therefore be denied.

The principal findings made by the lower court, and the only ones necessary to be considered upon this appeal, are as follows:

'(3) That there is now, and for more than twenty-five years immediately preceding the commencement of this action, and ever since the year 1878, has been, a plainly marked and defined and generally traveled road across said Smithers tract of land, and leading in a northerly direction from the northerly extension of said Dexter avenue from said city of Seattle to and beyond the town of Fremont, which said road has, during all of said time, and ever since the said year 1878, been generally, habitually, and universally traveled by the citizens and residents of said city of Seattle, and by the public at large, adversely continuously, and uninterruptedly, down to the month of February, 1903.

'(4) That prior to the year 1890, during which year that certain road or highway known as the 'Boulevard' was completed, said road across said Smithers tract, which was during all of said time, and is now, known and designated as the 'County Road,' was the generally, universally, and only traveled road between said city of Seattle to and beyond said town of Fremont, and that, ever since the completion of said road or highway known as the 'Boulevard,' said road across said Smithers tract, known and designated as the 'County Road,' as aforesaid, has been continuously, adversely, and uninterruptedly used by said citizens of Seattle and the general public down to said month of February, 1903.

'(5) That during said month of February, 1903, and immediately preceding the commencement of this action, said defendants, and each of them, obstructed said roadway across said Smithers tract, and prevented the same from being used by the citizens of Seattle and the general public, by means of fences and ditches erected and excavated across the same, and by means of plowing the same up, and that they threatened and held out, and continue to threaten and hold out, that it is their purpose and intention to obstruct said roadway across said Smithers tract so as to prevent the public or any person or persons whomsoever from using or traveling the same.'

'(9) That neither said city of Seattle, nor the county of King, wherein said city is situate, has, by its proper

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