City of Seattle v. Hinckley

• Decision Date: 20 February 1912
• Citation: 67 Wash. 273,121 P. 444
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. HINCKLEY et al.

121 P. 444

67 Wash. 273

CITY OF SEATTLE v. HINCKLEY et al.

Supreme Court of Washington

February 20, 1912

Department 2. Appeal from Superior Court, King County; Arthur E Griffin, Judge.

Action by the City of Seattle against Lyman Hinckley and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Peterson & Macbride, for appellants.

Scott Calhoun and Howard M. Findley, for respondent.

ELLIS, J.

This action was brought by the city of Seattle to quiet title to a trip of land 30 feet wide known as 'Galer street,' being the north 30 feet of lot 1, section 30, township 25 north, range 4 east, W. M. The complaint alleges that for the past 20 years this strip has been openly, continuously adversely and uninterruptedly used and occupied under a claim of right as a public street by the city, its inhabitants, and the public generally. These allegations were traversed by the answer, which also sets up matter in estoppel against the city. Upon the issues so framed the cause was tried to the court and a decree entered establishing the right of the city to the strip in question for street purposes, whereupon this appeal was taken by the defendants.

The evidence introduced by the respondent city shows that one T D. Hinckley, father of the appellant Lyman Hinckley, prior to 1889 owned a tract of land including this strip; that in 1889 or 1890 he removed his fence from the strip, and stated at the time that he was throwing it open to the public; that ever since that time fences have been maintained on both sides of the strip; that in July, 1889, the Union Water Company purchased from T. D. Hinckley and wife a strip of land 53 feet wide south of and adjoining the strip in question, and afterwards erected a pumping station thereon and laid its water pipes in the Galer street strip here in question, claiming the right to do so by license from the city, and without either permission or objection, but by mere acquiescence so far as the record shows, on the part of T. D Hinckley; that some time prior to 1892 T. D. Hinckley and wife deeded the 30-foot strip in question to the city for use as a public street; that soon after the strip was thrown open a sidewalk was built along the south side thereof, apparently by Hinckley and the water company, and that the strip has ever since been known as Galer street and has ever since been used by the public as a street and thoroughfare very largely by pedestrians and to a considerable extent by teams; that the street was never graded or improved by the city, but there was some evidence tending to show that the sidewalk had been repaired by workmen in the city's employ. While there was no evidence that the city ever accepted the conveyance of this strip from T. D. Hinckley and wife, and the deed was never recorded, the admission that the deed was made is strong evidence of an intention on their part to dedicate the strip for use as a public street when it was thrown open. The evidence also shows that on March 25, 1909, after the death of T. D. Hinckley, partition deeds of the land owned by him were made between his widow and children, among them the appellant Lyman Hinckley; that these deeds referred to this strip as Galer street, and the descriptions therein were made with reference to it as a boundary line of the land partitioned, and that the south line of this strip was designated in the deed to Lyman Hinckley as the south line of Galer street and the north line of the tract deeded to him. This Galer street strip was not included in the decree of distribution of the T. D. Hinckley estate, nor in any of the partition deeds. The strip of land here in question extends from Dexter avenue on the west to Westlake avenue on the east.

We are of the opinion that this evidence amply established a dedication of this strip of land to the public for use as a street by T. D. Hinckley and wife. 'In making a dedication no particular formalities are necessary. The statute of frauds is not applicable in such cases, and therefore a deed or other instrument of writing is not necessary, though, of course, a dedication may be made by deed. The intention to make a dedication may be shown by particular acts of the owner, such as throwing open his land to public travel, or platting it and selling lots with reference to the plat, or acquiescing in or positively assenting to its use by the public, or, in short, by any act positively and unequivocally indicating such intention.' Seattle v. Hill, 23 Wash. 92-97, 62 P. 446, 448; 13 Cyc. p. 473; 1 Elliott, Roads & Streets (3d Ed.) §§ 137, 175; 3 Dillon, Municipal Corporations (5th Ed.) § 1079; Barclay v. Howell's Lessee, 6 Pet. 498, 8 L.Ed. 477.

The evidence also shows a recognition of the dedication, and of the public right in the land dedicated, by the widow and heirs of T. D. Hinckley, including the appellant Lyman Hinckley. Their deeds given and received in partition recognize the strip as Galer street and refer to its south line as a boundary of the land partitioned. Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; Buschmann v. St. Louis, 121 Mo. 523, 26 S.W. 687.

We are also of the opinion that the evidence shows such a general and long-continued use by the public as to imply an acceptance of the dedication. That such an acceptance is sufficient without any formal act on the part of the city officials is sustained by both reason and authority. 'The 'town, county, or parish,' using Prof Greenleaf's terms, is represented by the town, county, or parish officers, but the officers are not the corporation. The municipal corporation consists of the inhabitants, and not the officers. The officers are, in truth, nothing more than the agents of the corporation. The inhabitants, therefore, stand to the officers as principals, and if the principals have, by their conduct, accepted the dedication, it is of no great importance that the agents have taken no action in the matter. The inhabitants of a locality having by long-continued use treated the way as a public one, they make it such without the intervention of those who derive their authority from them. Creating towns, cities, and other public corporations is 'but the investing the people of the locality with the government thereof,' and they may themselves exercise the powers of government of highways quite as effectually by continued use as by any other method.' 1 Elliott, Roads and Streets (3d Ed.) § 170, p. 193; 3 Dillon, Municipal Corporations (5th Ed.) § 1086; 13 Cyc. p. 465. 'A dedication and acceptance may be implied from a general and long-continued use by the...