Corning v. Aldo, 25847.
| Decision Date | 01 April 1936 |
| Docket Number | 25847. |
| Parties | CORNING et ux. v. ALDO et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.
Suit by C. W. Corning and wife against John Aldo and others. From a decree, plaintiffs appeal.
Affirmed.
Colvin & Rhodes, of Seattle, for appellants.
W. A Beakley, of Bremerton, for respondents.
Plaintiffs brought this action to recover damages for trespass upon land claimed to be owned by them and for the destruction of a fence which they had erected thereon, and also to obtain a permanent injunction against further trespass. The defendants alleged in their answer that a strip of ground, included within the land claimed by plaintiffs, and across which the fence extended, was a public road, and thereupon sought recovery of damages from plaintiffs for wrongful issuance of a preliminary restraining order against them and special damages resulting from the original construction of the fence. Upon a trial Before the court, all claims for money damages were mutually waived by the respective parties, and the cause proceeded to hearing upon the issue of ownership and the right to the use of the strip of ground across which the fence had been constructed. The court found for defendants and entered a decree dismissing the complaint and declaring the particular strip of ground to be a public road. The plaintiffs have appealed.
The appellants and respondent John Aldo own adjoining lands appellants' land, consisting of about 10 acres, being immediately north of the land of Aldo. Both properties are contiguous, on the west, to Hood Canal, an arm of Puget Sound. Respondent Lars Halverson originally owned both tracts as a part of a homestead claim.
A gully, beginning at the shore of Hood Canal extends in a southeasterly direction through the land claimed by appellants, crosses their south line, and proceeds in the same general direction across Aldo's land, ending at or near a road running east and west along the southerly line of, and within, the Aldo tract. The length of the gully, within the limits of the land claimed by appellants, is about 450 feet. Its width and depth do not specifically appear from the record. Within the gully, from the beach to the south line of appellants' land, and probably to a point further south, is a well-defined but somewhat devious trail or path, about 4 feet in width. For more than 20 years this trail has been used by the public to gain access to the beach from the territory lying to the south and east. The trail has not been used, nor is it capable of being used in its present condition, for vehicular traffic, except that on occasions Aldo has used a horse-drawn sled over it for the purpose of hauling water from a well located on appellants' land and in which Aldo has some kind of interest. At certain points the trail, within the boundaries of the land claimed by appellants, has been dug out of the side hill and widened, in order to make it easier of passage. Particular mention is made here of the gully and trail because they form the basis of this lawsuit.
At this point we shall refer, in chronological order, to four written instruments affecting the title to appellants' land. These instruments have an important bearing upon the issues of this case.
On August 26, 1915, respondent Lars Halverson and wife, then owners of certain lands in the particular vicinity, and Andrew Aasen and wife, at that time owners of what now includes appellants' land, entered into a 'roadway right-of-way agreement,' by the terms of which each of the parties thereto granted to the other, for a stated consideration and for roadway purposes only, the use of seven strips of ground of varying lengths and widths within their respective properties. One of these strips, having a width of 20 feet, runs along the course of the gully in question. The agreement contained this very pertinent provision: 'All of said parties also grant unto the General Public the right and privilege to use the above described property from now on and forever for public roadway purposes only.'
This agreement was placed of record after the execution of the agreement next referred to herein.
Thereafter, on June 25, 1916, Aasen and wife entered into a written contract with appellants by the terms of which the Aasens agreed to sell, and the appellants agreed to buy, 10 acres according to the following description: (Italics ours.)
The gully mentioned in this contract is the one to which we have previously referred.
On June 13, 1918, Aasen and wife deeded to appellants, in fulfillment of the above contract: (Italics ours.) It is conceded that the 'draw' mentioned in the deed is the same as the gully above referred to. It will be observed also that, while the contract reserved only 'an easement of ten feet wide in the bottom of the gully, for private roadway purposes,' the deed actually excepted from the grant to appellants 'a strip of twenty feet across said Tract in a North-Westerly direction, following a draw to the beach.'
On May 16, 1935, which was just two days prior to the commencement of this action, the appellants obtained a quitclaim deed from the Aasens to the 10 acres described in the above deed, but without any reservation of exception of the 20-foot strip within the draw or gully.
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Friends of N. Spokane Cnty. Parks v. Spokane Cnty.
...that purpose.’ ” City of Spokane v. Catholic Bishop of Spokane, 33 Wash.2d 496, 503, 206 P.2d 277 (1949) (quoting Corning v. Aldo, 185 Wash. 570, 576, 55 P.2d 1093 (1936)). The burden of proof to establish a dedication is on the party asserting it. Lopeman v. Hansen, 34 Wash.2d 291, 294, 20......
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Lovelace v. Hightower.
...87 P.2d 683; City of Cincinnati v. White's Lessee, 6 Pet. 431, 8 L.Ed. 452; Irwin v. Dixion, 9 How. 10, 11, 13 L.Ed. 25; Corning v. Aldo, 185 Wash. 570, 55 P.2d 1093; McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789; City of Santa Clare v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Calhoon v. ......
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Friends of N. Spokane Cnty. Parks v. Spokane Cnty., 32056–1–III.
...for that purpose.’ ” City of Spokane v. Catholic Bishop of Spokane, 33 Wash.2d 496, 503, 206 P.2d 277 (1949) (quoting Corning v. Aldo, 185 Wash. 570, 576, 55 P.2d 1093 (1936) ). The burden of proof to establish a dedication is on the party asserting it. Lopeman v. Hansen, 34 Wash.2d 291, 29......
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Lovelace v. Hightower
...87 P.2d 683; City of Cincinnati v. White's Lessee, 6 Pet. 431, 8 L.Ed. 452; Irwin v. Dixion, 9 How. 10, 11, 13 L.Ed. 25; Corning v. Aldo, 185 Wash. 570, 55 P.2d 1093; McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789; City of Santa Clare v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Calhoon v. ......