Cunningham v. Weedin

• Decision Date: 11 August 1914
• Docket Number: 11791.
• Citation: 81 Wash. 96,142 P. 453
• Parties: CUNNINGHAM et ux. v. WEEDIN et al.
• Court: Washington Supreme Court

142 P. 453

81 Wash. 96

CUNNINGHAM et ux. v. WEEDIN et al.

No. 11791.

Supreme Court of Washington

August 11, 1914

Department 1. Appeal from Superior Court, Island County; John M Ralston, Judge.

Suit by Paul Cunningham and wife against W. L. Weedin and others. Decree for complainants, and defendants appeal. Affirmed.

Jas. Zylstra, of Coupeville, for appellants.

Dan W Locke, of Everett, and Dan W. Craddock, of Coupeville, for respondents.

CHADWICK J.

Prior to the year 1893 the people residing in the vicinity of the road which has become the subject of this controversy undertook to lay out a road along the section line between sections 17 and 18, township 29, north of range 3 east, in Island county. The road is what the witnesses call a volunteer road. It was put through the timber by the labor and at the expense of those who were interested in it as a way of travel. In 1893 all of the people in that neighborhood, including defendant W. L. Weedin, petitioned the county commissioners to lay out and establish a county road along the section line. The county commissioners ordered the road established, but, the county being without funds at that time, the road was not laid out on the ground, but was traveled along the route laid out by the volunteers, it being generally understood that the road would be opened when the county was able to do so. Some of the witnesses described the road as having kinks and turns. Men who worked on the road said that they had no way to remove rocks and stumps or to cut down hills or to bridge low places, and that they went against the lines of least resistance. While there is a dispute as to the section line, to which we shall presently refer, it is certain that the road did not follow a true north and south line between the premises of the parties to this action. In 1913 the road supervisor undertook to straighten the road and put it upon the section line. In so doing he encroached upon a part of the lands inclosed by the defendants, which lands have been inclosed for many years, first by a brush fence, then by brush fence with wire, and finally by boards with wire. Defendants contending that the road had been established by user, and that the road was not being put on the true section line, and that they had title to the inclosed land by adverse possession, put obstructions in the way and blew out a culvert, whereupon this action was brought to restrain them from further interference. A decree in favor of plaintiffs was entered below, and defendants have appealed.

The first contention here is that an abutting landowner cannot maintain a suit for the removal of an obstruction in a public highway. This court, in line with what it has considered to be the better opinion, has settled the rule that such actions can be maintained by one who is in the situation of these plaintiffs. Sholin v. Skamania Boom Co., 56 Wash. 303, 105 P. 632; H. Sweeney v. City of Seattle, 57 Wash. 678, 107 P. 843; Brazell v. City of Seattle, 55 Wash. 180, 104 P. 155; Smith v. Centralia, 55 Wash. 573, 104 P. 797; Humphrey v. Krutz, 77 Wash. 152, 137 P. 806.

The real question of law involved is whether a road established of record along a defined line, but which has never been formally opened or laid out upon the ground, will bar the public from afterwards changing the line of travel to the true line. This question has been settled by this court. In the case of Clark v. Seattle, 71 Wash. 316, 128 P. 670, we held that, where the line of travel, in order to avoid hills, ravines, and like topographical obstructions in the authorized way, leaves it for the purpose of going around the obstacle, and, when passed, again enters the authorized way, this is as much an opening and public use of the untraveled portions of the road as of that part actually used. This being so, it follows that no right in the untraveled part of the road can be gained by adverse possession. A county holds an easement in its highways in trust for the public. Sumner v. Peebles, etc., 5 Wash. 471, 32 P. 221, 32 P. 1000; West Seattle v. West Seattle Land Co., 38 Wash. 359, 80 P. 549; Rapp v. Stratton, 41 Wash. 263, 83 P. 182. An easement once asserted by the public will not be lost unless in virtue of some statute, or nonuser for a time and under such circumstances as will create an estoppel. 37 Cyc. 195.

As illustrative of our argument it is only necessary to call attention to the fact that in recognition of this principle we have a statute vacating roads that have not been opened or traveled for a certain number of years. Rem. & Bal. Code, § 5673. This statute does not recognize any right of adverse possession in the former or present owner of the abutting property, but is based upon the common law of presumption of abandonment. No such presumption attends this case. The road has been used by the people since it was first laid out. It like hundreds of other roads in unsettled portions of the state, has wound its way around natural obstacles, and no doubt at times its path has led entirely outside of the right of way. It has been so in every new or sparsely settled country. As population grows and...