Fitts v. Pierce County

• Decision Date: 20 February 1914
• Citation: 78 Wash. 238,138 P. 885
• Court: Washington Supreme Court
• Parties: FITTS et al. v. PIERCE COUNTY et al.

138 P. 885

78 Wash. 238

FITTS et al. v. PIERCE COUNTY et al.

Supreme Court of Washington

February 20, 1914

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Ruth H. Fitts and husband against Pierce County and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Lorenzo Dow, W. W. Keyes, and H. G. Fitch, all of Tacoma, for appellants.

Gordon & Remann and A. O. Burmeister, all of Tacoma, for respondents.

MORRIS J.

The question presented by this appeal is whether or not there is a public road through blocks 59 and 62 of the plat of Brookdale in Pierce county. These premises are a short distance south of Tacoma, and were owned by respondents. The lower court held adversely to the county's contention, and it appeals.

The county relies on two grounds as establishing the public character of the road: (1) Prescription; and (2) section 5657, Rem. & Bal. Code, providing that all public roads that have been used as such for not less than seven years, where the same have been worked and kept up at public expense, are declared to be lawful roads. The material facts are these: In 1868 there was a road leading south from Tacoma known as the Old Muck road, which until 1891 was the main traveled road into the section of the county surrounding the premises in question. In 1891 a plat of Brookdale was filed, including the lands now owned by respondents. This plat showed the usual streets and alleys, and provided for two streets across blocks 59 and 62, the one on the north known as Elm street and the one on the south as Beach street. In this same year the county commissioners, after proper notice, made and entered a formal order vacating all roads within the boundaries of the Brookdale plat, including the road in question. In 1893 Pacific avenue was laid out as a public road, and has since become the main traveled road to the section formerly served by the Old Muck road. To the south of respondents' premises is an old cemetery, which was first opened as such in 1894, as a burial ground for the members of a Lutheran congregation. After the vacation of the road in 1891, the members of this congregation continued to use the Muck road to reach the cemetery, until about 1909, when, upon the petition of a number of residents in that vicinity Brookdale avenue was opened up, providing access to the cemetery, upon the ground, as stated in the petition, that no public road existed whereby this cemetery could be reached. Since that time the evidence discloses that, outside of the use made of this Old Muck road in reaching the cemetery there has been no general public use of the road. The lower court has found, and the finding is sustained by the record, that this use of the road to reach the cemetery was by permission of the owners of these two blocks. It also appears that to the north and south of these...