Hamp v. Pend Oreille County

• Decision Date: 07 May 1918
• Docket Number: 14458.
• Court: Washington Supreme Court
• Parties: HAMP et ux. v. PEND OREILLE COUNTY.

172 P. 869

102 Wash. 184

HAMP et ux. v. PEND OREILLE COUNTY.

No. 14458.

Supreme Court of Washington

May 7, 1918

Department 1. Appeal from Superior Court, Pend Oreille County; W. H Jackson, Judge.

Action by Godfried Hamp and wife against Pend Oreille County. Judgment for defendant, and plaintiffs appeal. Affirmed.

A. C Shaw, of Spokane, for appellants.

Charles Leavy, of Newport, for respondent.

PARKER J.

The plaintiffs, Hamp and wife, seek recovery of a strip of land running through their farm and the quieting of their title thereto as against the claim of the defendant county that the strip is a public highway, acquired by the continued adverse use thereof by the public for a period of more than ten years. Trial upon the merits in the superior court for Pend Oreille county resulted in findings and judgment denying to the plaintiffs the relief prayed for, and declaring that the public had acquired by prescription a highway along the strip in question to the extent of 12 feet in width, being 6 feet on each side of a described center line following the center of the traveled portion of the highway. From this disposition of the cause the plaintiffs have appealed to this court.

The way here in question is a trail rather than a road, in a popular sense; that is, it has been used by the public for travel by means other than that by wheeled vehicles. It was commenced to be used by white men about the year 1889, and has been continuously used by the public ever since. Prior to that time it was apparently used by the aborigines in their travels north and south over the rough and mountainous country in the extreme northeast corner of the state. From 1889 to 1914 it was the only practicable way of travel from the town of Metaline, in Pend Oreille county, north to and beyond the Canadian boundary, and acquired the name of the 'Boundary Trail.' During all of those years it was the constant way of much travel by people on foot and on horseback, and of the transportation of goods by means of pack horses and by crude conveyances called 'go-devils,' consisting of two poles attached one to each side of a horse with the ends dragging behind, somewhat like a sled, on which goods would be carried. The actual traveled trail consisted of little else than the part over which people and horses walked, and was some 18 and 24 inches wide, the 'go-devil' occupying a somewhat wider space. While the county never expended any money in the improvement of this trail, it was improved in some measure from time to time by those interested in its use, and in later years this improvement consisted in cutting out trees and brush to a width of some 8 feet. This was done across appellants' land, not only with their consent, but with their assistance to some extent. The trial seems to have been used somewhat less since 1914 than prior thereto because of the construction of another road, but it is still used, and necessarily so, by a number of settlers in the neighborhood, in going to and from their homes. It is plain from the evidence that the use of the trail during all these years has been open and adverse to the rights of all owners of land across which it runs.

While this trail was not traveled over by wheeled vehicles, except possibly to a small extent in very recent years, it was, we think, nevertheless used as a highway because of its use for public travel in the way suited to the conditions there prevailing. Travel and transportation of goods by wheeled vehicles is not the only...