Hanson v. Spokane Valley Land & Water Co.

• Decision Date: 25 March 1910
• Citation: 58 Wash. 6,107 P. 863
• Court: Washington Supreme Court
• Parties: HANSON v. SPOKANE VALLEY LAND & WATER CO.

107 P. 863

58 Wash. 6

HANSON v. SPOKANE VALLEY LAND & WATER CO.

Supreme Court of Washington

March 25, 1910

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Alex Hanson against the Spokane Valley Land & Water Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Allen &amp Allen, for appellant.

A. G Gray, John M. Gleeson, and Joseph F. Morton, for respondent.

MOUNT J.

The respondent in this case was injured by falling into a canal across a way which he was traveling after night. He recovered a judgment against the appellant, who constructed the canal. Appeal is prosecuted from that judgment.

The complaint upon which the case was tried alleged, among other things, that on the 1st day of January, 1908, and for some years prior thereto, and ever since said time, there was and is a well defined and traveled private road and way of necessity which the public generally, constantly, and daily traveled over and upon, and the same was and has been for many years last past open to travel as aforesaid, and is a well-defined road running in a northerly and southerly direction through about the middle of the east half of section 4, township 25 north, range 45 east, W. M., said road being about a mile long and connecting with the public highway on the north line of section 4; that during the early part of the year 1908 the defendant company commenced to construct a large irrigation ditch in an easterly and westerly direction across said section 4 and across said road at right angles; that in constructing said ditch the defendant company excavated on the east and west up to the line of said road, and then ceased to excavate for some period of time unknown to the plaintiff; that said road remained in said condition unobstructed by any excavation for some period of time unknown to the plaintiff, and during said time said road was traveled by the plaintiff and the public generally; that subsequently, about the 8th day of June, 1908, the defendant company carelessly and negligently extended said ditch 6 to 8 feet wide and 1 1/2 to 2 feet deep, across said road, and carelessly and negligently allowed said ditch to remain without any barrier, lights, or warning to the public and the persons traveling over said road, and on or about the 18th day of June, 1908, at about 9 o'clock in the nighttime, the plaintiff was traveling over said road on horseback, when the horse fell into said ditch and caused plaintiff to be thrown upon the horn of the saddle, permanently injuring the plaintiff.

It is argued by the appellant that the court erred in overruling his demurrer to this complaint, and also in overruling his objection to the introduction of any evidence under it. This argument is based upon the fact that the complaint alleges that the way was a 'private road and way of necessity,' and it is not alleged that the way belonged to the plaintiff, and that the only interest which the plaintiff had therein was as one of the public, and that there is no allegation that the owner of the way invited the public to use it. It is argued from these facts that the plaintiff and the public using the road were mere licensees, and that the owner of the land owed no duty to a traveler thereon except to avoid willful wrong and wanton carelessness. While the complaint alleges that the road was a private road and way of necessity, it also alleges, in that same connection, that the road was traveled over by the public generally, constantly, and daily for some years prior to January 1, 1908. The effect of these allegations is that the road was a public way over private land. The whole allegation taken together could mean nothing less. It is not claimed that the plaintiff was the owner of the way, but he certainly had the same right as any of the public to use it. While the complaint does not directly allege an invitation to the public, it appears that the public made use of the way for 'some years prior to January 1, 1908,' and that the way connected with the public highway on the north of section 4. This amounts to an implied invitation, because public user, long continued, will imply an invitation. Phillips v. Library Co., 55 N. J. Law, 307, 27 A. 478. Or it may be implied when an owner by acts or conduct leads another to believe that the land was intended to be used as he used it, and that such use is not only acquiesced in by the owners, but is in accordance with the intention or design for which the way was adapted or allowed to be used. Turess v. N.Y.S. & W. R. Co., 61 N. J. Law, 314, 40 A. 614. It follows, therefore, that the respondent was not a mere licensee. He was an invitee under the alleged facts. Such invitation would continue so long as the way remained open and the public availed itself of such use, and, while continued, the owners and others would be liable the same as though such road were regularly laid out and owned by the public.

It is the rule, as argued by the appellant, that an owner owes to a licensee no duty as to the condition of the premises, except that the owner should not knowingly permit the...