Humphrey v. Krutz

• Decision Date: 31 December 1913
• Citation: 77 Wash. 152,137 P. 806
• Parties: HUMPHREY et al. v. KRUTZ et al.
• Court: Washington Supreme Court

137 P. 806

77 Wash. 152

HUMPHREY et al. v. KRUTZ et al.

Supreme Court of Washington

December 31, 1913

Department 1. Appeal from Superior Court, King County; Guy C. Alston Judge.

Action by J. J. Humphrey and others against Harry Krutz and others. From a judgment of dismissal, plaintiffs appeal. Reversed with directions.

Peterson & Macbride and John S. Jurey, all of Seattle, for appellants.

Jay C Allen, of Seattle, for respondents.

GOSE J.

This action is prosecuted by abutting owners, to enjoin a threatened obstruction of an alleged alley in the city of Seattle, and for general relief. The strip of land in controversy is 10 feet wide, and extends from Weller street south, a distance of 240 feet, to Lane street. Its west line is 80 feet east of the east line of Seventh avenue. The strip lies within the heavy black lines shown upon the annexed map. A strip of land 30 feet in width lies between the alleged alley and an alley regularly dedicated, which extends through the center of the block.

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The complaint alleges that the defendants Krutz claim a fee simple title to the strip of land, and that they 'propose to appropriate said 10-foot strip for their own private use and benefit, and to exclude plaintiffs wholly therefrom.' The defendants Krutz in their answer 'admit that they own and claim to own said 10-foot strip, and that they claim and do assert title thereof in fee simple, and that they propose and will exclude the plaintiffs wholly therefrom.' The defendant city in its answer alleges that it claims the land 'to be a public alley,' and prays that the action be dismissed. At the close of all the evidence a judgment was entered dismissing the action.

The appeal presents two questions: (1) Does the evidence show that the strip of land in controversy is an alley either (a) by parol dedication, or (b) by prescription; and (2) Can the appellants, as abutting owners upon the facts shown, maintain the action?

In respect to the first question the trial judge in passing upon the case said that, if he were passing upon the merits he would find that the strip in controversy is a public highway 'by virtue of the fact that it was fenced off by Turner, the original owner thereof, leaving a passageway connecting two public streets, and by reason of the fact that it was used continuously, by people having business with the owners of property abutting thereon, for more than 10 years, this ownership being open and exclusive under an apparent right.' We are in hearty accord with these views. The evidence shows that in 1888 one Turner and wife, who then owned the entire block, fenced all of the west side of the block up to the west side of the alley in controversy, in one tract, and the 30-foot strip east of it in another tract, leaving the land in controversy uninclosed. They then sold all the property abutting upon both sides of the strip in controversy by metes and bounds, retaining the legal title to the 10-foot strip. After the death of Turner, and in October, 1905, the widow conveyed the legal title to the 10-foot strip to respondent Harry Krutz by a quitclaim deed. From 1888 until the regrade of connecting streets in 1909, the strip was used continuously as a public highway, and the end adjoining Weller street is still so used. The connection at Lane street makes the use of that end of the alley at present impracticable. Whether the strip of land was used with the consent of the Turners, the legal owners, or in hostility to the title of the legal owners, the result is the same. If used with their consent and approval, there was a parol dedication to the public. If used without their consent, a prescriptive right is clearly established.

An owner of real property may dedicate it, or an easement in or over it, to a public use. The fact of dedication is a question of intention, and, there the dedication rests in parol, it is provable by parol testimony. Seattle v. Hill, 23 Wash. 92, 62 P. 446; Lueders v. Tenino, 49 Wash. 521, 95 P. 1089; Roundtree v. Hutchinson, 57 Wash. 414, 107 P. 345, 27 L. R. A. (N. S.) 875.

An offer of dedication may be accepted by a public user. 13 Cyc. 465.

If there was no intention to dedicate the land to a public use, there was an open, notorious, continuous, and adverse user by the public for a period of 20 years or more.

The trial court dismissed the action because there had been no actual and, in his opinion, no threatened obstruction of the alley. Entertaining this view, he expressed the opinion that abutting owners could not maintain the action. In this we think he was in error. The complaint alleges, as we have seen, that the respondents Krutz 'propose * * * to exclude' the appellants from using the alley. They answered that 'they propose and will exclude' the appellants from using it. This is obviously a threatened interference with the rights of the appellants. The fee of streets and alleys is in the abutting owners, except in rare instances not present in this case. Rowe v. James, 71 Wash. 267, 128 P. 539; Gifford v. Horton, 54 Wash. 595, 103 P. 988; Norton v. Gross, 52 Wash. 341, 100 P. 734.

An abutting owner has two distinct kinds of rights in a street, the public one, which he enjoys in common with all citizens, and private rights, which arise from his ownership of contiguous property. 28 Cyc. 856.

'Ordinarily an injunction will be granted when the act or thing threatened or apprehended is a nuisance per se, or will necessarily become a nuisance, or will be denied when it may or may not become a nuisance, according to circumstances, or when the injury apprehended is doubtful, contingent, or eventual, merely.' Winsor v. Hanson, 40 Wash. 423, 82 P. 710.

A remote danger will not suffice. It must be threatened and probable. 28 Cyc. 902, 903.

We have uniformly held that an abutting owner may maintain an action to enjoin an actual or threatened obstruction of the highway. Brazell v. Seattle, 55 Wash. 180, 104 P. 155; Smith v. Centralia, 55 Wash. 575, 104 P. 797; Sweeney v. Seattle, 57 Wash. 678, 107 P....