Karb v. City of Bellingham, 36181

Decision Date10 January 1963
Docket NumberNo. 36181,36181
PartiesGary KARB, a minor, by and through his Guardian ad litem, Alvin Karb, Respondent, v. The CITY OF BELLINGHAM, and York-Ellis Mill Company, a corporation, Appellants.
CourtWashington Supreme Court

Charles R. Olson, City Atty., and Joseph T. Pemberton, Bellingham, for City of Bellingham.

Hullin, Ehrlichman, Carroll & Roberts, Seattle, for York-Ellis Mill Company.

Vance & Goodin, Seattle, for respondent.

OTT, Judge.

The City of Bellingham is the owner of a level plot of ground bounded by public streets. In 1946, the city's housing authority, in conjunction with the Federal Housing Authority, constructed rental units on part of the area. In order for the tenants to have access to their units, the housing authority constructed a U-shaped driveway leading from Carolina Street, on the north side of the property, to the units (approximately 100 feet) and returning to Carolina Street. The driveway entrance and exit were near the center of the block. The driveway was never platted or dedicated as a street, accepted as such by the city or designated by name.

Several years prior to the time here in question, the housing project was abandoned and the units removed. The U-shaped hard-surfaced driveway was left upon the property, but was not thereafter maintained or used by either of the housing authorities. The City of Bellingham occasionally leased the area as a circus ground and to the York-Ellis Mill Company for the purpose of storing lumber. During the years between the abandonment of the housing project and the leasing of the premises to the mill company for the storage of lumber, an occasional automobile would be seen parked on the U-shaped area or driving around the loop.

September 20, 1959, at approximately one o'clock p. m., during the time the area was leased to the York-Ellis Mill Company, Gary Karb, aged 13, was riding his bicycle on the hard-surfaced U-shaped area, between the stacks of lumber. He struck a piece of lumber which extended from one stack to another, and was injured. This action was instituted by his guardian ad litem against the City of Bellingham and the York-Ellis Mill Company to recover damages for the minor's injuries.

The plaintiff first predicated his claim on the theory of attractive nuisance. He later abandoned this theory and prosecuted the action solely upon the ground that the U-shaped driveway was a public street, and that the city had unlawfully authorized the York-Ellis Mill Company to maintain a public nuisance thereon.

The defendants denied that, at the time of the accident, the U-shaped area was a public street, and, at the close of plaintiff's evidence and again at the close of all the evidence, moved that plaintiff's claim be dismissed. The motions were denied.

The cause was submitted to the jury to determine, inter alia, whether the U-shaped area was a public street. From a verdict in favor of the plaintiff, the defendants have appealed.

The appellants contend that the undisputed facts established that the U-shaped area was not a public street, and assign error to the court's refusal to determine the issue, as a matter of law.

The respondent admitted in his brief and in oral argument before this court that, unless the U-shaped driveway was a public street at the time of the accident, his claim must fail.

A public street is commonly created by one of four methods: (1) grant, (2) condemnation, (3) dedication, and (4) prescription or user. 10 McQuillin, Municipal Corporations (3d ed.) § 30.21, p. 557.

There is no evidence of a grant or dedication of the U- shaped area as a public street, or of an acceptance of it, as such, by the City of Bellingham. It was not created as a public street by the City of Bellingham through the exercise of tis statutory authority (RCW 35.22.280(7)) or by condemnation. There is no claim that the public obtained a prescriptive right to use the U-shaped area as a public street. The area was not shown to have been created as a public street by means of any of the commonly known methods.

Respondent contends that the U-shaped driveway was used as a thoroughfare during the existence of the housing project; that the public was thereby led to believe it was a public street; that, as a consequence, the appellants are estopped to assert that it was not a public street at the time of the accident, and that, in any event, the facts with reference thereto were for the jury to determine.

The term 'street' commonly applies to a public highway in a city or town. Murphy v. King County, 45 Wash. 587, 591, 88 P. 1115 (1907); Spokane v. Spokane County, 179 Wash. 130, 134, 36 P.2d 311 (1934). A highway is a way open to the public at large, for travel or transportation. State ex rel. Oregon-Washington R. & Nav. Co. v. Walla Walla County, 5 Wash.2d 95, 100, 104 P.2d 764 (1940); 25 Am.Jur., Highways § 2, p. 339.

In Spencer v. Arlington, 49 Wash. 121, 94 P. 904 (1908), the municipality never formally established the area in question as a public street. However, by making repairs and improvements thereon, and allowing the public to travel upon the area for a period of 12 to 15 years prior to the time of the accident, the municipality was held estopped to deny that it was, in fact, a public street. The court further held that, where the evidence of public user was conflicting, the question of whether a municipality was estopped to deny that it had created a public street by an implied dedication was properly one for the jury.

In Basil v. Pope, 165 Wash. 212, 5 P.2d 329 (1931), the evidence established that the area there in question did appear upon the city plat as 'Fourth street,' but that, at most, it was used merely as a place to accommodate an occasional itinerant circus and to park automobiles. The trial court, in that case, instructed the jury that, as a matter of law, 'Fourth street' was not a public street. In affirming the trial court's determination, we said:

'It seems clear that 'Fourth street' at the time of this accident was not a street in the eyes of the law. It was a street on paper only. It was never improved nor used as a street. Traffic never moved north and south on 'Fourth street' across Duryea street, nor entered Duryea street on 'Fourth street' from either the south or the north. In short, the evidence wholly fails to establish that 'Fourth street' was ever used by the public as a road or way for travel or transportation. This being so, it is clear that the place where the accident occurred was not within a street intersection.' (Italics ours.)

See, also, Santoro v. Brooks, 121 Ore. 424, 254 P. 1019 (1927).

In the instant case, the U-shaped area was 'not a street in the eyes of the law,' in that it was not established as such by any of the statutory methods. The U-shaped area, therefore, could be a public street only through application of the doctrine of an implied common-law dedication, which is based on estoppel in pais.

In Roundtree v. Hutchinson, 57 Wash. 414, 107 P. 345, 27 L.R.A.,N.S., 875 (1910), we said:

'* * * The distinction between a statutory dedication and a common-law dedication is that the former proceeds from a grant whilst the latter operates by way of an estoppel in...

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    ......Sweeten, 38 Wn. App. at 166 (citing Karb v. Bellingham, 61 Wn.2d 214, 219, . Page 7 . 377 P.2d 984 (1963)). .         As to the ......
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    ...as a public highway and subsequent cases have relied on that decision. Meanwhile, other decisions such as Karb v. City of Bellingham, 61 Wash.2d 214, 377 P.2d 984 (1963), and secondary sources like 6 Washington State Bar Association, Washington Real Property Deskbook § 91.9 (3d ed. 2001) (D......
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    ...has the burden of establishing that all the essential elements are present under the facts of the case. Karb v. City of Bellingham, 61 Wn.2d 214, 218-19, 377 P.2d 984 (1963). The owner's intent to dedicate will not be presumed; the party asserting it must prove the intent is unmistakable. S......
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    ...exists has the burden of establishing that all the essential elements are present under the facts of the case. Karb v. City of Bellingham, 61 Wn.2d 214, 218-19, 377 P.2d 984 The owner's intent to dedicate will not be presumed; the party asserting it must prove the intent is unmistakable. Se......
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4 books & journal articles
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    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Volume 6: Land Use Development (WSBA) Table of Cases
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