Northwest Cities Gas Co. v. Western Fuel Co., Inc.

• Decision Date: 27 March 1942
• Docket Number: 28439.
• Citation: 13 Wn.2d 75,123 P.2d 771
• Parties: NORTHWEST CITIES GAS CO. v. WESTERN FUEL CO., Inc., et al.
• Court: Washington Supreme Court

123 P.2d 771

13 Wn.2d 75

NORTHWEST CITIES GAS CO. v. WESTERN FUEL CO., Inc., et al.

No. 28439.

Supreme Court of Washington, En Banc.

March 27, 1942

Action by the Northwest Cities Gas Company against the Western Fuel Company, Incorporated, and another, to enjoin defendants from interfering with plaintiff's alleged prescriptive easement of a right of way across property of the named defendant. From a judgment, defendants appeal.

Remanded with direction.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

Velikanje & Velikanje, of Yakima, for appellants.

Rigg Brown & Halverson and Paul M. Goode, all of Yakima, for respondent.

STEINERT Justice.

This action was instituted by plaintiff Northwest Cities Gas Company, a corporation, to enjoin defendants Western Fuel Co., Inc., a corporation, and James B. Huff, its president from interfering with plaintiff's alleged prescriptive easement of right of way across the property of the defendant Western Fuel Co. A temporary restraining order, together with an order to show cause, was issued, and thereafter a trial was had resulting in a decree permanently enjoining defendants from interfering with plaintiff's use and enjoyment of the claimed right of way. Both defendants have appealed, but the dispute is primarily between the two corporations. Plaintiff corporation will hereinafter be referred to as respondent or as the gas company, and the defendant corporation will be denominated as appellant or as the fuel company. Defendant James B. Huff will be referred to by name.

Respondent gas company owns a tract of land in the industrial section of the city of Yakima. Upon this property it operates a gas plant which it acquired from Pacific Power & Light Co. in 1929. The power company had previously operated the gas plant on the same premises since 1906. The deed from the power company to the gas company also included a grant of a perpetual right of way, between the land conveyed and a county road to the west, over a twenty-foot strip of ground belonging at the present time to one Goodman. That right of way, however, is not the one claimed by respondent in this action.

Appellant fuel company owns the land adjoining respondent's property on the north, and at present maintains a fuel yard upon it. This tract of land formerly belonged to one Mary A. Clerf, who on May 8, 1936, conveyed it to Charles S. Huff and Jessie C. Huff, his wife. At that time, Charles S. Huff, now deceased, was the president of the fuel company; later, his son, James B. Huff, succeeded him in office. At all times herein mentioned, Mrs. Clerf appears to have been a resident of Ellensburg, which is about forty miles distant from Yakima.

On August 30, 1937, Charles S. Huff and his wife conveyed this latter tract of land to appellant. Both the deed from Mrs. Clerf to the senior Huffs and the deed from the latter to appellant specifically excepted from conveyance and warranty 'rights of way for roads, ditches, and pipe lines over and across said premises.'

South First avenue in Yakima approaches appellant's property from the north and meets the northerly boundary line thereof near its middle, but the street does not extend into or across the tract. Both tracts of land here involved, owned respectively by respondent and appellant, lie between the Northern Pacific Railway tracks on the east and the Union Pacific Railroad tracks on the west. It may be further noted that respondent's tract of land does not extend as far to the west as does appellant's tract.

Prior to 1915, the tract of land formerly owned by Mrs. Clerf and now belonging to appellant was used for the production and storage of ice, and for that purpose an artificial pond was maintained upon it, impounded by a semicircular dike or dam near the eastern boundary of the property. In 1915, the pond was abandoned and was permitted to dry up. From 1906 to 1920, persons going to the gas plant (then owned by Pacific Power & Light Co.) traveled south along South First avenue, crossed the Clerf land over a road running along the top of the dike at the east edge of the pond, and entered the power company's premises approximately at the northwest corner thereof. Egress from the premises was in the reverse course over the same route. In 1920, a bridge in the middle of the dike collapsed, and as a consequence this particular portion of the route through the Clerf land was abandoned. Shortly thereafter, however, agents of the Pacific Power & Light Co., without permission from Mrs. Clerf, laid a roadway across the dry bed of the pond and hauled in cinders to a depth of about four inches along a strip twelve to fifteen feet wide, in order to make a road passable for trucks. This road crossed Mrs. Clerf's property in a generally north and south direction and constituted, roughly, an extension of South First avenue. Another road was also early developed across the southwest corner of the Clerf land, leading from the northwest corner of the power company's premises to a crossing over the Union Pacific Railroad tracks on the west.

Seven witnesses for respondent testified to continuous use of various roads through the Clerf tract from at least as early as 1920 until the time when appellant purchased and began to fence the property as hereinafter more fully described. The testimony of these witnesses shows that they have all made frequent trips over these routes, sometimes several trips a day, and that for many years respondent has annually transported about four thousand tons of coke over the several roads traversing the Clerf tract. The same witnesses testified further that the north-south route, in its present location, had been in constant use since 1920. They also testified that they had never applied to anyone for permission to cross the Clerf land and had never been forbidden to do so.

During the time prior to the acquisition of the property in question by Charles S. Huff and his wife, the land was also used by various persons as a dumping ground for rocks and dirt which had been removed from excavations in the city of Yakima. It is undisputed that during all the time prior to 1936 this land was unfenced, uncultivated, and totally unimproved.

In 1936 or 1937, shortly after Mrs. Clerf had conveyed the land to Charles S. Huff and his wife, Mr. Huff had the property surveyed and partly leveled and fenced in order to make it usable as a fuel yard. Respondent's plant superintendent testified to a conversation with Charles S. Huff at the time the land was being surveyed, in the course of which Mr. Huff told the superintendent that the fence would close the roadway across his land to the west, but added that he was going to leave respondent a forty-foot driveway through to the north. Pursuant to that promise, a lane forty-eight feet wide and fenced on both sides was left open, running approximately through the center of appellant's property and permitting continued traffic between respondent's plant and South First avenue. This land plant and South First avenue. This lane tract, across appellant's property, toward South First avenue and approximated an extension of that street, though of somewhat diminished width.

From the time that the fence was completed, in 1936 or 1937, until the evening of August 23, 1940, a roadway through this lane was used by respondent's employees and customers. The roadway as actually used was from ten to twenty feet in width and so did not occupy all the space between the fences on the two sides of the lane. There is some dispute in the evidence as to whether or not the road through the lane was the same as the one previously referred to herein as leading in a north-south direction across the Clerf land. Respondent's witnesses testified that it was the same, whereas appellant's witnesses testified that the original road was some distance west of the lane. The trial court, after hearing the evidence and viewing the premises, found that the location of the roadway was substantially the same at all times from about 1920 to 1937; that, although the road was then shifted a little to the east, to bring it within the newly built fences, the change was made by appellant and was acquiesced in by respondent; and that respondent was not thereby deprived of its previously acquired prescriptive rights.

Sometime after the fencing was completed, appellant affixed a sign at the north entrance to the passageway reading 'Private Way, Permission to Pass Over Revocable at Any Time.' When respondent's superintendent observed this sign, he told James B. Huff that the road could not be closed, to which the latter replied that the sign meant just exactly what it said. However, respondent's employees and customers continued to use the road as Before .

In August, 1940, a fire of suspicious origin broke out in appellant's fuel yard and portions of the fences inclosing the lane were burned. Thereafter, on August 23 employees of appellant barricaded the north entrance to the passageway and for about twelve hours refused to allow traffic to pass through. This action was thereupon instituted by repondent to establish and protect its alleged prescriptive easement of right of way across appellant's land. The trial court enjoined appellants perpetually from interfering with respondent's use and enjoyment of a specifically described roadway forty-eight feet wide, thus confirming respondent's claim to an easement practically coextensive with the lane as fenced by Charles S. Huff. The action of the court was founded upon the conclusion that a prescriptive right of easement was acquired by respondent and its predecessor in title, Pacific Power & Light Co., during the period from 1920 to 1936, while Mrs. Clerf still owned the land in question, and...