Nystrand v. O'Malley
| Decision Date | 08 November 1962 |
| Docket Number | No. 36144,36144 |
| Citation | 375 P.2d 863,60 Wn.2d 792 |
| Parties | Andrew NYSTRAND and Sara Nystrand, his wife, Respondents, v. George O'MALLEY and Pearl O'Malley, his wife, Appellants. |
| Court | Washington Supreme Court |
Frank M. Egan and George A. Meagher, Seattle, for appellants.
John L. Vogel, Seattle, for respondents.
Andrew Nystrand and his wife ans George O'Malley and his wife are neighbors, residing on adjoining lots 9 and 10 respectively, in block 20, Lake Shore View Addition to the city of Seattle. Their properties are bordered on the east by Lake Washington and on the west by a 12-foot strip of land which is dedicated as a street, but unopened for travel, unimproved and unusable as a street in the area abutting the parties' properties. To the west of and parallel to this 12-foot street is a right of way of the Northern Pacific Railroad upon which is located a well-defined roadway regularly used by the plaintiffs (respondents) and the defendants (appellants) and their neighbors to the north and south with the consent of the railroad company. Access of ingress and egress by the parties to their respective properties is across the 12-foot street to the road on the railroad right of way.
Prior to this action, the defendants, desiring to improve the grade of access from their residence to the railroad right of way road, notified the plaintiffs and requested they remove certain trees, a hedge and a stone bulkhead from that portion of the street abutting the plaintiffs' property. These objects obstructed the route of the defendants' proposed new access to the right of way road. This request was not complied with by the plaintiffs. The defendants, shortly thereafter, in February, 1960, without the consent of the plaintiffs, and by employing the use of a bulldozer, graded the proposed access route and removed two trees from the southwest corner of the plaintiffs' lot, the trees, hedge and bulkhead in the 12-foot strip abutting the plaintiffs' lot, and trees and a portion of the plaintiffs' hedge which extended onto the railroad right of way.
The plaintiffs brought this action for trespass to recover damages for injury to their property. The defendants answered denying a trespass, and by counterclaim, sought recovery for the cost of the removal of the obstructions in the street and a mandatory injunction to require the plaintiffs to remove the portion of their garage which extended several feet onto the 12-foot street.
Trial upon the issues joined was had before the court sitting without a jury. Judgment was entered for the plaintiffs, who were awarded damages in the amount of $500 for depreciation to their property and treble damages in the amount of $150 for the destruction of the trees and hedge. The defendants' counterclaim was dismissed. The defendants appeal from the judgment, and the plaintiffs cross-appeal for the failure of the court to enter treble damages for the item of depreciation to their property.
The defendants assign error to the findings of fact of the trial court. The findings are not set out verbatim as required by Rule on Appeal 43, RCW Vol. O. Therefore, these assignments of error cannot be considered by this court and the findings of fact by the trial court become verities as to this case. Zarelli v. Superior Dist. Corp., 51 Wash.2d 154, 316 P.2d 465 (1957); Hinz v. Lieser, 52 Wash.2d 205, 324 P.2d 829 (1958).
The defendants assign error to the trial court's entry of judgment in favor of the plaintiffs, on the ground that it was proper and lawful to remove obstructions in the public road which constituted special injury to them as abutting owners. It is asserted that authority for the removal of these obstructions is derived from RCW 7.48.230, commonly known as the 'self-help' statute. It provides as follows:
'Any person may abate a public nuisance which is specially injurious to him by removing, or if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.'
We need not determine whether the obstructions complained of in the instant case constituted a public nuisance. Assuming the defendants were entitled to the benefit of the 'self-help' statute, they cannot prevail. The trial court found:
This finding, which is not subject to challenge, brings the defendants within the prohibition of the 'self-help' statute against committing...
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Jongeward v. BNSF Ry. Co.
...two cases for the proposition that the timber trespass statute applies to the destruction of ornamental trees: Nystrand v. O'Malley, 60 Wash.2d 792, 375 P.2d 863 (1962); Tronsrud v. Puget Sound Traction Light & Power Co., 91 Wash. 660, 158 P. 348 (1916). However, Jongeward does not (and can......
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Deaconess Hospital v. Washington State Highway Commission
...Fourth Avenue, it ipso facto owns to the center of that street subject only to its use as a street, and cites Nystrand v. O'Malley, 60 Wash.2d 792, 375 P.2d 863 (1962); and Motoramp Garage Co. v. City of Tacoma, 136 Wash. 589, 241 P. 16, 42 A.L.R. 886 (1925). Respondent reasons that, since ......
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