Okanogan County v. Cheetham

• Decision Date: 29 March 1905
• Citation: 37 Wash. 682,80 P. 262
• Court: Washington Supreme Court
• Parties: OKANOGAN COUNTY et al. v. CHEETHAM.

80 P. 262

37 Wash. 682

OKANOGAN COUNTY et al. v. CHEETHAM.

Supreme Court of Washington

March 29, 1905

Appeal from Superior Court, Okanogan County; C. Victor Martin Judge.

Action by the county of Okanogan and others against Edith M Cheetham. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

E. K Pendergast, for appellants.

Alvin W. Barry, for respondent.

ROOT, J.

This action was brought by the county of Okanogan and its board of commissioners against respondent to have a certain 'strip of land sixty feet in width * * * adjudged and decreed to be vested in the general public and in plaintiffs for the use and benefit of the general public, as a public highway and wagon road,' and to enjoin respondent from in any manner interfering with or obstructing said highway, and to abate certain fences erected by respondent across said right of way, and to perpetually enjoin her from setting up or claiming any right, title, or interest in and to any of said strip of land as against the general public in its use of the same as a public highway and wagon road. To appellants' complaint a general demurrer was interposed and by the trial court sustained. Appellants electing to stand upon their complaint, the action was dismissed. From the judgment of dismissal appeal is taken to this court.

Respondent on or about the 19th day of December, 1901, made original homestead entry upon the lands across which the wagon road in controversy runs. For seven years or more prior to said date the roadway herein involved had been continuously used as a public highway by people living in that part of the country but no public funds had ever been expended thereupon, the road having been laid out and improved and kept up by voluntary work and expense. On the 11th day of August, 1903, the board of county commissioners of Okanogan county adopted and entered a resolution to the effect 'that the right of way for the construction of highways over public lands, as granted by act of Congress (section 2477, Rev. St. [U. S. Comp. St. 1901, p. 1567]) be, and the same is hereby, accepted as far as said grant relates to said Okanogan county, state of Washington; that is to say, to the extent of thirty feet on each side of the center line of all wagon roads which now exist or which have heretofore existed upon or across or over lands that are now public lands of the United States, not reserved for public uses, in said Okanogan county.' This resolution was adopted in view of the act of the Legislature of this state approved March 14, 1903 (Laws 1903, p. 155, c. 103), wherein and whereby boards of county commissioners are authorized to accept highways as granted by section 2477 of the Revised Statutes of the United States. This resolution of the board of commissioners seems to have been adopted without notice to this respondent. Appellants contend that section 2477 of the Revised Statutes constitutes a grant in praesenti, and that it becomes effective as to any particular strip of land as soon as the same is used for highway purposes, and without any formal action on the part of the state, county, or other authorities. Respondent contends that, as her homestead entry was made before this strip had been used as a highway for the period of 10 years, and before the county commissioners had adopted the resolution referred to, she had rights paramount to those seeking to use said strip as a highway, and that the action of the public in using said roadway and the action of the county commissioners in adopting said resolution were insufficient to deprive her of the right of control over said strip of land. Relying upon this contention, she had caused a fence to be erected across said roadway, thereby preventing the use of the same for travel. Section 2477 of the Revised Statutes, above referred to, is as follows: 'The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.' The exact questions presented by this record have not heretofore been adjudicated in this court. But questions quite similar claimed the court's attention in the case of Smith v. Mitchell, 21 Wash. 536, 58 P. 667, 75 Am. St. Rep. 858, the main distinction between that case and this being that in said case the road in question had been in use for a period of 10 years prior to the homestead entry, while here it was only seven. Referring to section 2477, and the question of the establishment of highways by prescription and user, this court, speaking by Chief Justice Gordon, said: 'In this state the establishment of highways by prescription is recognized, and roads may be established by use as well as by proceedings under the statute. It is a well known fact that many of the public highways in this state had their inception in adverse user, which ripened into prescription. The act of Congress already referred to does not make any distinction as to the methods recognized by law for the establishment of a highway. It is an unequivocal grant of right of way for highways over public lands, without any limitation as to the method for their establishment, and hence a highway may be established across or upon such public lands in any of the ways recognized by the law of the state in which such lands are located; and in this state, as already observed, such highways may be established by prescription, dedication, user, or proceedings under the statute. Any other conclusion would occasion serious public inconvenience.' It will be noticed that the right to establish a highway by 'user' is here expressly avowed. The United States Supreme Court, in construing many of the grants of land made to railway companies, has invariably held that the same were grants in praesenti, and that they attached to the land as soon as definite location was established. In the case of Railroad v. Baldwin, 103 U.S. 426, 26 L.Ed. 578, that court, speaking by Mr. Justice Field, said: 'The language of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in praesenti. The act is a present grant, except so far as its immediate operation is affected by the limitations mentioned. 'There is hereby granted' are the words used, and they import an immediate transfer of interest, so that when the route is definitely fixed the title attaches from the date of the act. * * * This is the construction given by this court to similar language in other acts of Congress. Missouri, Kansas & Texas Ry. Co. v. Kansas Pacific Ry. Co., 97 U.S. 491, 24 L.Ed. 1095; Leavenworth, Lawrence & Galveston Ry. Co. v. United States, 92 U.S. 733, 23 L.Ed. 634. * * * Nor is there anything in the policy of the government with respect to the public lands which would call for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby.' The...