Okanogan County v. Johnson, 22081.

• Decision Date: 28 April 1930
• Docket Number: 22081.
• Court: Washington Supreme Court
• Parties: OKANOGAN COUNTY v. JOHNSON.

287 P. 15

156 Wash. 515

OKANOGAN COUNTY v. JOHNSON.

No. 22081.

Supreme Court of Washington

April 28, 1930

Department 1.

Appeal from Superior Court, Okanogan County; C. H. Neal, Judge.

Action by Okanogan County against William Johnson. Judgment for plaintiff, and defendant appeals.

Affirmed.

Roy Redfield, of Spokane, and L. R. Gillette, of Okanogan, for appellant.

H. A Davis, of Okanogan, and W. H. Patterson, of Omak, for respondent.

TOLMAN, J.

This is an action brought by the respondent to abate, as a public nuisance, obstructions placed in what is alleged to be a public highway by the defendant, and to require the removal of such obstructions. The trial court seems to have been of the opinion that the action was equitable in its nature, but impaneled a jury in an advisory capacity, and the judgment is based not only upon the verdict of the jury, but upon findings of fact made by the court. No question is raised as to this procedure, and we do not find it necessary to determine whether the verdict was binding on the trial court or advisory only.

From a judgment establishing the road as a public highway, adjudging that the defendant wrongfully obstructed the same and requiring him to remove such obstructions within a period of ten days, and enjoining any further obstructing or interference with the use of the road by the public, the defendant has appealed.

The main controversy in this case is as to the character of the road, appellant maintaining that it has at all times been a private road, which he has improved at his own expense, and that, so far as the public has made use of the road, that use has been permissive only.

The facts are, of course, very much in dispute, but both the verdict and the findings are to the effect that the road here in question has been an open public highway since the year 1891.

Treating this as an equitable proceeding, triable here de novo, we have examined all of the evidence with patient care, and weighed it as best we can, and are forced to the conclusion that it preponderates in favor of the findings. That being so, and it appearing that a prescriptive right in the public had accrued while the land affected was all a part of the public domain, and that the county, by a proper and sufficient resolution adopted by its board of county commissioners in 1903 (being the resolution set out in Stofferan v. Okanogan County, 76 Wash. 265, 136 P 484),...