Osborne v. City of Seattle

• Decision Date: 29 March 1909
• Citation: 52 Wash. 323,100 P. 850
• Court: Washington Supreme Court
• Parties: OSBORNE et ux. v. CITY OF SEATTLE et al.

100 P. 850

52 Wash. 323

OSBORNE et ux. v. CITY OF SEATTLE et al.

Supreme Court of Washington

March 29, 1909

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Frank W. Osborne and wife against the City of Seattle and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

McClure & McClure, for appellants.

James E. Bradford and Scott Calhoun, for respondents.

MOUNT, J.

This action was brought by the plaintiffs to restrain the city of Seattle from improving as streets a strip of land 80 feet in width to the west of block 6, and also a strip of land 80 feet in width north of block 2, as shown on the accompanying plat:

(Image Omitted)

The plaintiffs claim a triangular piece of ground to the west of block 6 and north of block 2 by mesne conveyances from the patentees of the United States. The defendants claim that Government street extends north 80 feet in width, to the west side of block 6, and that Elliott street extends west, 80 feet in width, on the north side of block 2. The question in the case is whether Government street extends further north than the north line of blocks 2 and 5, and whether Elliott street extends west further than the west line of blocks 5 and 6. On the trial of the case to the court without a jury the court found: 'That there now exists, and during all the times in these findings mentioned there have existed lawful highways or public streets 80 feet in width and embracing within the limits and boundaries thereof all of the property above described, which said highways and public streets were at all the times herein mentioned, and now are for the use and travel of the city of Seattle and the public generally; that all of the property herein described, of which plaintiffs alleged they are the owners, lies wholly within and upon the limits and boundaries of Andover street (formerly Elliott street) and Sixth Avenue South (formerly Government street), as located and designated on and by said plat, and as actually dedicated and as actually laid out upon the ground, and that said plaintiffs and each of them are without any right, title, or interest whatsoever therein or thereto.' From this finding a judgment followed dismissing the action. The plaintiffs appeal.

While several errors are assigned, the case necessarily turns on the finding above copied. The facts are as follows: On April 16, 1869, Catherine Ott, who was the owner of the land, caused to be recorded in the auditor's office of King county the 'Plan of South Seattle,' which is copied above. It is admitted that this platted land lies wholly within the limits of the John J. Moss Donation claim excepting where the blocks projecting to the northwesterly cross the meander line of that claim. This meander line, which became under the state Constitution the boundary line of the claim, cut off a small fraction of lot 5, block 1, and running thence northwesterly cut off the extreme northwesterly corner of lot 7, block 2, and a small fraction of lot 7 in block 6, and also a fraction of lot 7 in block 7. The meander line is not shown on the plat. The lots, blocks, and streets along this meander line are tide lands, part of the time under water, and, when not under water, are mud flats. After the plat was filed and recorded, lots and blocks were sold by reference to it. Thereafter the names of certain streets shown upon the plat were changed by city ordinances, as follows: Government street was changed to Sixth avenue south; Sansome street to Maynard avenue; Liberty street to Seventh avenue south; and Elliott street to Andover street. When the land was surveyed for platting, the streets were run to conform to the streets already existing in plats on the north and west of the track, and the streets were staked out upon the ground 80 feet in width to the meander line. Since the filing of the plat the land in question has never been assessed for taxes or placed upon the tax rolls. The validity of the plat is admitted, and it is also admitted that whatever streets appear to have been dedicated by the plat are dedicated streets.

Appellants rely largely upon the case of Columbia & Puget Sound R Co. v. Seattle, 33 Wash. 513, 74 P. 670, for a reversal of this case. In that case the dispute arose over a strip of land 13 1/2 feet in width, lying to the west of block 1, lot 2, of Maynard's plat of Seattle. The city claimed the strip as a part of the street west of that lot. In that case lot 1 of block 2 was one of the extreme western tier of lots as shown upon the plat. That plat as platted and also the strip in front of it were wholly within the line of Maynard's claim. No street was designated upon the plat to the west of this tier of lots. Under these facts, which are all stated in the opinion, it...