Provident Trust Co. v. City of Spokane

• Decision Date: 11 April 1911
• Citation: 114 P. 1030,63 Wash. 92
• Parties: PROVIDENT TRUST CO. v. CITY OF SPOKANE.
• Court: Washington Supreme Court

114 P. 1030

63 Wash. 92

PROVIDENT TRUST CO. v. CITY OF SPOKANE.

Supreme Court of Washington

April 11, 1911

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by the Provident Trust Company against the City of Spokane. Judgment for plaintiff, and defendant appeals. Affirmed.

F. B Morrill and R. L. McWilliams, for appellant.

Danson & Williams, for respondent.

GOSE, J.

The plaintiff brought this action for the purpose of enjoining the defendant, a municipal corporation, from taking possession of and improving a designated strip of land as a street. The plaintiff alleges that it is the owner of the strip of land, and the defendant asserts that it is a part of one of the streets of the city. The court found, in substance, that in the year 1887 Francis H. Cook and wife being the owners of a tract of land, filed a plat of a part thereof, embracing the land in controversy, as Cook's first addition to Spokane Falls, now Spokane; that the deed of dedication contained the clause, 'and we do give grant, donate and dedicate as public highways, the streets as marked and described on the foregoing plat. We reserve, however, the strip of land twenty feet in width marked 'R. R.' for railway purposes, also the exclusive rights in all of said streets to lay down pipes and carry water and gas through same'; that the plat of dedication shows North street to be 50 feet in width, extending along and in front of the strip in controversy; that it shows Hill street to be 35 feet in width, paralleling North street, with an intervening strip of land 20 feet in width; that when the plat was filed a street railway was operated over the intervening strip by the Spokane & Montrose Motor Railway Company; that it continued to operate the road until some time in 1904, when the rails and ties were removed, and that it has not since been used for railroad purposes; that in the year 1894 Cook and wife executed a deed of conveyance for the strip of land in controversy to such railroad company, and at a later date it executed a deed of conveyance to plaintiff, embracing such land. As conclusions of law, the court found that the plaintiff is the owner of the land, and that it is entitled to a permanent injunction against the city. The conclusions of law were made effective by the decree. The city has appealed.

It accepts the findings of fact, but denies that the conclusions of law are proper deductions from the facts found. It rests its contention upon the clause in the deed of dedication which we have just quoted. The appellant first contends that the strip of land in controversy was dedicated as a part of the street. The appended map illustrates the point in dispute.

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The land in controversy is the strip of land 20 feet in width marked 'R. R.,' and lying between tract A and North street and east of the point of termination of Hill street.

We cannot adopt the appellant's view.

An intention to dedicate will not be presumed, but must clearly appear. Columbia, etc., R. Co. v. Seattle, 33 Wash 513, 74 P. 670. 'Being a voluntary donation, it will not be presumed without the clearest intention to this end.' Shell v. Poulson, 23 Wash. 535, 63 P. 204. It will be observed that both streets are named and definitely marked upon the plat as having a width of 50 and 35 feet, respectively. The boundaries of the intervening strip are marked with equal definiteness, and its width is shown on the plat. If the dedicators intended to dedicate it as a street, which of the two...