Rodruck v. Sand Point Maintenance Commission, Nos. 33263

CourtUnited States State Supreme Court of Washington
Writing for the CourtSCHWELLENBACH; HAMLEY
Citation48 Wn.2d 565,295 P.2d 714
PartiesRobert C. RODRUCK and Flossie W. Rodruck, his wife, Appellants, v. SAND POINT MAINTENANCE COMMISSION, a Washington Corporation, Respondent. Jean Tippery and Shari Charlotte Tippery, and the Community Composed of Jean Tippery and Shari Charlotte Tippery, Appellants. John W. BURKE and Elvena Burke, his wife, Appellants, v. SAND POINT MAINTENANCE COMMISSION, a Washington Corporation; and the City of Seattle, a municipal corporation, Respondents.
Docket Number33264,Nos. 33263
Decision Date29 March 1956

Page 565

48 Wn.2d 565
295 P.2d 714
Robert C. RODRUCK and Flossie W. Rodruck, his wife, Appellants,
v.
SAND POINT MAINTENANCE COMMISSION, a Washington Corporation,
Respondent.
Jean Tippery and Shari Charlotte Tippery, and the Community
Composed of Jean Tippery and Shari Charlotte
Tippery, Appellants.
John W. BURKE and Elvena Burke, his wife, Appellants,
v.
SAND POINT MAINTENANCE COMMISSION, a Washington Corporation;
and the City of Seattle, a municipal corporation,
Respondents.
Nos. 33263, 33264.
Supreme Court of Washington, Department 1.
March 29, 1956.
Rehearing Denied June 4, 1956.

Page 567

[295 P.2d 716] Mary E. Burrus, Barbara E. Reardon, Houghton, Cluck, Coughlin & Henry, Seattle, for appellants.

Howe, Davis, Riese & Aiken, Daniel B. Allison, A. C. Van Soelen, Glen E. Wilson, Seattle, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from judgments entered in two cases consolidated for trial. Plaintiffs and interveners are owners of tracts in the plat of the residential district known as the Sand Point Country Club located in Seattle. The district contains two hundred thirteen residential lots and is elliptical in shape. One street, located on property within the district, encircles the area, and several streets crisscross within the district to serve the property owners. There is no means of ingress or egress at the northern boundary. One may enter the residential area at three points at the southern boundary from East 75th Street (a city thoroughfare running east and west south of the district).

In March of 1928, Samuel Hayes incorporated the Sand Point Country Club and conveyed all of the property in the residential district in question to it. December 28, 1928, he incorporated the Sand Point Maintenance Commission under the statute on charitable, social and benevolent corporations. December 31, 1928, the Sand Point Country Club conveyed to the Maintenance Commission in trust strips of land which had been laid out in the subdivision for future use as streets, parking places and bridle paths, called 'easements of access', and also certain easements for water, sewage and telephone utilities. The trust deed recited that the easements of access 'are hereby conveyed in trust for the purpose of

Page 568

improvement and maintenance for the private use and enjoyment, as ways of ingress and egress, parking place, and bridle path, of the following persons, towit: * * * The deed then listed certain classes of persons entitled to such use: members of the Sand Point Golf Club, the Sand Point Country Club and the Sand Point Riding Club, owners of land in the vicinity 'when brought under the provisions of the bylaws of the grantee' and owners of properties later acquired by the grantors.

In January of 1929 a Certificate of survey and a Declaration of Restrictive Covenants were filed. In June of 1939 the bylaws of the commission were amended, as were the articles of incorporation, and an amended declaration of restrictive covenants was filed. At that time the Sand Point Country Club was renamed the Hayes Investment Company. In 1942, different owners sold and conveyed Lot 22 to Plaintiff Burke, Lot 198 to Plaintiff Rodruck and Lot 202 to Intervener Tippery. Each of the appellants, by virtue of his purchase, became a member of the maintenance commission, and such membership was still intact at the time of the institution of the actions now before us on appeal.

In May of 1951, the maintenance commission reorganized and amended its bylaws, and an amended certificate of incorporation was filed designating the commission as a nonprofit corporation. In January of 1953, the district was annexed to the City of Seattle.

The basic plan of operation of the commission is this. Each lot owner has one membership in the commission which is appurtenant to the land owned. A board of trustees elected by the members maintains and improves, among other things, the streets in the district, and levies assessments against the members for the cost of these improvements and maintenance work. Unpaid assessments become a lien on the property and are foreclosable against the individual lots as in the case of mortgages.

Subsequent to the annexation, the City of Seattle levied against the property of the commission (streets, etc.) for the area's [295 P.2d 717] share of the cost of improving East 75th Street,

Page 569

and the commission in turn levied against the property of the members.

Plaintiff Rodruck in his complaint sought (1) an order declaring the corporate reorganization of 1951 void; and (2) an order declaring the corporation to have no power to levy assessments for the improvement of East 75th Street. Tippery, as intervener in the Rodruck suit, sought (1) to have his title quieted as against the filed covenants and restrictions; (2) an adjudication that the streets in the district are public; and (3) an order declaring the amended articles of incorporation of 1951 to be of no effect. Plaintiff Burke sought (1) an order declaring his right to withdraw from membership in the commission; (2) an adjudication declaring that the streets in the area are public; (3) an adjudication that the purported covenants in the Declaration of Protective Restrictions, as amended, are void; and (4) an injunction enjoining the City of Seattle from taking further steps with regard to the levy of assessments against the area other than in accordance with the laws provided therefor.

Defendant commission cross-complained against plaintiff Rodruck and intervener Tippery, seeking judgment for unpaid assessments.

In the course of the trial the court granted a motion for dismissal on the issue of the character of the streets and in its findings recited that the streets within the district are now and at all times have been private streets. The court entered judgment dismissing the complaints of plaintiffs and intervener and ordered recovery by defendant commission on its cross-complaint in the amounts prayed for.

It is contended that the trial court erred in finding that the streets within the area are private streets; in finding that no evidence was produced which permits the court to relieve appellants or their tracts from the obligations of membership in the maintenance commission; in entering decrees dismissing appellants' actions and in granting judgments against them with interest and costs, including attorneys' fees; in finding that the maintenance commission is duly organized under the laws of the state; in finding that

Page 570

appellants Rodruck are barred by res judicata from questioning the rights of the commission to levy assessments and foreclose against them and their property; in finding that certain causes of action are barred by the statute of limitations; and in refusing to find that the commission has no power to levy assessments for the improvement of East 75th Street.

In Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123 P.2d 771, 775, we set out the following rules concerning public user:

'An easement of right of way across the land of another, including even the establishment of a public highway over private property, may be acquired by prescription.'

'The period required in this state to establish such a prescriptive right of way is ten years, * * *.'

'Prescriptive rights, however, are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other persons.'

'When one enters into the possession of another's property there is a presumption that he does so with the true owner's permission and in subordination to the latter's title.'

'A user which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate.'

'It is therefore essential that all of the elements necessary to constitute a permanent valid claim by adverse user amounting to a prescriptive right to be shown to be present.'

'The burden of proving a prescriptive right rests upon the one who is to be benefited by the establishment of such right.'

[295 P.2d 718] 'To establish a prescriptive right of way over the land of another person, the claimant of such right must prove that his use of the other's land has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought to be subjected, and with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.'

'However, proof that the use by one of another's land has been open, notorious, continuous, uninterrupted, and for the required time creates a presumption that the use was

Page 571

adverse, unless otherwise explained, and, in that situation, in order to prevent another's acquisition of an easement by prescription, the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive.'

There was testimony that no signs or barriers were placed on the streets; that the only time the streets were closed was during a snow storm; that members of the public have used the streets without interruption; that business firms would go into the tract to service homes; that there have been no restrictions as to persons or vehicles; that there was no difference as to the kind and nature of the traffic as compared to other areas of the city. However, much of the use by other than residents was by (1) sight-seers, (2) student drivers, (3) visitors of residents, (4) merchants, (5) salesmen, and (6) delivery people. The testimony concerning the use was general, rather than specific. Appellants did not prove that the use of the streets by the public was 'open, notorious, continuous, uninterrupted, and for the required time.' No presumption arose, therefore, that the use was adverse. Furthermore, the area is elliptical in shape. One cannot...

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48 practice notes
  • Deep Water Brewing v. Fairway Resources Ltd., No. 27014-9-III.
    • United States
    • Court of Appeals of Washington
    • September 10, 2009
    ...concerns the land if it is connected with the use and enjoyment of the land. Rodruck v. Sand Point Maint. Comm'n, 48 Wash.2d 565, 574-76, 295 P.2d 714 (1956) (promise to pay assessment for maintenance was a running covenant). The covenant must be so related to the land as to enhance its val......
  • Riverview Cmty. Grp. v. Spencer & Livingston, No. 30681–0–III.
    • United States
    • Court of Appeals of Washington
    • February 14, 2013
    ...Mains Farm Homeowners Ass'n v. Worthington, 121 Wash.2d 810, 854 P.2d 1072 (1993); Rodruck v. Sand Point Maint. Comm'n, 48 Wash.2d 565, 295 P.2d 714 (1956); Lake Limerick, 120 Wash.App. 246, 84 P.3d 295;Mountain Park Homeowners Ass'n v. Tydings, 72 Wash.App. 139, 864 P.2d 392 (1993), aff'd,......
  • Petersen v. Beekmere, Inc.
    • United States
    • Superior Court of New Jersey
    • November 19, 1971
    ...Owners Ass'n v. Jaybro R. & D. Co., 156 Misc. 604, 281 N.Y.S. 541 (Sup.Ct.1935); Rodruck v. Sand Point Maintenance Comm'n, 48 Wash.2d 565, 295 P.2d 714 (Sup.Ct.1956) (where the amounts of the individual assessments were governed by a set standard, 'according as the area of such tract bears ......
  • Dye v. Diamante, No. CV–16–127
    • United States
    • Supreme Court of Arkansas
    • February 16, 2017
    ...Ct. Ch. Div. 1969) (By-laws were validly incorporated into a lease by reference.); Rodruck v. Sand Point Maint. Comm'n , 48 Wash.2d 565, 295 P.2d 714, 719 (1956) (Deeds validly contained a covenant which was incorporated into a corporation's by-laws.).Here both the by-laws and rules and reg......
  • Request a trial to view additional results
48 cases
  • Deep Water Brewing v. Fairway Resources Ltd., No. 27014-9-III.
    • United States
    • Court of Appeals of Washington
    • September 10, 2009
    ...concerns the land if it is connected with the use and enjoyment of the land. Rodruck v. Sand Point Maint. Comm'n, 48 Wash.2d 565, 574-76, 295 P.2d 714 (1956) (promise to pay assessment for maintenance was a running covenant). The covenant must be so related to the land as to enhance its val......
  • Riverview Cmty. Grp. v. Spencer & Livingston, No. 30681–0–III.
    • United States
    • Court of Appeals of Washington
    • February 14, 2013
    ...Mains Farm Homeowners Ass'n v. Worthington, 121 Wash.2d 810, 854 P.2d 1072 (1993); Rodruck v. Sand Point Maint. Comm'n, 48 Wash.2d 565, 295 P.2d 714 (1956); Lake Limerick, 120 Wash.App. 246, 84 P.3d 295;Mountain Park Homeowners Ass'n v. Tydings, 72 Wash.App. 139, 864 P.2d 392 (1993), aff'd,......
  • Petersen v. Beekmere, Inc.
    • United States
    • Superior Court of New Jersey
    • November 19, 1971
    ...Owners Ass'n v. Jaybro R. & D. Co., 156 Misc. 604, 281 N.Y.S. 541 (Sup.Ct.1935); Rodruck v. Sand Point Maintenance Comm'n, 48 Wash.2d 565, 295 P.2d 714 (Sup.Ct.1956) (where the amounts of the individual assessments were governed by a set standard, 'according as the area of such tract bears ......
  • Dye v. Diamante, No. CV–16–127
    • United States
    • Supreme Court of Arkansas
    • February 16, 2017
    ...Ct. Ch. Div. 1969) (By-laws were validly incorporated into a lease by reference.); Rodruck v. Sand Point Maint. Comm'n , 48 Wash.2d 565, 295 P.2d 714, 719 (1956) (Deeds validly contained a covenant which was incorporated into a corporation's by-laws.).Here both the by-laws and rules and reg......
  • Request a trial to view additional results

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