Roediger v. Cullen

• Court: Washington Supreme Court
• Writing for the Court: ROBINSON, Justice.
• Citation: Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (Wash. 1946)
• Decision Date: 19 December 1946
• Docket Number: 29825.
• Parties: ROEDIGER et al. v. CULLEN et al.

175 P.2d 669

26 Wn.2d 690

ROEDIGER et al. v. CULLEN et al.

No. 29825.

Supreme Court of Washington, En Banc.

December 19, 1946

Suit by Charles R. Roediger and others against C. D. Cullen and others to establish an alleged prescriptive right to use a footpath across the property of defendants. From a decree defendants appeal.

Reversed and cause dismissed.

Appeal from Superior Court, King County; Matthew W. Hill, judge.

Houghton Cluck & Coughlin and Edward E. Henry, all of Seattle, and Teats & Teats, of Tacoma, for appellants.

Bertil E. Johnson and Ralph M. Rogers, both of Tacoma, for respondents.

ROBINSON Justice.

Counting both husbands and wives, there are no less than thirty-four parties to this appeal. Unusually large as that number is, it is insignificant when compared to the number of persons, not parties, who have a real and vital interest in its result. Indeed, it is at least technically true that every person in the world has an interest at stake.

All of the record parties are property owners in a salt water beach community on the southerly shore of Vashon island. The plaintiffs sought a decree in the trial court establishing an alleged prescriptive right to use a footpath across the properties of the defendants, the path being, for the most part, located between the defendants' houses and the beach; such a path as is commonly found in such communities, having been created, at least in most instances, as in this, by neighborly usage.

The trial court, for reasons hereinafter noted, concluded that it was legally impossible to grant the prayer of plaintiffs' complaint directly, but, after permitting certain amendments, indirectly awarded to the plaintiffs the rights they sought by granting a right of passage to all the world; that is to say, it decreed the path to be a public path. There can be no question but that a public path is of the same nature as a public highway, and, as is said in 25 Am.Jur. 339, § 2: 'It is the right of travel by all the world, * * * which constitutes a way a public highway, * * *.'

The defendants have appealed, but the plaintiffs have not cross-appealed. We take it, then, that they have accepted the decree which the trial court entered, although it destroys the privacy of their own waterfront holdings by granting to the world in general the right to wander at will along the foreshore in front of their dwellings. It may be that the plaintiffs' geographical surroundings are such, and are likely to remain such, that this is not too great a price for them to pay for the privilege which the decree indirectly confers upon them by declaring the pathway open to use by the general public. However that may be, we may take judicial notice of the fact that there are many other waterfront communities where such paths have been created by community usage which may not be so fortunate. We have particularly in mind those waterfront communities which abut upon, or are contiguous to, our state parks. A 1945 publication of the state park committee says, of one of its waterfront parks: 'Crowds of 2,000 have been counted there on a summer's day for Illahee offers the desirable in parkdom. Soon its 13 acres will scarcely accommodate the crowds for many tourists seek the fine picnicking facilities and pleasant waters of the beach while the rapidly expanding city of Bremerton finds in this park nearby recreation for her thousands of defense workers.'

According to the records of the state park committee, the state parks are seventy-five in number, and have an area of 49,644 acres. Of these parks twelve, having an area of 3,612 acres, front on salt water, and fifteen, having an area of 12,658, have fresh water beaches.

We also have in mind those numerous private beach resorts which cater to weekend and holiday crowds. Residential waterfront communities which lie adjacent to or near resorts of that character and have footpaths, such as is involved in this action, have a vital interest in the precedent which may be established if the decree appealed from is affirmed.

There is no material conflict in the evidence. It establishes that the beach community with which we are concerned had its beginning more than forty years ago. It is, for the most part, located upon an abandoned Federal military reservation. The first occupants were merely squatters who built shacks along the waterfront, and portions of the path came into being by their visiting back and forth. In 1909, the Federal government leased the tract, or at least a large part of it, to one Bachelor who subleased to other persons some of whom testified at the trial. In 1921, a Federal enactment provided for the survey and subdivision of the military tract, the subdivisions to conform, as far as practicable, to the tracts then occupied by lessees or sublessees. In this act, Bachelor's sublessees were given a preference right to purchase the premises they had occupied, as per an appraisal to be made; payments to be made in one sum or in ten annual installments. It was further provided that the secretary of the interior might sell and convey to other purchasers in case the sublessees did not exercise their preference within a period therein stated. See 42 U.S. Stat. at Large, p. 142. The titles of all parties in this action, except those of Cullen and Simcox, were initiated by these government deeds.

Nothing in the evidence shows the exact westerly terminus of the path, but it appears to be somewhere in the neighborhood of the most westerly of the seventeen tracts into which the reservation land was subdivided. At all events, the Rooths are the most westerly of the plaintiffs, and there is some testimony indicating that the path splits up into branch paths somewhere in their neighborhood. From this property it runs westerly across sixteen lots which were originally reservation lands. At its somewhat indefinite westerly beginning, the path, as indicated on the plat in evidence, is a considerable distance from the beach, at least one hundred and sixty feet or more, and runs back of the houses. After crossing four lots (all the lots, as originally laid out, except one, are ten rods in width), it runs in front of the houses and follows the beach line. The last lot but one going east is the property of the defendants, Huhns and Thompsons, and the last, of the defendants Cook. Crossing the Cooks' easterly line, the path enters the Simcox property, then the Cullen property, both of which were purchased from the Puget Mill Company, being a portion of a large tract of woodland it acquired many years ago. From that point, the path continues a little way along a county road to the ferry dock, from which ferries operate to the mainland.

During the period when Bachelor controlled the property, a launch was operated during the summertime on a rather indefinite schedule. This landed on the Pohl lot, which is the fourth from the east of the lots carved out of the military reservation. The existing ferry began operating in 1920, and there has been a little store in the neighborhood of the landing since 1921. Although there are other reasons for the prosecution of this action, the principal aim of the plaintiffs is to preserve an easy and convenient route to the ferry landing and store. We say an easy and convenient route because all of the plaintiffs in this action, and all other persons holding or owning lots in the community, have another route to and from the ferry, a public road. The respondents' brief describes this road with reasonable accuracy as follows:

'In 1931 or 1932 the county built a road across the property of all the parties to this action, which is known and designated upon the map, as the Pohl road. It runs in a general easterly and westerly direction and is back some distance from the beach. At the easeterly end where the road leaves the ferry it runs quite near the back of the homes of the appellants but as it proceeds to the west it goes farther and farther away from the beach and up over the hills. To use this county road requires the respondents to climb steep hills to reach the county road and then to travel over the long heavy grades of the road itself. It is a long, circuitous route and becomes longer and more difficult for the people residing further westward. Some of the respondents in this action, because of age and infirmities are unable to use the county road to reach the ferry landing, and have been compelled to refrain from going to the grocery store and to the ferry landing as they formerly could and did do over the passage way here involved.'

We may add that it appears from the plat in evidence that this county road passes through the properties of the defendant marital communities at less than sixty feet from the beach line. The road is not circuitous. It simply veers away from the beach as it proceeds westward. It crosses the lots of all the plaintiffs, and indeed of all the lot owners. By the time it reaches the Roediger property, which is in the neighborhood of the westerly terminus of the path, it is quite a way from the beach. Mr. Roediger testified that he could reach the ferry dock in about twelve minutes by following the path, but that it took him thirty-five minutes to go north on his lot and then go down the county road. However his case is exceptional. Mr. Roediger's lot is the fifteenth of the series, counting from the east. On the eleventh lot, the road bends sharply to the north, and consequently crosses the Roediger lot at quite a distance from the beach; in fact, so far from it that it is more than fifteen hundred feet from his house to the road. At the turning point, however, the road is still less than four hundred feet from the beach line.

The plaintiffs do not contend that the path was at any time...