Roth v. Union Depot Co.

• Decision Date: 27 January 1896
• Citation: 44 P. 253,13 Wash. 525
• Court: Washington Supreme Court
• Parties: ROTH v. UNION DEPOT CO.

44 P. 253

13 Wash. 525

ROTH v. UNION DEPOT CO.

Supreme Court of Washington

January 27, 1896

Dissenting opinion. For majority opinions, see 43 P. 641.

Per Hoyt, C.J., dissenting.

HOYT, C.J.

I feel compelled to dissent from what is said in the foregoing opinion as to the effect of the railroad company's allowing, if it did allow, persons to travel along and across its rights of way. In my opinion, railroad companies occupy the same relation to the real estate which they own as other owners of such property. The general rule that an owner of uninclosed real estate will lose no rights by reason of the fact that he allows a path to be made across it without objection on his part is too well settled to require the citation of authorities in its support. The plaintiff's own evidence in the case at bar showed that the right of way of the appellant, along and across which persons had been accustomed to pass, was open to the common, and entirely uninclosed. Hence, under the general rule above stated, the railroad company could lose no rights by reason of persons having been allowed to travel upon it, even if it was shown that the highest officers of the company had full knowledge of their custom so to do. Upon the other questions discussed, I express no opinion.