Rowe v. James

• Decision Date: 12 December 1912
• Citation: 71 Wash. 267,128 P. 539
• Parties: ROWE et al. v. JAMES et al.
• Court: Washington Supreme Court

128 P. 539

71 Wash. 267

ROWE et al. v. JAMES et al.

Supreme Court of Washington

December 12, 1912

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by George Francis Rowe and others against R. E. James and others. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and remanded, with directions to modify.

John W Roberts, and Geo. L. Spirk, both of Seattle, for appellants.

Reed &amp Hardman, of Seattle, for respondents.

GOSE J.

This is an action to quiet title to a strip of land 30 feet in width, extending from the south line of East Union street, in the city of Seattle, to the north line of East Madison street, and known as Old Eleventh avenue, and being one block in length. The decree awarded to the plaintiffs the westerly half of the strip of land, and awarded the remainder to the defendants. The plaintiffs have appealed, contending that they are the owners of the entire tract.

The facts which form the basis of the appellants' contention are these: In 1882 one George Werett, being the owner of a five-acre tract of land, platted it as Werett's addition to the city of Seattle. A street 30 feet in width was marked on the plat as the eastern boundary of the addition. Lot 1 in block 2 of the addition lies parallel to, and abuts upon, this street on its westerly side, the full length of the street. A wedge-shaped tract of unplatted land, terminating at the point of junction of East Union and East Madison streets, also abuts upon the street on the east side thereof. Werett owned no property east of the street. On the 17th day of March, 1911, this street was vacated upon the petition of all the parties to the action; they being the only abutting owners. The appellants then were and for several years had been, the owners of said lot 1, and the respondents then owned and still own the unplatted land. Pending the action, the appellants Jones and wife conveyed their interest in the property to the appellants Gidner and wife. The vacated street is the property in controversy.

The court found that the appellants induced the respondents to unite in the petition for the vacation of the street by representing to them that, upon its vacation, the easterly one-half thereof would attach to and become a part of the respondents' property, and that the westerly one-half would attach to and become a part of the appellants' property; that the respondents, in reliance upon such representations, signed the petition; that the petition would have been insufficient without the signatures of the respondents; that the respondents have changed their position and surrendered valuable rights as owners of property abutting on the street; and that the appellants 'ought not to be permitted to assert or claim' ownership of the easterly one-half of the tract. The court further found that the respondents had paid assessments on account of the establishment, maintenance, and improvement of the street prior to its vacation.

The respondents contend (1) that they became the owners of the portion of the street awarded to them by operation of law when the street was vacated, and (2) that the appellants, upon the facts found by the court, are estopped to deny their title.

The first contention is based upon the assumption that the old law, carried into the Code of 1881 as sections 2333, 2334, and 2335, and carried into Rem. & Bal. Code as sections 7844-7846, is still in force. It is clear, however, that these sections were repealed by Laws 1901, p. 175 et seq. (Rem. & Bal. Code, §§ 7840 to 7843, inclusive). These laws all relate to the vacation of streets and alleys. The law of 1901 respecting the vacation of streets and alleys in incorporated cities and towns, is a complete act upon the subject, and in some essential respects is inconsistent with the provisions of the old law. Seattle v. Hinckley, 67 Wash. 273, 121 P. 444.

They further contend that, under the law of 1901 (Rem. & Bal. Code, § 7842), they became the owners of the easterly one-half of the tract when the street was vacated. This view is not sound, as section 4 of the law of 1901 (Rem. & Bal. Code, § 7843) expressly provides that vested rights shall not be affected by the act. We have uniformly held that a city acquires only an easement in a street in consequence of a dedication. Gifford v. Horton, 54 Wash. 595, 103 P. 988; Schwede v. Hemrich, etc., 29 Wash. 21, 69 P. 362; In re Westlake Avenue, 66 Wash. 277, 119 P. 798; Norton v. Gross, 52 Wash. 341, 100 P. 734.

In the Gifford Case we recognized the general rule that, in the absence of a governing statute or a reservation in the grant, the owner of the land on each side of the street owns the fee to the center of the street, subject only to the easement in the public. We held, however, that the general rule may be controlled by the peculiar circumstances of the case. In that case a street was laid by the dedicators along the boundary of their land. In view of that fact, we said: 'Having conveyed the upland to the street which marked the boundary of their land, the presumption is that the grantee was invested with the fee to the entire street; and we do not think that the surrounding circumstances overcome this presumption.' When the city has surrendered its easement by a vacation of the street, it has no further interest therein. The fee in the street remained in Werett after the dedication, and passed to the appellants as an incident to their acquisition of the fee in all the abutting property that Werett had owned. None of the respondents' grantors owned any part of the street. Their title reached only to its easterly line. As abutting owners, respondents had the easements of access, light, and air; but the vacation of the street, upon their petition, extinguished these rights, and, as their predecessors in title had never owned any part of the street, they could convey no part of the fee to the respondents. We think the correct view is that, when an owner plats land bounded by a street included in his plat, and owns nothing beyond the street, and conveys all his land abutting upon the street, without reservation, the purchaser acquires the fee to the entire street. Gifford v. Horton, supra; In re Robbins, 34 Minn. 99, 24 N.W. 356, 57 Am. Rep. 40; Taylor v. Armstrong, 24 Ark. 102; 37 Cyc. 200. This rule is pointedly stated in Commissioners, etc., v. Venard, 10 Kan. 95, where it is said: 'The vacation of a road does not take any person's private property. It leaves the property of individuals just as though no road had ever been established. If a party owns the land over which the road runs, his rights and privileges are increased by the vacation of the road, instead of being diminished. If he does not own the land over which it runs, then, of course no property of his can be taken from him.'

The respondents have directed our attention to Burmeister v Howard, 1 Wash. T. 207; Norton v. Gross, supra; Thomas v. Hunt, 134 Mo. 392, 35 S.W. 581, 32 L. R. A. 857. In the Burmeister Case both parties claimed under a common grantor, who had platted the property, including the alley in controversy, and the court was considering the effect of the proceedings of the board of trustees had under the old statute (Rem. & Bal. Code, § 7846). In the Norton Case we held that, as between the vendor and the vendee, a deed to specific property carried with it by implication a quadrangular strip of land abutting upon it, which strip had formed a part of an alley to the rear of the property, but which had been vacated before the property was conveyed. In the Thomas Case the vacated avenue was the eastern boundary of an addition as platted, but the land lying east of and adjoining the avenue was owned by the proprietors of the platted addition. The court recognized the rule that, in the absence of a controlling...