Scheller v. Pierce County

• Decision Date: 19 October 1909
• Court: Washington Supreme Court
• Parties: SCHELLER et al. v. PIERCE COUNTY.

104 P. 277

55 Wash. 298

SCHELLER et al. v. PIERCE COUNTY.

Supreme Court of Washington

October 19, 1909

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Anna Scheller and another against Pierce County. From a judgment of dismissal, plaintiffs appeal. Reversed, with directions.

H. W Lueders and Harry E. Phelps, for appellants.

J. L McMurray and F. D. Oakley, for respondent.

RUDKIN C.J.

During the year 1890 the board of county commissioners of Pierce county laid out a public road along the section line between sections 21 and 22, in township 20 N., range 2 E., W. M. Albert Whyte and wife then owned 145 acres in section 22 abutting on the proposed road. At that time the board did not deem it advisable to construct the new road the entire distance along the section line, because of the expense of bridging a slough adjacent to the Whyte lands. The board therefore, procured from Whyte and wife a temporary dedication or grant of a right of way across the above-described lands, which appears in the abstract of title in evidence in the following words: 'Do grant, convey and dedicate to the county of Pierce, Washington, for the use of the public as a county road the following lots, pieces or parcels of land, situate, lying and being in the county of Pierce and state of Washington and particularly bounded and described as follows, to wit: Thirty feet on each side of a line described as follows: Beginning at a point 26.21 chains east of the southwest corner of section 22, township 20, north of range 2 east, run N. 37~ 30' W., 7.23 chains, thence N. 16~ W. 4.15 chains, thence east 4 chains, thence S. 53~30' east 16.30 chains. To have and to hold the said premises unto the said Pierce county and its successors for the use of the public for a term not exceeding five years from the date hereof, at which time said tract shall revert to these grantors.' The road was thereupon constructed over the right of way described in the foregoing grant, and has been used from that time up to the present. There is testimony tending to show the following facts: The county expended public money in constructing and repairing a bridge across the slough on the Whyte land from time to time, but the greater part of the expenditures were made either during the 5-year period covered by the written contract, or over the plaintiffs' protest immediately preceding the commencement of this action. The road has been used for about 18 years in all by all persons desiring to travel the same. The county at different times refused to expend public money on that portion of the road in controversy, either because it had no right of way for the road, or because the right of way was in dispute. The plaintiffs and their predecessors in interest have at all times paid taxes on the right of way over their lands, and at different times maintained gates across the right of way to exclude stock. The present action was instituted by the successors in interest of the Whytes to restrain the county and its officers from tearing down or interfering with fences constructed across the right of way on the Whyte land. The county defended on the sole ground that the locus in quo was a public highway, and this is the sole question involved in the case. The court below found that there was a public highway by prescription, as claimed by the county, and dismissed the action. From this judgment the property owners have appealed.

A highway may exist by prescription in this state. Smith v Mitchell, 21 Wash. 536, 58 P. 667, 75 Am. St. Rep. 858; Yakima County v. Conrad, 26 Wash. 155, 66 P. 411; Seattle v. Smithers, 37 Wash. 119, 79 P. 615. At the same time all the essential elements of adverse possession must be present. The possession or use must be open, notorious...