Smith v. Mitchell

• Decision Date: 10 October 1899
• Parties: SMITH v. MITCHELL.
• Court: Washington Supreme Court

58 P. 667

21 Wash. 536

SMITH v. MITCHELL.

Supreme Court of Washington

October 10, 1899

Appeal from superior court, Whitman county; O. Jacobs, Judge.

Bill for injunction by Theophilus Smith against B. R. Mitchell. Decree for plaintiff, and defendant appeals. Affirmed.

J. T. Brown, for appellant.

Trimble & Pattison, for respondent.

GORDON C.J.

This action was brought by the respondent for the purpose of obtaining a perpetual injunction against appellant restraining him from obstructing a public highway situate in Whitman county. The complaint alleges that respondent, in 1874, settled upon a quarter section of land adjacent to the alleged highway as a homestead, and has ever since that time continued to reside thereon, and has perfected his title thereto; that at the time of his location the road in question was, and for a number of years prior thereto had and ever since that time has, been used by the public as a public highway leading into the town of Colfax, a portion of said highway running across land of the appellant. In brief the complaint alleged the establishment of this highway by prescription or limitation. There was a demurrer to the complaint, which was overruled, and, upon issue of fact thereafter joined, the case came to trial. At the trial the appellant (defendant here) demanded a jury. The court ruled however, that the action was in equity, and impaneled a jury as advisory merely, and thereafter made findings, and entered a decree in respondent's favor.

One of the assignments relied on for reversal is that the court erred in ruling that the action was equitable, and denying appellant's demand for a jury trial. No damages were alleged in the complaint or sought to be recovered by respondent in the action, and the ruling was correct.

Section 3092, 1 Ballinger's Ann. Codes & St., is as follows: 'The remedies against a public nuisance are: Indictment (or information), a civil action, or abatement. * * *' The following section (3093) is as follows: 'A private person may maintain a civil action for a public nuisance, if it is specially injurious to himself, but not otherwise.' Under these provisions of the statute, the court did not err in overruling the demurrer to the complaint on the ground that the respondent has no such interest as would enable him to maintain the action. Section 3093, supra, expressly authorizes an action by a private person when the nuisance complained of is specially injurious to himself; and in the complaint, in addition to what has been stated, it was alleged that the respondent was the owner of very valuable improvements, including an orchard and nursery, upon a farm owned by him adjacent to the road in question, and had taken numerous orders for the sale of nursery stock; that there was no outlet to market for the products of his farm and nursery excepting by his highway; and in other respects brought himself, as we think, squarely within this provision of the statute.

A more important question is whether a prescriptive right can attach during a period while land is held under a pre-emption or homestead claim, and prior to patent by the United States. The land of the appellant was patented to his grantor in 1880, and for many years prior thereto said grantor had been in possession of the land as a settler. The lower court found--and the finding is abundantly sustained by the evidence--that the road was first used as a public highway in 1872, and continued to be used as such, withot any obstructions, until some time in the year 1882, when a gate was placed by defendant across such highway, but that the gate for a long time thereafter was not kept locked, and that in 1897 defendant not only securely fastened the gate, but he extended a...