State ex rel. Shorett v. Blue Ridge Club, Inc., 29449.
| Decision Date | 27 February 1945 |
| Docket Number | 29449. |
| Citation | 156 P.2d 667,22 Wn.2d 487 |
| Parties | STATE ex rel. SHORETT et al. v. BLUE RIDGE CLUB, Inc. |
| Court | Washington Supreme Court |
Department 1.
Action by the State, on the relation of Lloyd W. Shorett and King County, against the Blue Ridge Club, Incorporated, to obtain a decree that the public had acquired by prescription a public way or right to cross a tract owned by defendant and for purpose of appropriating to King county for use of the public a portion of a second tract for bathing purposes. From an adverse judgment, defendant appeals.
Judgment reversed, and cause remanded with directions.
Appeal from Superior Court, King County; Clay Allen, Judge.
Holman Sprague & Allen, Lucien F. Marion, Charles H. Todd, and Stanley B. Long, all of Seattle, for appellant.
Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, amicus curiae.
Lloyd Shorett and Edward E. Henry both of Seattle, for respondents.
This action, in which there is no factual question, was brought for the purpose of obtaining a decree that the public had acquired by prescription a public way or a right to cross tract E in King county owned by defendant; and, also, for the purpose of appropriating to King county for the use of the public a portion of a second, or beach, tract for bathing purposes, which right plaintiffs alleged the public had also acquired by prescription. Trial of the cause to the court resulted in the entry of a decree establishing a public way across one tract and appropriating to King county 300 feet of waterfront beach property from the other tract. Defendant appealed.
The two parcels of land involved in this suit are part of a tract of 170 acres, which was owned by Puget Mill Company from 1870 to December 1927 when it was purchased by W. E. Boeing who, May 26, 1941, conveyed same to defendant corporation which erected a fence around tract E in July 1941.
The property in controversy borders on Puget Sound and lies about one mile north of the city limits of Seattle. The Great Northern Railway Company railroad runs in a northeasterly and southwesterly course near the westerly border of this area paralleling the shore of Puget Sound. The Great Northern Railway Company's right of way is 100 feet in width and on it is a double track railroad on the westerly portion which runs for miles in both directions in close proximity to the water. The railroad in the immediate vicinity of appellant's property is so near to the waters of Puget Sound that it is supported on the westerly side by a riprap bulkhead built of large stone blocks to a height of approximately eight or ten feet. Extending westerly from the base of the bulkhead is a sandy beach which at periods of extreme high tide or stormy weather is covered by water and upon which is found drift wood, logs, etc., common to such beaches. The strip of sandy beach is about 70 feet in width from the bulkhead to the meander line of Puget Sound and is owned by appellant. It is the strip described in he complaint as lying northwesterly of the Great Northern Railway Company's right of way and to which we refer for convenience as the beach tract. This tract extends from the southerly section line of Section 35, Township 26 North Range 3 East, W.M. northerly for a distance of about 4,000 feet.
The area upland from the railroad was platted as Blue Ridge addition by Mr. Boeing February 24, 1930. Tract E of Blue Ridge Addition was included in the plat but the beach tract was not included in the plat. Tract E is in the southwesterly corner of the addition and is separated from the beach tract by the railroad right of way. Tract E is irregular in shape being 510 feet long on the northwesterly side where it abuts the railroad, 142 feet on the northeasterly side, 229 feet on the southeasterly side where it abuts the road and 328 feet on the southerly side.
For clarity let us describe the property involved in this action as follows: Tract E lies between Blue Ridge Drive and the Great Northern Railway Company's right of way at a junction point where W. 100th street enters Blue Ridge Drive from the east and 28th Avenue N.W. (also known as Triton Drive) runs into it from a southerly direction. On the other side of the Great Northern right of way is North Beach. A strip of this beach between the Ballard tide land and the railroad right of way is the second parcel of land to which we refer as the beach tract.
Prior to the year 1900 the whole Blue Ridge area, including tract E, was cut-over timber land and had growing upon it second growth timber, vines and underbrush to such an extent that same was practically impassable except for a few trails. The second growth of timber was cut in the year 1912, or a year later, since which time the growth of maples, alders, evergreens, vines and underbrush has uninterruptedly continued except for development work in laying out Blue Ridge Addition.
During the summer months the public made extensive use of the property for recreational purposes. No public agency ever assumed authority over the beach or the trails leading to it across tract E. There is some evidence respecting maintenance by the county to the effect that 'lazy husbands' had been required to work on roads leading to Tract E, but those roads have been entirely obliterated and the trails involved on tract E are no part of such roads.
The surrounding land is hilly and slopes from all directions down to the area known as tract E. Two small streams run across tract E, one near the northerly end which is fed by springs and which is convered by heavy growth of vines and underbrush; the other, a larger stream, is south of the center of tract E and runs along the bottom of a small ravine. This stream was directed into a four foot culvert and carried under the railroad tracks out onto the beach tract and into Puget Sound. Tract E, like the remainder of Blue Ridge, had scattered trees and undergrowth on it.
Blue Ridge Addition was platted in 1930 by Mr. Boeing who laid out roads and generally cleared the area of stumps. The ground for construction of the first house in Blue Ridge Addition was broken in December 1929. Five other houses were builded between 1929 and 1936; that is, there were only six houses in Blue Ridge Addition in 1936. The location of these first houses was one-half mile north and uphill from tract E. In 1936 there was a resumption of building in this area and at the time of the trial of this action in 1944 there were one hundred houses in Blue Ridge Addition. It appears that until 1936 only the first two houses built were occupied; the other four remained vacant and the remainder of Blue Ridge Addition, under the evidence, was simply another unsuccessful real estate venture.
Blue Ridge Drive is a road which commences at the intersection of 100th Street and Triton Drive (28th Avenue N.W.) in front of Tract E and runs northeasterly parallel to the beach and then winds up through Blue Ridge Addition. No houses were upon the lots on either side of Blue Ridge Drive where it parallels the beach until about 1941 when a house was constructed several hundred yards north of tract E between Blue Ridge Drive and the railroad. In other words, except for the existence of Blue Ridge Drive the entire area including tract E and the portion of Blue Ridge Addition near it was completely undeveloped, uninclosed, unimproved, vacant, unoccupied and wild.
When the roads were constructed in Blue Ridge Addition in 1929, a sewer system was also installed, one of the outfall pipes of which led from a septic tank in tract E out into the waters of Puget Sound where sewage was discharged. In connection with the sewer system there was platted an easement for sewer purposes across tract E running diagonally from the northeasterly corner of tract E to a point near the bottom of the ravine carrying the larger stream where the same intersects the railroad right of way. At that point the level of the ground...
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