State v. Camp Lewis Service & Garage Co.

• Decision Date: 29 March 1924
• Docket Number: 18469.
• Citation: 224 P. 584,129 Wash. 166
• Court: Washington Supreme Court
• Parties: STATE v. CAMP LEWIS SERVICE & GARAGE CO. et al.

224 P. 584

129 Wash. 166

STATE v. CAMP LEWIS SERVICE & GARAGE CO. et al.

No. 18469.

Supreme Court of Washington

March 29, 1924

Department 2.

Appeal from Superior Court, Pierce County; Clifford, Judge.

Proceeding by the State against the Camp Lewis Service & Garage Company a corporation, W. L. Keller and Jane Doe Keller, his wife, to remove an obstruction from the Pacific Highway. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

John H Dunbar and Tom W. Holman, both of Olympia for appellants.

Revelle Revelle & Kells, of Seattle, for the State.

PEMBERTON J.

This is an appeal from the decree declaring the oil station at Camp Lewis operated by appellant as a nuisance.

On the 1st day of July, 1922, James Allen, the supervisor of highways of the state, served written notice upon appellant to remove its service station and gasoline pump and tanks encroaching upon the Pacific Highway; the notice providing as follows: 'That such encroachment interferes with the full use of said highway for highway purposes and you are therefore hereby notified to immediately remove all buildings and property above described and of whatsoever kind from the right of way of said highway or the undersigned, acting by and under the authority vested in him will proceed to have such obstructions removed.'

On July 11th the highway committee of the state of Washington, consisting of the Governor, the treasurer, the auditor, and the supervisor of highways, passed the following resolution:

'Whereas, there is a gasoline station located on the right of way of the Pacific Highway in the vicinity of Camp Lewis, Pierce county, and

'Whereas, the owners of said gasoline station were instructed by the highway committee on March 15th to remove the gasoline station from off the right of way of the Pacific Highway by July 1, 1922, and

'Whereas, the gasoline station has not been removed from the right of way of the Pacific Highway:

'Now, therefore be it resolved that the Attorney General of the State of Washington, is hereby requested to take the necessary steps to secure the removal of this gasoline station from the right of way of the Pacific Highway.'

Upon the refusal of appellant to remove its service station, this action was instituted to secure the removal of the same.

Appellant contends that the state failed to prove the ownership of the road in question. On December 4, 1911, the owners waived their claims of damages and consented to the location of the road, in part, as follows:

'We, the undersigned, being the owners * * * hereby consent that said road be established as described herein and surveyed and forever relinquish unto Pierce county, Washington, * * * giving and granting unto said Pierce county, Washington, the said right of way with full power and authority to examine, survey, lay out, and establish said road as proposed and to perpetually maintain the same as a county road.'

After the description of the land in controversy, the owner's name is signed as 'Marcus B. White.' Pierce county proceeded with the construction of the highway, and on the 13th day of July, 1922, conveyed the same to the state of Washington. It is now known as the Pacific Highway, improved and maintained by the state.

It is contended by appellant that it is not shown that Marcus B White was ever in possession of the property in question, and that at the time of the conveyance to the state of Washington appellant was in possession of the same. The county and the state have owned or have been in possession of this right of way since 1911. Section 6494, Rem. Comp. Stat., provides that----

'All public roads and highways in this state that have been used as such for a period of not less than seven years, and are now so used, where the same have been worked

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