State v. City of Seattle

• Court: Washington Supreme Court
• Writing for the Court: [57 Wash. 604] PARKER, J.
• Citation: State v. City of Seattle, 57 Wash. 602, 107 P. 827 (Wash. 1910)
• Decision Date: 10 March 1910
• Parties: STATE v. CITY OF SEATTLE et al.

107 P. 827

57 Wash. 602

STATE v. CITY OF SEATTLE et al.

Supreme Court of Washington

March 10, 1910

Department 2. Appeal from Superior Court, King County; John F. Main Judge.

Action by the State against the City of Seattle and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Scott Calhoun and Bruce C. Shorts, for appellant city.

Leander T. Turner and Sandford C. Rose, for other appellants.

W. P Bell, M. M. Lyter, and Douglas, Lane & Douglas, for respondent.

PARKER, J.

This is a suit to quiet title, prosecuted by the Attorney General in behalf of the state against a large number of defendants. A decree was rendered in favor of the state. The defendants city of Seattle, Lippy, and Crawford have appealed.

The land involved in this appeal consists of a strip of land 34 feet wide extending from Seneca to Union streets, and lying immediately on the west of the alley between Fifth and Sixth avenues in the city of Seattle. The state claims title to the land under a deed granting to the territory of Washington a 10-acre tract of land as a site for the Territorial University, which grant includes this strip. The city claims the strip has become a part of a public street, consisting of the alley and the strip, in all 50 feet wide. The other appellants claim a special interest, as a property right, in having the street maintained at the full width of the 50 feet because they are owners of lots abutting upon the easterly side of the alley. The principal reliance of appellants in support of their contention that the land in question is part of a public street is upon the ground that it has become such by prescription. There is room for argument as to whether or not the evidence shows such a use of the strip as to make it a part of a public highway by prescription, if that contention was being made against the rights of private parties instead of the state. We think however, that there are undisputed facts shown by the record sufficient to determine the rights of the parties independent of that question. These facts relate to the history and nature of the title acquired by the state in the land, and are as follows:

In December, 1860, the territorial Legislature passed an act (Laws 1860-61, p. 4) providing as follows: 'Section 1. Be it enacted by the Legislative Assembly of Washington Territory, that the Territorial University be, and the same is hereby located and established at Seattle, in King county Provided, a good and sufficient deed to ten acres of land, eligibly situated in the vicinity of Seattle, be first executed to the territory of Washington for university purposes.' Later at the same session, in January, 1861, an act was passed (Laws 1860-61, p. 17) providing, among other things, as follows: 'Section 1. Be it enacted by the Legislative Assembly of the Territory of Washington, that Daniel Bagley, John Webster and Edmund Carr be, and they are hereby constituted and appointed a board of commissioners to select, locate and receive a title for ten acres of land within the vicinity of Seattle, that may be donated to the territory of Washington for a site for the Territorial University. * * *' Thereafter Arthur Denny and others deeded to the territory a 10-acre tract of land, including the strip here involved, to be used as a site for the university. These deeds refer to the legislative provisions locating the university at Seattle, and contain recitals clearly evidencing an intent to restrict the use of the 10 acres to that of a site for the university. Thereafter the university was established upon the tract, and it was inclosed by a fense following the outer lines of the tract. At a meeting of the regents of the university held on August 1, 1873, action was taken by them and recorded in the journal of their proceedings as follows: 'Ordered that on petition of the residents adjoining the east and west sides of the university grounds, that they be authorized to appropriate so much of the university grounds as may be necessary to make a street fifty feet wide on each side, inclusive of alleys, provided that said residents shall erect a good substantial fence on the grounds, as good as least as the one first erected, within five months next ensuing.'

Soon thereafter the residents and persons at whose instance this action was taken moved the fence on the easterly line back upon the university grounds 34 feet, and reconstructed it there to the satisfaction of the regents. This it is claimed by appellants marked the beginning of the use of the strip which has converted it into a public street by prescription. Early in 1891 it was contemplated moving the university to its present location, and to the end that the restriction upon the alienation of the original site might be removed, and that it might be disposed of for the benefit of the university, the original donors of the part of the land here involved executed a deed to the state containing conditions and restrictions as follows: 'This grant is upon the following conditions to be kept and performed by second party. Second party shall cause to be duly passed by its state Legislature and approved by its Governor, proper enactments authorizing said second party by its proper officers to purchase or otherwise procure the fee to sufficient lands within six miles of the present so- called university site in said city of Seattle; said lands to be forever used exclusively for a state university purposes and shall be in a compact body of not less than 100 acres in extent: That said enactments shall further authorize second party to contract for the sale of the lands comprising the present so-called university site in said city of Seattle of which the aforesaid described lands are a part and parcel at such time as the said second party shall have procured by its proper officers other lands for the state university purposes. That said enactments shall authorize the sale of the lands hereinbefore described in such parcels and for such prices as may be most advantageous to the interests of the said state university. * * * Further provided that all the proceeds of the sale or sales of the lands constituting the present so-called university site in said city of Seattle shall be used: (1) For the purchase of other lands for a state university purposes as hereinabove provided. (2) For the erection of necessary and suitable buildings thereon for a state university purposes and the improvement of said lands. (3) The balance to be invested in such manner as the state Legislature may prescribe, the interest arising therefrom to be used in the support and maintenance of said university. Provided, however, that the principal may be used in the erection of additional university buildings on said lands. That said enactments shall also provide that sufficient of the present so-called university site in said city of Seattle shall continue to be used for a state university purposes until such time as other suitable buildings are erected upon the lands to be procured under the terms and conditions of this grant and said legislative enactments. This deed shall become operative according to its terms and conditions at such time as second party shall cause enactments to be passed and approved as aforesaid, authorizing the fulfillment of the terms and conditions of this instrument.'

Thereafter by Laws 1891, p. 229, and Laws 1893, p. 293, the Legislature accepted this deed, and provided for the establishing of the university at its present location. By section 7, p. 297, Laws 1893, it is, among other things, provided: 'The board of regents may, by decision of six-eighths of their number, duly ascertained by aye and nay vote, which shall be recorded in their minutes, proceed to sell the ten acres in the city of Seattle known as the 'university grounds,' which have been deeded to the state by A. A. Denny and others, which deeds are hereby accepted and made part of this act. Such sale shall be made at public auction only, and the said board of regents may sell the whole of said tract of ten acres or it may cause the same to be subdivided into lots and blocks, with streets and alleys conforming to the plan of the said city adjoining. No part of the said ten-acre tract shall be sold until 'the value thereof, less the improvement, shall be appraised' by three appraisers, one to be appointed by the Governor, one by the mayor of Seattle, and one by the board of regents, who shall be paid a reasonable compensation for their services out of the university fund. No public auction shall be held and no sale of any part of the said ten acres shall be made until after the board of regents has given notice of the time, place and terms of the sale, by publication for four successive weeks in one daily paper at Spokane, one in Walla Walla, one in Olympia, one in Port Townsend, one in Whatcom, one in Tacoma and one in Seattle.'

We have reviewed the history of the acquisition of this land by the territory and state, together with the legislation touching its management and disposition, in order that we may have before us the exact nature and purpose of the grant, and the terms upon which the territory and state accepted it.

Whether the action of the regents in 1873 be considered as an attempt to give the use of this strip to the adjoining owners, as the terms of the resolution seem to imply, or as an attempted dedication of a public street, it is clear that under the law as then existing the regents had no power to do either. Learned counsel for appellant do not seriously contend to the contrary, but argue that the action of the regents characterized the use which it is claimed then commenced and continued for sufficient time to constiute the strip a part of a public highway by prescription. The...