Stofferan v. Okanogan County

• Decision Date: 01 November 1913
• Citation: 76 Wash. 265,136 P. 484
• Court: Washington Supreme Court
• Parties: STOFFERAN et ux. v. OKANOGAN COUNTY et al.

136 P. 484

76 Wash. 265

STOFFERAN et ux. v. OKANOGAN COUNTY et al.

Supreme Court of Washington

November 1, 1913

Department 2. Appeal from Superior Court, Okanogan County; R. S Steiner, Judge.

Action by Louis Stofferan and wife against Okanogan County and another. From a judgment for defendants, plaintiffs appeal. Reversed, and remanded for judgment for plaintiffs.

P. D. Smith, of Conconully, for appellants.

J. W Faulkner and Neal & Neal, all of Conconully, for respondents.

ELLIS J.

The plaintiffs brought this action to restrain the defendants from cutting their fences or interfering with their property rights in the southeast quarter of the southeast quarter of section 22, township 36 N., range 28 E. W. M. It is admitted that until October 10, 1900, this land was a part of the Colville Indian reservation, at which time the reservation was thrown open to settlement. Prior to that time, since 1896, it had been open to mineral location, and there were a good many people in that locality even then, though few actual settlers until 1900. There appears to have been some sort of a road across this land long prior to any occupancy thereof by the plaintiffs. Prior to the government survey, the defendant Lanoue occupied this 40 acres, and it is admitted that he fenced it, maintaining gates or bars across the road. As to whether or not these gates were always open to the public, there was a direct conflict in the evidence. Lanoue and other witnesses testified that they were; the plaintiff and one other witness that they were often locked. The plaintiffs claim that on September 22, 1909, the plaintiff husband filed an application in the United States land office at Waterville for the location of scrip for soldier's additional homestead on this 40 acres. In July, 1910, he built a fence across the road in controversy, prohibiting travel thereon. Shortly afterward Lanoue, under direction of the county commissioners, cut the wires of this fence, claiming the road as a public highway, and plaintiffs brought this action.

The complaint alleged, in substance, that the plaintiffs were the owners, subject to the paramount title of the United States of the land in question; that the defendants unlawfully entered upon the land, and destroyed the plaintiffs' fences; that no public highway has ever been established over this route--and prayed for an injunction perpetually restraining the defendants from interfering with the fences, or trespassing on the land, and for damages in the sum of $100 and costs. The answer alleged that the road in question has been for over 11 years last past a public highway and county road; that the plaintiffs wrongfully erected the fences; that the defendants did no injury to the fences except to cut them where necessary; that this road has been used as a public highway since 1895; that, by virtue of section 2477, Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1567), the public has a vested right to the road; that no part of the land in question has been reserved for public uses or purposes; that the county commissioners, by resolution, accepted the grant of roads over the public domain granted by the above-mentioned statute; and that for more than 11 years last past the public has been 'in open, notorious, peaceable, exclusive, uninterrupted, and adverse possession and use of said public highway under a bona fide claim of right thereto'--and prayed for the recognition of a right of way 60 feet wide as a public highway, and that the plaintiffs be restrained from interfering therewith, and for costs. The reply put in issue these affirmative matters.

The cause was tried before Hon. Ernest Peck, late judge of the superior court of Okanogan county, who died before rendering a decision. His successor being disqualified, the record of the trial was, on stipulation of the parties, submitted to the Hon. R. S. Steiner, another superior judge, for decision. Judge Steiner made findings to the effect that the road in question had been continuously traveled as a public road and highway at all times since the year 1895 until closed by the plaintiffs; that it was plainly marked upon the ground, and in a good state of repair; that no part of the land claimed by the plaintiffs has been reserved by the United States for any public use; that on August 11, 1903, the county commissioners of Okanogan county passed the following resolution: 'On motion of Commissioner Rosenfelt, seconded by Commissioner Wehe, the following order is unanimously adopted: Be it remembered, that on the 11th day of August, A. D. 1903, at a regular meeting of the board of county commissioners in and for Okanogan county, state of Washington, said meeting being duly held, and all members of said board being present, on motion it was ordered and resolved that the right of way for the construction of highways over public lands as granted by act of Congress (section 2477, Revised Statutes of the United States) be and the same is hereby accepted, as far as said grant relates to said Okanogan county, state of Washington; that is to say, to the extent of 30 feet on each side of the center line of all wagon roads which now exist or which have heretofore existed upon or across or over lands that are now public lands of the United States, not reserved for public uses in said Okanogan county, Washington'--that during all times since 1895, except for about 4 days when interrupted by the action of the plaintiffs, the general public has been in 'open, notorious, peaceable, exclusive, uninterrupted, and absolute use and possession of said road and highway, at all times claiming a legal right thereto as and for a public highway'; that the plaintiffs claim some right to the land over which the road passes, but the evidence does not establish any vested right in the plaintiffs to such land. On appropriate conclusions, the court entered a decree that the plaintiffs take nothing by this action, and that the defendant Okanogan county recover from the plaintiffs its costs; that the road in question is now, and has been at all times since 1895, a public road and highway of the defendant county; that the plaintiffs have no right, title, or interest in the roadway extending across the land in question, as the same existed and was used at the time of the commencement of this action; and that the title to the roadway as a public highway be quieted in the defendant county--and enjoined the plaintiffs from obstructing or interfering with it to the extent of 30 feet on each side of the center line thereof. From the decree, the plaintiffs prosecute this appeal.

After the signing of the decree, the court, at the instance of the appellants, made certain other findings, which the respondents move to strike. Since this is a trial de novo, in which we are passing upon the same record upon which the lower court based his decree, and since the lower court himself did not hear the evidence, his findings are not entitled to the same weight which would be accorded findings made by a judge who heard the evidence. Under such circumstances, these additional findings, though irregularly entered, cannot be prejudicial. The motion is denied.

1. On the merits, the respondents contend that the decree should be affirmed, because the plaintiffs showed no title to the land over which the road passed. The evidence of title and right to possession introduced by the plaintiffs was, in substance, as follows: The plaintiff husband testified that he bought and applied certain soldier's additional homestead scrip by filing upon this land; that, pursuant to his filing, he received from the United States land office at Waterville notices to be posted, and posted one upon the land, and published one in the Riverside Argus, received the affidavit of publication, and forwarded it to the United States land office at Waterville--all of which was done under printed and written instructions from the land office. He further testified that at that time he went into possession, and fenced the land. The plaintiffs, over objection that it was not the best evidence, introduced a letter to their attorney from the register of the United States land office at Waterville, which reads as follows:

'Department of the Interior, United States Land Office, Waterville, Wash., September 12, 1910. Mr. P. D. Smith, Conconully, Wash.--Sir: Louis Stofferan filed a Soldier's Additional Homestead Application, 06864, on September 22, 1909, for the lot 6, S.E. 1/4 S.E. 1/4 Sec. 22, T. 36 N., R. 28 E. W. M. and the same was transmitted to the General Land Office at Washington, D. C., from which nothing further has been heard in this office. This application segregates the land from further filing. I hereby certify that the above is a true and literal exemplification of the records in the above case. W. F. Haynes, Register.'

It will be noted that this letter purports to be a certificate or exemplification of the record of the plaintiff's filing in the local land office, and it is authenticated only by what purports to be the signature of the officer by whom it is signed. Assuming, without deciding, that it is not an exemplified copy within the terms of the federal statute or of any statute of this state, its admission would not change the result. Its admission could not be prejudicial, since the oral testimony was sufficient to establish the rightfulness of the appellants' entry and possession of the land, subject only to the paramount rights of the United States, as against all persons showing no better right. It established a bona fide intention to take the land as an additional homestead, which was sufficient to sustain the right of possession as against mere trespassers. Without regard to this certificate, we think the...