Tamblin v. Crowley

• Decision Date: 23 November 1917
• Docket Number: 14257.
• Citation: 99 Wash. 133,168 P. 982
• Parties: TAMBLIN v. CROWLEY et al.
• Court: Washington Supreme Court

168 P. 982

99 Wash. 133

TAMBLIN v. CROWLEY et al.

No. 14257.

Supreme Court of Washington

November 23, 1917

Department 1. Appeal from Superior Court, Thurston County; D.F. Wright Judge.

Action by Maud H. Tamblin against Mrs. J. Crowley and husband. Judgment for plaintiff, and defendants appeal. Affirmed.

Frank H. Kelley and Ralph Woods, both of Tacoma (Chas. L. Wescott, of Tacoma, of counsel), for appellants. Thomas M. Vance, of Olympia, for respondent.

PARKER J.

The plaintiff, Maud H. Tamblin, commenced this action in the superior court for Thurston county, seeking a judgment quieting her title as against the claim of the defendants to a strip of land lying along the west boundary of "Horton's Addition to Olympia, W.T.," enjoining their trespassing thereon, and the awarding of damages for their trespass already committed thereon. Trial in the superior court resulted in judgment in plaintiff's favor as prayed for, including an award of nominal damages. From this disposition of the cause the defendants have appealed to this court.

Appellants' claim of interest in the strip of land in controversy, as we understand the contentions here made in their behalf, is rested upon the theory that the land is a public highway dedicated as a street of Horton's addition, in which street they have a special interest, because of being the owners of a lot in that addition abutting thereon; also that in the event it be held that the street has been vacated, they thereby became the owners by reversion, freed from the public easement, of at least the east one-half of that portion of the street upon which their lot abuts; and also that they have, at least, an easement right of a private nature over the land in controversy.

Respondent's claim of title to the strip of land in controversy is rested upon the theory that the land never was dedicated as a street; that, if it ever was dedicated as such, it has become vacated by abandonment; that she has acquired title thereto through tax foreclosure proceedings and a deed issued in pursuance thereof, and also by adverse possession.

Horton's addition was surveyed and platted into blocks, lots, streets, and alleys in February, 1889, and a plat thereof duly executed and filed in the office of the auditor of Thurston county, by E.S. Horton and wife, the then owners of the land embraced within the limits of the plat. While the plat is entitled "Horton's Addition to Olympia, W.T.," it was, and still is, outside of the corporate limits of the city, being some distance to the east of the easterly boundary of the city, and not within the corporate limits of any city or town. Along the west side of the addition was left a strip of land, then assumed to be 40 feet wide, between the west line of the west row of blocks and the west line of the addition, being the strip of land here in controversy, which is claimed by appellants to have been dedicated as a street of the addition by the making and filing of the plat. There is room for arguing from facts appearing upon the face of the plat that this strip was not then dedicated as a street. We leave this question undecided, however. In May, 1889, soon after the filing of the plat, Horton and wife conveyed to appellants' predecessors in interest lot 10 in block 4 of the addition, the west line of which lot is coincident with the west line of the block and the east line of the land here in controversy. This lot fronts south upon a street of the addition furnishing access to it, the dedication and existence of which street has been unquestioned at all times since the filing of the plat.

In March, 1891, Horton and wife conveyed by quitclaim deed to R.S. Dorr the strip of land in controversy, describing its east boundary as being the west boundary of the west tier of blocks and its west boundary as the west boundary of the addition, but not stating its width. In April, 1891, Dorr surveyed and platted this strip of land into lots, streets, and alleys conforming with the streets and alleys running east and west in Horton's addition, and filed a plat thereof in the office of the auditor of Thurston county. This plat is entitled "Dorr's Subdivision of the West Thirty Feet of Horton's Addition to Olympia." While the strip is marked as 40 feet wide upon Horton's plat and 30 feet wide upon Dorr's plat, it is plain that Dorr actually platted lots occupying the entire space between the west boundary of Horton's addition and the west boundary of the west tier of blocks of that addition. All of these lots in Dorr's subdivision were placed upon the assessment and tax rolls of Thurston county in the year 1892 and following years, and since then have been treated by the taxing authorities of Thurston county as private taxable property, except during the time that the county was the owner thereof by virtue of a tax foreclosure. In July, 1902, there was duly rendered in a tax foreclosure proceeding brought by Thurston county a judgment in the county's favor foreclosing the claimed lien of the county for taxes levied upon all of the lots of Dorr's subdivision for the year 1895 and prior years, in pursuance of which the county became the purchaser of all of the lots in Dorr's subdivision, and a deed was issued to it accordingly. Thereafter, on March 12, 1904, by order of the board of county commissioners, the lots were sold and conveyed by the county in the manner provided by law for the sale of real property so acquired by the county.

Respondent has become the owner through conveyance and devise of whatever interest the county acquired by the tax foreclosure and sale. The county taxing officers have caused the lots to be taxed as other private taxable property in each year since the sale thereof by the county, and respondent and her predecessors in interest have paid the taxes so levied upon all the lots in each year as they became due since so acquiring them from the county. Since prior to March 12, 1904, respondent and her predecessors in interest have at all times been in actual visible possession of all the lots in Dorr's subdivision; such possession being evidenced by actual use and inclosure by a fence. There has been no attempt by any one to disturb the possession of the lots so held by respondent until in March, 1914, when appellants commenced to tear down the portion of the fence inclosing them which is along the boundary of their lot 10. That act on the part of appellants did not, however, result in respondent being actually dispossessed of any portion of the lots so held by her. The possession of respondent and her predecessors in interest has never been challenged by appellants or any of their predecessors in interest in any action or court proceeding until appellants served their cross-complaint in this action on March 30, 1914, which, it will be noticed, was more than 10 years after respondent's predecessors in interest acquired conveyance thereof from the county and entered into actual, visible, physical possession of the entire strip of land embraced in the plat of Dorr's subdivision.

There is but little conflict in the evidence touching the facts so far summarized. There is, however, some conflict in the evidence touching the question of the strip of land being open for use or used by the public as a highway during the 5-year period following the filing of the plat of Horton's addition in 1889. The learned trial judge did not make any formal findings on this question; apparently because of the case being one in equity, he regarded the making of findings unnecessary. It is apparent, however, from his observations made in rendering his decision, a memorandum of which we find in the record before us, that he was of the opinion that the street, assuming it was dedicated as such,...