Thonney v. Rice

• Decision Date: 22 September 1906
• Citation: 43 Wash. 708,86 P. 713
• Court: Washington Supreme Court
• Parties: THONNEY et ux. v. RICE, Road Sup'r.

86 P. 713

43 Wash. 708

THONNEY et ux. v. RICE, Road Sup'r.

Supreme Court of Washington

September 22, 1906

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Suit by Paul Thonney and wife against George M. Rice, as road supervisor of district No. 2, Walla Walla county. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Oscar Cain, for appellants.

Lester S. Wilson, for respondent.

HADLEY J.

This action involves the dedication of a street, and plaintiffs seek to enjoin the opening thereof. The following is a substantial statement of the agreed facts in the case: On the 10th day of March, 1883 James W. Cochran and wife were the owners of the tract of land described in the complaint, and of other lands contiguous thereto. On said date they caused said lands to be platted as an addition to the town of Dixie. The plat showed the land described in plaintiffs' complaint, as platted into lots and blocks which were numbered and designated thereon, and it also showed certain streets running through the land. Among the streets so designated was Main street which was described as being 60 feet in width through the premises described in the complaint. The plat was duly acknowledged and filed for record in the office of the auditor of Walla Walla county on said 10th day of March 1883, where it was also recorded. The plat contained the following dedication of the streets shown thereon: 'The streets as shown on the map of Cochran's addition to the town of Dixie are hereby dedicated to public use; but the right to inclose and keep inclosed and use all the streets until it is necessary to use them as a means of ingress and egress to property sold in said addition is hereby reserved.' After said date, said Cochran and wife conveyed the lands described in the complaint to one Clancey, who afterwards conveyed them to the plaintiffs. Prior to such conveyance Cochran and wife also conveyed certain lots in said addition to one Marion Koger. On the 3d day of June, 1905, said Marion Koger and one George Cochran, who were then the owners of lots in said addition, petitioned the board of commissioners of Walla Walla county to open said Main street for public travel. They alleged the necessity for opening the street as a means of ingress and egress to and from their said lots. Thereupon a hearing was had upon the petition, and the county commissioners entered an order requiring the street as shown upon said plat to be opened for public travel. The defendant is the road supervisor of road district No. 2 of Walla Walla county, and, unless restrained, he will, in accordance with said order, proceed to open the street. No order has ever been made or action taken by the board of county commissioners of Walla Walla county accepting the plat of said addition or the dedication of the roads and streets thereon, except as above stated. No work has ever been done upon said street, and no money has been expended thereon by said county, since the filing of the plat. The street has never been opened to public travel and has never in any way been used or occupied by the public as a highway. During all times since the filing of the plat, the plaintiffs and their grantors have been in the peaceable, quiet, undisturbed, and exclusive possession of said street, and have occupied and cultivated the same as they have other lands in the addition. All taxes paid by the plaintiffs upon that portion of the lands described in the complaint which are included in said plat have been paid upon lots and blocks as shown upon the plat. The plaintiffs have never paid any taxes upon said strip 60 feet in width designated upon the plat as Main street, and no part of said Main street has ever been upon the assessment rolls for taxation since the plat was filed. From the foregoing facts the court found as conclusions of law that, at the date of the commencement of the action, the defendant, as road supervisor, had, and that he now has, the legal right to open as a public road the street designated upon said plat as Main street, and that plaintiffs are not entitled to the relief demanded in their complaint. Judgment was entered dismissing the action, and the plaintiffs have appealed.

Appellants argue that there was never an effective dedication of this highway, for the reason that the plat was not accepted by the board of county commissioners. At the time the plat was filed, the following statutes were in force as now found in sections 1264 and 1276, Ballinger's Ann Codes & St.: 'Sec. 1264. Whenever any city or town has been surveyed and platted, and a plat thereof showing the roads, streets, and alleys...