Tsubota v. Gunkel, 9

• Decision Date: 31 August 1961
• Docket Number: No. 35741,No. 9,9,35741
• Parties: Satoshi TSUBOTA and Miyeko Tsubota, husband and wife, Appellants, v. George GUNKEL and Georgeanna Gunkel, husband and wife, Daniel Gunkel and Rosa Gunkel, husband and wife, James W. Hinkley and Lillian A. Hinkley, husband and wife, Klickitat County, Washington, a municipal corporation, and Klickitat County School District, a municipal corporation, and Alonzo Stark, Elizabeth E. Stark, Benjamin Stark, Lucy Henderson, Lucy Crawford, Perinilia Williams, Phoeba Houghton, and their unknown heirs, and also all other persons and parties unknown claiming any right, title, estate, lien or interest in the real estate described in the complaint herein, Respondents.
• Court: Washington Supreme Court

Page 586

58 Wn.2d 586

364 P.2d 549

Satoshi TSUBOTA and Miyeko Tsubota, husband and wife, Appellants, v. George GUNKEL and Georgeanna Gunkel, husband and wife Daniel Gunkel and Rosa Gunkel, husband and wife, James W Hinkley and Lillian A. Hinkley, husband and wife, Klickitat County, Washington, a municipal corporation, and Klickitat County School District No. 9, a municipal corporation, and Alonzo Stark, Elizabeth E. Stark, Benjamin Stark, Lucy Henderson, Lucy Crawford, Perinilia Williams, Phoeba Houghton, and their unknown heirs, and also all other persons and parties unknown claiming any right, title estate, lien or interest in the real estate described in the complaint herein, Respondents.

No. 35741.

Supreme Court of Washington, Department 1.

Aug. 31, 1961.

Atwell, Moore & Walstead, Kelso, for appellants.

J. E. Stone, Kelso, for respondents.

WEAVER, Judge.

This is an action to quiet title to a strip of land eighty feet wide that extends from east to west, bounded on the north by plaintiffs' (appellants') property and on the south by the properties of defendants (respondents). Plaintiss, husband and wife, claim ownership by adverse possession.

Four groups of defendants ¹ appeared in the action and denied plaintiffs' claim of ownership by adverse possession. By cross-complaint, each claimed ownership of the portion of the disputed strip that adjoins his tract of land on the north.

The trial court entered judgment, determining (1) that plaintiffs owned the north forty feet of the disputed strip that is contiguous to the south boundary of their property; (2) that plaintiffs owned an easement and right of way for a road--'as said road is now located'--that extends from west to east over a portion of the west end of the disputed strip, but one of the defendants, who owned a tract of land south of the strip, has the right to use the road; (3) that plaintiffs owned an easement to maintain a flume--'as said flume is now located'--for the flow of irrigation water across a portion of the disputed strip immediately north of a tract of land owned by one of the defendants; (4) that each defendant is the owner of the south forty feet of the disputed strip immediately north of and adjacent to his tract of land, subject to plaintiffs' easements for road and flume--as now located.

The facts giving rise to this dispute are these:

April 16, 1879, Amos Stark and William Hicinbotham owned all of the land now owned by the parties to this action. On that day, they filed, in the office of the county auditor, a plat designated 'Town Plat of Columbus Klickitat County Washington Territory.'

Eight days later--April 24, 1879--Amos Stark filed a plat of 'Amos Stark's First Addition to the Town of Columbus Klickitat County.' The addition joins the townsite on the east. The land described in both plats was then, and still is, wholly outside the limits of an incorporated town or city. Both plats designate city blocks comprised of eight fifty-foot lots, four on each side of a fifteen-foot alley. Eighty-foot streets are designated.

Defendants are the owners of the north tier of lots in the townsite and addition immediately south of the disputed strip of land. Any interest they may have in the forty-foot strip of land north of the north line of the northern tier of lots of the townsite and Stark's Addition thereto is conditioned upon there being a Fourth Street along the north boundaries of the townsite and addition. Such a street could arise only by dedication to the public, either express or implied.

In the main, the judgment from which plaintiffs prosecute this appeal is based upon defendants' theory of the case.

Plaintiffs' first assignment of error is directed to finding of fact No. 6:

'That to the North of Blocks * * * of said Columbus Townsite, and to the North of Blocks * * * in said Amos Stark's First Addition * * * there was at the time of dedication, and is now a street which has been named and designated Fourth Street of the width of eighty feet; which said street was dedicated for the use and benefit of the public for like use and benefit of all who might thereafter acquire ownership of the respective lots in said blocks * * * in said townsite and addition thereto.'

Referring to the original plats, as recorded in 1879 in the office of the county auditor, we find the following:

(a) Townsite. The streets are neither named nor numbered. Above the north line of the north tier of lots is a line extending east and west. Above the line is written 'Town Plat of Columbus Klickitat County Washington Territory.' Below this line and above the north line of the lots is a space, or area, that is open at all its intersections with streets extending north and south in the townsite. Does this space (the disputed strip later referred to as Fourth street) indicate a street?

(b) Stark's Addition. The north and south streets are designated by letter. Starting at the south end of the plat, the east and west streets are designated First, Second, and Third, coinciding with the streets in the townsite to the west. The north line of the plat is an extension, east and west, of the north line of the northern tier of city blocks, os that the north and south streets appear to be closed at the north; they do not open on the disputed strip, as in the plat of the townsite.

Error is not assigned to finding of fact No. 7:

'That the said Fourth Street described in paragraph six of these findings remained unopened for public use for a space of five years from and after the filing of said dedications; and since said date the said Fourth Street has remained, and is now unopened for public use; and by reason aforesaid and the facts herein found the said Fourth Street was vacated as a public road April 24, 1884.'

Finding of fact No. 7 becomes an established fact of this case ², subject to our disposition of plaintiffs' first assignment of error directed to finding of fact No. 6.

The controlling question is: What was the intent of the parties who made the plats? This intention is to be gathered principally from the plat itself; though, when the plat is ambiguous or uncertain, surrounding circumstances and even extrinsic evidence may be considered for the purpose of determining the real intention of the plattor. Osborne v. City of Seattle, 1909, 52 Wash. 323, 100 P. 850; Olson Land Co. v. City of Seattle, 1913, 76 Wash. 142, 136 P. 118.

In Gwinn v. Cleaver, 1960, 56 Wash.2d 612, 354 P.2d 913, 915, this court said:

'The law is settled that, in the interpretation of maps and plats, all doubt as to the intention of the owner or maker should be resolved against him. Mathews v. Parker, 163 Wash. 10, 299 P. 354.'

In the instant case, the record contains a photostatic copy of an undated map from the county assessor's office. Both platted additions appear thereon with a 'Fourth Street' designated to the north of the northern tier of lots of both additions. The map is of little evidential value. It does, however, indicate the interpretation placed upon the two plats by a county official.

We deem the following facts to be meaningful and to support the trial court's finding that

'* * * there was at the time of dedication, and is now a street which has been named and designated Fourth Street of the width of eighty feet. * * *'

(a) Amos Stark was one of the dedicators of the townsite plat and the sole dedicator of the plat of the addition; (b) the dedicators owned the property...