Yakima County v. Tullar

• Decision Date: 26 January 1888
• Citation: 17 P. 885,3 Wash.Terr. 393
• Parties: YAKIMA COUNTY v. TULLAR
• Court: Washington Supreme Court

17 P. 885

3 Wash.Terr. 393

YAKIMA COUNTY v. TULLAR

Supreme Court of Territory of Washington

January 26, 1888

Appeal from district court.

Judgment was rendered for J. M. Tullar for damages for the location by defendant, Yakima county, of a road through his timber-culture claim, and defendant appeals.

H.J. Snively, for appellant.

Reavis Mires & Graves, for appellee.

ALLYN J.

Appellee in 1885, entered a timber-culture claim on the N.W. 1/4 of section 30, township 9 N., range 26 E., in Yakima county, and thereafter cultivated said land under the timber-culture law. there were upon said claim three valuable spring. In the same year, appellee entered 160 acres adjoining as a homestead, and lives thereon. the water for appellee's dwelling and other purposes is derived from the springs above and upon said timber-culture entry. The following year, the county commissioners of said county ordered a road located directly through said timber-culture claim, and same was so located and opened as to place the said three springs in the middle of this road. Upon the report of appraisers appointed by the commissioners, appellee was allowed $100 as damages, from which he appealed to the district court. In the district court the question was submitted to a jury, and appellant herein moved the court to find a verdict for the defendant, which was refused; and instead, the court instructed the jury to "consider the value of plaintiff's [appellee's] timber culture as a timber culture, and not as land to which he had title, and determine the amount of damage to such timber culture." The jury assessed such damage at $450. There was ample evidence to sustain the amount of the verdict.

The question, as presented, is, can the appellee recover anything as damages to this timber culture, to which he has not as yet acquired title? That appellee had only the right of possession, with a right of later acquiring title that he could not have dedicated this piece of land to the public for a road; and that the right of way over public lands is granted to the public,--may all be conceded; and yet it by no means follows that a bona fide settler or entryman because the legal title has not yet vested in him, can thus be deprived of valuable rights, as would be the cse here. The right of way over "public lands" that is granted to the public for roads, etc., doubtless contemplates strictly public lands, such as are open to entry and...