37 Wash. 119 | Wash. | 1905
This action was brought by appellant to perpetually enjoin the respondent from fencing up, and otherwise obstructing, a road known as the “county road,” for the reason that the said road is a public highway,'and the obstruction thereof unlawful. The road in question extends in a northerly direction from the north end of Dexter avenue, in the city of Seattle, to and beyond the town of Kremont, across and upon a certain tract of land owned by respondent Smitkers, and lying within the corporate limits of the city of Seattle. Appellant bases its contention upon the fact that the road in question is a public highway by prescription and adverse user. Upon the trial on the merits, the lower court made findings of fact, and thereupon entered a decree- dismissing the action. This appeal is taken from that decree.
The evidence is not brought liebre, but the appellant relies solely upon findings, as made by the lower court. Respondents move to dismiss the appeal upon the ground that the case, being an equity case, must be tried here de- novo,
The principal findings made by the lower' court, and the only ones necessary to be considered upon this appeal, are as follows:
“3. That there is now, and for more than twenty-five years immediately preceding the commencement of this action and ever since the year 1878, has been, a plainly marked and defined and generally traveled road across said Smithers tract of land and leading in a northerly direction from the northerly extension of said Dexter avenue from said city of Seattle to and beyond, the town of Premont, which said road has, during all of said time, and ever since the said year 1878 been generally, habitually and universally traveled by the citizens and residents of said city of Seattle and by the public at large, adversely,' continuously, and uninterruptedly, down to> the month of February, 1903,
“4. That prior to the year 1890, during which year that certain road or highway known as the Boulevard was completed, said road across said Smithers tract, which was during all of said time, and is now, known and designated as the county road, was the generally, universally and only traveled road between said city of Seattle to- and beyond said town of Premont, and that, ever since the comnletion of said road or highway known as the Boulevard, said road*122 across said Smithers tract, known and designated as tlie county road as aforesaid, has been continuously, adversely and uninterruptedly used by said citizens of Seattle and the general public down to said month of February, 1903.
“5. That during said mouth of February, 1903, and immediately preceding the commencement of this action, said defendants and each of them obstructed said roadway across said Smithers tract and prevented the same from being used by' the citizens of Seattle and the general public by means of fences and ditches erected and excavated across the same, and by means of plowing the same up, and that they threatened and held out, and continue to threaten and hold out, that it is their purpose and intention to1 obstruct said roadway across said Smithers tract so as to prevent the public or any person or persons whomsoever from using or traveling the same. . . .
“9. That, neither said city of Seattle nor the county of King wherein said city is situate has, by its proper officer or officers, or at all, ever done or performed any work or labor upon said roadway, or kept up or maintained tbe same, and that all work and labor done and performed upon said roadway for the purpose of keeping the same in condition for public travel, has been done by private citizens.”
It will be noticed that the court specifically finds that the road in question had been “generally, habitually and universally traveled by the citizens and residents of said city of Seattle and by the public at large, adversely, continuously and uninterruptedly,” for a period of twenty-five years. There is no finding ‘to the effect that this use was a permissive use. The finding that the use was adverse, continuous, and uninterrupted necessarily excludes the idea that it was permissive. Ko authority is called to our attention which holds that the use herein found does not constitute a highway by prescription. On the other hand, authorities are numerous which hold that a road or street which has been used by the general public adversely
In Shell v. Poulson, 23 Wash. 535, 63 Pac. 204, this court said:
“We also reaffirm the doctrine announced in Smith, v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. 858, and fully appreciate the sentiment that the validity of public highways should be recognized by the courts whenever the law has been substantially complied with in the establishment of the same by the proper tribunal, or whenever the public has been in the unquestioned, adverse, and uninterrupted use of the same for the necessary period of time.”
See, also Megrath v. Nickerson, 24 Wash. 235, 64 Pac. 163; Yakima County v. Conrad, 26 Wash. 155, 66 Pac. 411; Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777.
The lower court was evidently of the opinion that before a road could become a public highway by prescription, public work or money must have been expended thereon, under the provisions of Bal. Code, § 3846, because a finding was made to the effect that no work has been done on the road at public expense. But this statute does not apply to roads which have been used adversely for a period of time sufficient to constitute a road by prescription without public expense thereon. It applies to cases only where public work and money have been expended. In such cases seven years’ user is made sufficient In other cases the prescriptive period is co-extensive with the period of limitation for quieting title to the lands. Wasmund v. Harm, supra. The purpose of this statute was evidently to lessen the prescriptive period, when public work and money had
The judgment appealed from is therefore reversed, and the cause remanded with directions to the lower court to-grant the relief prayed for.
Fullerton, Hadley, and Dunbar, JJ., concur.
Rudkin, Root, and Crow, JJ., took no part.
