81 Wash. 96 | Wash. | 1914
Prior to the year 1893, the people residing in the vicinity of the road which has become the subject of this controversy, undertook to lay out a road along the section line between sections 17 and 18, township 29, north, of range 3, east, in Island county. The road is what the witnesses call a volunteer road. It was put through the timber by the labor and at the expense of those who were interested in it as a way of travel. In 1893, all of the people in that neighborhood, including defendant W. L. Weedin, petitioned the county commissioners to lay out and establish a county road along the section line. The county commissioners ordered the road established, but the county being without funds at that time, the road was not laid out on the ground, but was traveled along the route laid out by the volunteers, it being generally understood that the road would be opened when the county was iable to do so. Some of the witnesses described the road as having kinks and turns. Men who worked on the road said that they had no way to remove rocks and stumps, or to cut down hills, or to bridge low places, and that they went against the lines of least resistance. While there is a dispute as to the section line, to which we shall presently refer, it is certain that the road did not follow a true north and south line between the premises of the parties to this action. In 1913, the road supervisor undertook to straighten the road and put it upon the section line. In so doing, he encroached upon a part of the lands enclosed by the defendants, which lands have been enclosed for many years, first by a brush fence, then by brush fence with wire, and finally by boards with wire. Defendants, contending that the road had been established by user and that the road was not being put on
The first contention here is that an abutting landowner cannot maintain a suit for the removal of an obstruction in a public highway. This court, in line with what it has considered to be the better opinion, has settled the rule that such actions can be maintained by one who is in the situation of these plaintiffs. Sholin v. Skamania Boom Co., 56 Wash. 803, 105 Pac. 632, 28 L. R. A. (N. S.) 1053; Sweeney v. Seattle, 57 Wash. 678,107 Pac. 843; Brazell v. Seattle, 55 Wash. 180, 104 Pac. 155; Smith v. Centralia, 55 Wash. 573, 104 Pac. 797; Humphrey v. Krutz, 77 Wash. 152, 137 Pac. 806.
The real question of law involved is whether a road, established of record along a defined line but which has never been formally opened or laid out upon the ground, will bar the public from afterwards changing the line of travel to the true line. This question has been settled by this court. In the case of Clark v. Seattle, 71 Wash. 316, 128 Pac. 670, we held:
“Where the line of travel, in order to avoid hills, ravines and like topographical obstructions in the authorized way, leaves it for the purpose of going around the obstacle and, when passed, again enters the authorized way, that this is as much an opening and public use of the untraveled portions of the road as of that part actually used.”
This being so, it follows' that no right in the untraveled part of the road can be gained by adverse possession. A county holds an easement in its highways in trust for the public. Sumner v. Peebles, 5 Wash. 471, 32 Pac. 221, 1000; West Seattle v. West Seattle Land & Imp. Co., 38 Wash. 359, 80 Pac. 549; Rapp v. Stratton, 41 Wash. 263, 83 Pac. 182. An easement, once asserted by the public, will not be lost unless in virtue of some statute, or nonuser for a time, and under such circumstances as will create an estoppel. 37 Cyc.
Appellants have brought the record of the establishment of the road to this court and ask us to find, in aid of their contention, that, because of informalities in the proceeding, the road has no legal existence; that the statute of limitations has run in their favor; and that the proceedings were insufficient to warrant a finding that a lawful road was laid out on the section line as the trial judge found it to be.
It is unnecessary for us to make a technical examination of this record. A casual inspection of it, taken in connection with the whole testimony and the testimony of the defendants, convinces us that it was sufficient and that it was the intention of the whole neighborhood to put the road upon the section line as it was established. In fact, that is all there is to this case, both sides insisting that it be put upon the section line. The only question remaining therefore, is one of fact: that ds, the location of the section line.
We think the evidence clearly preponderates in favor of the finding of the trial judge, and that his decree establishing the road on the line between the section corners and the quarter section comer as it was located and its location is now fixed upon the ground by testimony of the witnesses, 'should be held to be the true line of the highway.
Affirmed.
Caow, C. J., Main, Ellis, and Gose, JJ., concur.