45 Wash. 307 | Wash. | 1907
-This is an action to recover damages caused by the obstruction of a roadway claimed to be a public highway. On the trial, at the conclusion of the appellants’ case in chief, the respondent interposed a challenge to the legal sufficiency of the evidence, which challenge the trial court sustained, and discharged the jury and entered a judgment in favor of the respondent. The appeal is from the judgment so entered.
The appellants sought to show that the roadway had become a public highway by prescription, and the sole question on this appeal is the sufficiency of the evidence to justify a finding by the jury to that effect. The character of the use necessary to establish a highway by user has been often before this court. We have held that, the use to be sufficient for that purpose must be an actual, uninterrupted, continuous use by the general public under a claim of right for a period of ten years; that it must be adverse to the owner of the property, and while such owner is without disability in law to assert and enforce his rights; and that use by license or permission of the owner, or while he is under disability, is not such a use as will create a public easement. Shell v. Poulson, 23 Wash. 535, 63 Pac. 204; 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; Seattle v. Smithers, 37 Wash. 119, 79 Pac. 615.
The use made of the roadway in question, it seems to us, falls far short of establishing a public highway under these requirements. The record shows that the appellants are the owners of block 13, in Spring Lake addition to the city of Spokane. On the west boundary of their property is a public highway known as Oak street. The south boundary is the north line of section 36, a school section which formerly belonged to the state of Washington. The barn and other out-buildings on the appellants’ premises are situated toward the rear thereof, probably 175 feet from Oak street.
As we say, these proofs seem to us insufficient to establish this way as a public highway. Plainly there was no adverse user of the way by the general public. Such use as was made of it by the appellants and their predecessors in interest, even if continued for a sufficient length of time, could have done no more than create a private easement, transferable perhaps by a transfer of the land to which it was appurtenant, but the general public would have had no rights
The evidence being insufficient to justify a verdict finding the way tó' be either a public or private way, the court did not err in talcing the case from the jury. The judgment is affirmed.
Mount, C. J., Crow, Dunbar, Hadley, and Root, JJ., concur.