55 Wash. 298 | Wash. | 1909
During the year 1890 the board of county commissioners of Pierce county laid out a public road along the section line between sections 21 and 22,, in township 20, north, of range 2 E., W. M. Albert Whyte and wife then owned one hundred and forty-five acres in section 22, abutting on the proposed road. At that time the board did not deem it advisable to construct the new road the entire distance along the section fine, because of the expense of bridging a slough adjacent to the Whyte lands. The board therefore procured from Whyte and wife a temporary dedication or grant of a right of way across the above described lands, which appears in the abstract of title in evidence in the following words:
“Do grant, convey and dedicate to the county of Pierce, Washington, for the use of the public as a county road the following lots, pieces or parcels of land, situate, lying and being in the county of Pierce and state of Washington and particularly bounded and described as follows, to wit: Thirty feet on each side of a fine described as follows: Beginning at a point 26.21 chains east of the southwest corner of section 22, township 20, north of range 2 east, run N. 37° 30' W., 7.23 chains, thence N. 16° W. 4.15 chains, thence east 4 chains, thence S. 53° 30' east 16-30 chains. To have and to hold the said premises unto the said Pierce county and its successors for the use of the public for a term not exceeding five years from the date hereof, at which time said tract shall revert to these grantors.”
The road was thereupon constructed over the right of way
A highway may exist by prescription in this state. Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. 858; Yakima County v. Conrad, 26 Wash. 155, 66 Pac. 411; Seattle v. Smithers, 37 Wash. 119, 79 Pac. 516. At the same time all the essential elements of adverse possession must be present. The possession or use must be open, notorious, continuous, and adverse. Shell v. Poulson, 23 Wash. 535, 63 Pac. 204; Watson v. County Commissioners of Adams County, 38 Wash. 662, 80 Pac. 201.
Under the admitted facts in this case, it seems to us that
“If the use of a way over one’s land is shown to be permissive only, no right to use it is conferred, though the use may have continued for a century or any length of time. ‘A different doctrine would have the tendency to destroy all neighborhood accommodation in the way of travel; for if it were once understood that a man, by allowing his neighbor to pass through his farm without objection over the pass way which he used himself, would thereby, after the lapse of •twenty or thirty years, confer a right on him to require the passage way to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue. To create the presumption of a grant of a right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that its use was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it, without regard to the wishes of the owner of the land. The use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege revocable at the pleasure of the owner of the soil.’ ” Jones, Easements, § 282.
Again :
“If the use of a way was begun under a license to one who afterwards repudiated the license, he can acquire a right by prescription only by use of the way for the period of limitation, after he has repudiated the license, and claim a right in himself, adverse to the owner of the land, with knowledge of such claim and acquiescence in it by the owner of the land.” Id., § 284.
“If permissive in its inception, then such permissive character being stamped on the use at the outset, will continue of the same nature and no adverse user can arise until a distinct and positive assertion of a right hostile to the owner, anS brought home to him, can transform a subordinate and friendly holding into one of an opposite nature, and exclu*302 sive and independent in its character.” Pitzman v. Boyce, 111 Mo. 387, 392, 19 S. W. 1104, 33 Am. St. 536.
See, also, Nelson v. Nelson, 41 Mo. App. 130; Hurt v. Adams, 86 Mo. App. 73; Pennsylvania R. Co. v. Hulse, 59 N. J. L. 54, 35 Atl. 790; 14 Cyc. 1151; Shell v. Poulson, and Watson v. County Commissioners, supra.
The judgment of the court below is reversed, with directions to enter judgment in accordance with the prayer of the complaint.
Chadwick, Gose, Morris, and Fullerton, JJ., concur.