99 Wash. 133 | Wash. | 1917
The plaintiff, Maud H. Tamblin, commenced this action in the superior court for Thurston county, seeking a judgment quieting her title, as against the claim of the defendants, to a strip of land lying along the west boundary of “Horton’s Addition to Olympia, W. T.,” enjoining their trespassing thereon, and the awarding of damages for their trespass already committed thereon. Trial in the superior court resulted in judgment in plaintiff’s favor as prayed for, including an award of nominal damages. From this disposition of the cause, the defendants have appealed to this court.
Appellants’ claim of interest in the strip of land in controversy, as we understand the contentions here made in their behalf, is rested upon the theory that the land is a public highway dedicated as a street of Horton’s addition, in which street they have a special interest because of being the owners of a lot in that addition abutting thereon; also that, in the event it be held that the street has been vacated, they thereby became the owners by reversion, freed from the public easement, of at least the east one-half of that portion of the street upon which their lot abuts; and also that they have at least an easement right of a private nature over the land in controversy.
Respondent’s claim of title to the strip of land in controversy is rested upon the theory that the land never was dedi
Horton’s addition was surveyed and platted into blocks, lots, streets and alleys in February, 1889, and a plat thereof duly executed and filed in the office of the auditor of Thurston county by E. S. Horton and wife, the then owners of the land embraced within the limits of the plat. While the plat is entitled “Horton’s Addition to Olympia, W. T.” it was, and still is, outside of the corporate limits of the city, being some distance to the east of the easterly boundary of the city, and not within the corporate limits of any city or town. Along the west side of the addition was left a strip of land, then assumed to be forty feet wide, between the west line of the west row of blocks and the west line of the addition, being the strip of land here in controversy, which is claimed by appellants to have been dedicated as a street of the addition by the making and filing of the plat. There is room for arguing, from facts appearing upon the face of the plat, that this strip was not then dedicated as a street. We leave this question undecided, however.
In May, 1889, soon after the filing of the plat, Horton and wife conveyed to appellants’ predecessor in interest lot 10 in block 4 of the addition, the west line of which lot is coincident with the west line of the block and the east line of the land here in controversy. This lot fronts south upon a street of the addition furnishing access to it, the dedication and existence of which street has been unquestioned at all times since the filing of the plat. In March, 1891, Horton and wife conveyed, by quitclaim deed, to R. S. Dorr the strip of land in controversy, describing its east boundary as being the west boundary of the west tier of blocks and its west boundary as the west boundary of the addition, but not stating its width. In April, 1891, Dorr surveyed and platted this strip of land into lots, streets and alleys conforming with the
In July, 1902, there was duly rendered in a tax foreclosure proceeding brought by Thurston county a judgment in the county’s favor foreclosing the claimed lien of the county for taxes levied upon all of the lots of Dorr’s subdivision for the year 1895 and prior years. In pursuance of which the county became the purchaser of all of the lots in Dorr’s subdivision, and a deed was issued to it accordingly. Thereafter, on March 12, 1904, by order of the board of county commissioners, the lots were sold and conveyed by the county in the manner provided by law for the sale of real property so acquired by the county. Respondent has become the owner, through conveyance and devise, of whatever interest the county acquired by the tax foreclosure and sale. The county taxing officers have caused the lots to be taxed as other private taxable property in each year since the sale thereof by the county, and respondent and her predecessors in interest have paid the taxes so levied upon all the lots in each year as they became due since so acquiring them from the county. Since prior to March 12, 1904, respondent and her predecessors in interest have at all times been in actual, visible possession of all the lots in Dorr’s subdivision, such possession
Assuming that the strip of land in question was dedicated by the filing of the plat of Horton’s addition, we inquire, Was
“Any county road, or part thereof, which, has heretofore been, or may hereafter be authorized, which remains unopened for public use for the space of five years after the order is. made or authority granted for opening the same, shall be, and the same is hereby vacated, and the authority for building the same barred by lapse of time.” Laws of 1890, p. 603, § 32; Ballinger’s Code, § 3803; Laws of 1909, p. 188; Rem. Code, § 5673.
We have seen that this strip of land, claimed to be dedicated as a street, never was. within the corporate limits of any city or town. We have held that such a dedicated street is a “county road” within the meaning of the act of 1890 above quoted, and as such subject to vacation by abandonment, that is, by failing to be opened to travel or used by the public for travel. Murphy v. King County, 45 Wash. 587, 88 Pac. 1115; Cheney v. King County, 72 Wash. 490, 130 Pac. 893; Smith v. King County, 80 Wash. 273, 141 Pac. 695. The soundness of these decisions so interpreting the laws of 1890 is questioned and some effort made to have-us reexamine the question of whether that law had any application to dedicated streets in plats outside the limits of incorporated cities and towns, or applies only to county roads established by the county authorities. In. view of the fact that this interpretation of the law of 1890 has, in effect, become and remained a rule of property for over ten years, we would not now feel privileged to disturb it, even though the court as now constituted might be inclined to think it unsound as an original proposition. We are of the opinion that whatever right the public may have had in this strip of land as a public highway by virtue of the platting of Horton’s, addition was lost by abandonment under the act of 1890, above quoted, upon the expiration of five years following the filing of that plat.
Counsel for appellants argue that they are, in any event, the owners of an easement of a private nature over the lots in Dorr’s subdivision, though the public may have lost all right therein as a highway, because of the fact that the land was platted as a street in Horton’s addition, with reference to the plat of which their predecessors in interest acquired title to lot 10 by conveyance from the original dedicators thereof. Appellants’ counsel invoke the law as announced by us in Van Buren v. Trumbull, 92 Wash. 690, 159 Pac. 891, L. R. A. 1917A 1120. We may concede that, notwithstanding the public lost its right in the street by abandonment, appellants
Contention is made in appellants’ behalf that the tax foreclosure deed to the county, under which respondent claims title, is void. Some irregularities in the foreclosure proceedings are suggested; the most serious being the alleged premature commencement of the action to foreclose the tax lien of 1895 and prior years. We think, however, that this is not such a defect as is available to appellants at this late day. This tax deed has remained unchallenged from the time of its issuance by the county to itself in the year 1902 until the filing of appellants’ cross-complaint to this action in the year 1914, a period of approximately twelve years. Clearly the right to challenge the deed is barred by the three years’ statute of limitations requiring that:
“Actions to set aside or cancel the deed of any county treasurer issued after and upon the sale of lands for general, state, county or municipal taxes, or for the recovery of lands sold for delinquent taxes, must be brought within three years from and after the date of the issuance of such treasurer’s deed.” Rem. Code, § 162.
See, also, Sparks v. Standard Lumber Co., 92 Wash. 584, 159 Pac. 812; Keller v. Davis, 93 Wash. 336, 160 Pac. 946. This is not a case where appellants or their predecessors in interest were in possession of the land, as in Buty v. Goldfinch, 74 Wash. 532, 133 Pac. 1057, Ann. Cas. 1915A 604, 46 L. R. A. (N. S.) 1065. Nor is it a case where appellants or their predecessors in interest have been under disability.
Some contention is made in appellants’ behalf that they are, at least, entitled to be adjudged the owners, or to have a private easement over, the east ten feet of the strip of land in controversy. This contention is rested upon the assumption that the strip of land is, in fact, forty feet wide, while the lots in Dorr’s subdivision, which respondent and her
The judgment is affirmed.
Ellis, C. J., Fulleeton, Main, and Webstee, JJ., concur.