Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

MENTS.

the amendment of 1901, though the reasons quently sells all the abutting property, retain. for holding it invalid are not clear, evident- ing legal title to the strip, such strip becomes ly because that was not a question of seri- a public alley by prescription, where the use is

without the legal owner's consent. ous controversy in the case.

(Ed. Note. For other cases, see Municipal In Flueck v. Pedigo, 55 Wash. 646, 104 Corporations, Cent. Dig. $8 1421, 1422; Dec. Pac. 1119, there was involved a summons Dig. 8 648.* ] which seems to have been assumed, rather | 3. DEDICATION (88_15, 43*)-PAROL DEDICAthan directly held, to be void. Here also TION OF ALLEY-PROOF. the question does not appear to have been land for a public alley is a question of inten

The fact of the dedication of a strip of seriously in controversy.

tion; and, where the dedication rests in parol, In Thompson v. Schoner, 58 Wash. 642, it is provable by parol testimony. 109 Pac. 116, there was involved a summons [Ed. Note.-For other cases, see Dedication, which required the defendant to appear, Cent. Dig. $$ 13, 83, 84; Dec. Dig. &$ 15, 43.-1 using the language of the law in existence 4. MUNICIPAL CORPORATIONS ($_697*)_0Bprior to the amendment of 1901. It was held STRUCTION OF PUBLIC ALLEY-INJUNCTION. void for reasons which are not clear, from of a public alley, defendants answered that

Where, in an action to enjoin obstruction the language of opinion, unless we assume they proposed to exclude plaintiffs from using that it failed to state the dates of its public the alley, it was error to dismiss the action on cation. The language of the opinion, how the ground that there was no threatened ob

struction, though one defendant testified that he ever, indicates that it was conceded to be in- had never forbidden any one to use the alley, sufficient to confer jurisdiction.

and intended to do nothing illegal. No other decision of this court has come [Ed. Note.-For other cases, see Municipal to our notice touching the questions here in- Corporations, Cent. Dig. $$ 1502-1505; Dec. volved, and we think there is none in con

Dig. $ 697.*) flict with the view we here express, that the 5. MUNICIPAL CORPORATIONS (8 671*)—0Bsummonses in these tax foreclosures, con

STRUCTION OF ALLEY--ABUTTING OWNERS

RIGHT TO ENJOIN. forming as they strictly do, in their direc

An action to enjoin a threatened obstruction to the defendants to appear, to the rev- tion of a public alley may be maintained by the enue law existing at and prior to the time abutting owners. of their last publication, and stating the

[Ed. Note.--For other cases, see Municipal dates of their first and last publication, were Dig. 8 671.*]

Corporations, Cent. Dig. $8 1447–1450; Dec. sufficient, upon the completion of their serv

6. DEDICATION (8 39*)-PUBLIC ALLEY-Esice thus made, to confer upon the court ju

TOPPEL-PAYMENT OF TAXES AND ASSESSrisdiction to render the judgments in the tax foreclosure proceedings. We note that That the owners of the legal title to a some of the syllabi to the decisions we have strip of land dedicated for use as a public alley

paid certain taxes and assessments thereon reviewed refer to the Revenue Law of 1897 | did not estop either the city or the abutting without qualification, when in some instances owners from asserting its public character. at least they evidently mean the Revenue (Ed. Note.-For other cases, see Dedication, Law of 1897 as amended by the act of 1901. Cent. Dig. $ 77; Dec. Dig. $ 39.* ] The judgment is affirmed.

7. QUIETING TITLE (8 2*)-PARTIES-ABUT

TING OWNERS-PUBLIC ALLEY. CROW, C. J., and MORRIS and MOUNT,

Abutting owners may sue to quiet title to

an easement in an alley, and to the fee which JJ., concur.

they hold subject thereto.

[Ed. Note. For other cases, see Quieting Ti(77 Wash. 152)

tle, Dec. Dig. $ 2.*] HUMPHREY et al. v. KRUTZ et al.

8. "EASEMENTS” (1*)-NATURE. (Supreme Court of Washington. Dec. 31, An "easement,” although an incorporeal 1913.)

right, is an interest in land. 1. DEDICATION ($ 18*)-PAROL DEDICATION OF [Ed. Note.-For other cases, see Easements, ALLEY-WHAT CONSTITUTES.

Cent. Dig. 88 1, 2, 5–7; Dec. Dig. 8 1.* Where a property owner 80 fences his

For other definitions, see Words and Phrases, property as to leave a passageway connecting vol. 3, pp. 2305–2311; vol. 8, pp. 7646, 7647.) two public streets, which strip is continuously used by people having business with the abut

Department 1. Appeal from Superior Court, ting owners, for more than 10 years, and subsequently sells all the abutting property, retain-King County; Guy C. Alston, Judge. ing legal title to the strip, such strip becomes Action by J. J. Humphrey and others a public alley by parol dedication to the pub- against Harry Krutz and others. From a lic, where the use is with the legal owner's judgment of dismissal, plaintiffs appeal. Re consent. [Ed. Note.–For other cases, see Dedication,

versed, with directions. Cent. Dig. 88 33–36; Dec. Dig. § 18.*]

Peterson & Macbride and John S. Jurey, all 2. MUNICIPAL CORPORATIONS ($ 648*) — AL- of Seattle, for appellants. Jay C. Allen, of LEYS-ESTABLISHMENT-PRESCRIPTION.

Where a property owner so fences his Seattle, for respondents. property as to leave a passageway connecting two public streets, which strip, by reason there

GOSE, J. This action is prosecuted by of, is continuously used by people having busi.

with the owners of property abutting abutting owners, to enjoin a threatened obthereon, for more than 10 years, and subse-) struction of an alleged alley in the city of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rop'r Indexes

ness

[ocr errors]

LOER SOEK

[ocr errors]

Seattle, and for general relief. The strip of that in 1888 one Turner and wife, who then land in controversy is 10 feet wide, and ex- owned the entire block, fenced all of the west tends from Weller street south, a distance side of the block up to the west side of the of 240 feet, to Lane street. Its west line alley in controversy, in one tract, and the is 80 feet east of the east line of Seventh 30-foot strip east of it in another tract, learavenue. The strip lies within the heavy | ing the land in controversy uninclosed. They black lines shown upon the annexed map. A then sold all the property abutting upon both strip of land 30 feet in width lies between the sides of the strip in controversy by metes alleged alley and an alley regularly dedi- and bounds, retaining the legal title to the cated, which extends through the center of 10-foot strip. After the death of Turner, and the block,

in October, 1905, the widow conveyed the leWELLER STREET

gal title to the 10-foot strip to respondent Harry Krutz by a quitclaim deed. From 1888 until the regrade of connecting streets in 1909, the strip was used continuously as a public highway, and the end adjoining Weller street is still so used. The connec tion at Lane street makes the use of that end of the alley at present impracticable) Whether the strip of land was used with the consent of the Turners, the legal owners, or in hostility to the title of the legal owners, the result is the same. If used with their consent and approval, there was a parol dedication to the public. If used without their consent, a prescriptive right is clearly established.

Ave.

SEVENTH

EIGHTH Avg. So.

LANE

STREET

[3] An owner of real property may dedicate it, or an easement in or over it, to a public use. The fact of dedication is a ques

tion of intention, and, where the dedication The complaint alleges that the defendants rests in parol, it is provable by parol testiKrutz claim a fee simple title to the strip of mony. Seattle v. Hill, 23 Wash. 92, 62 Pac. land, and that they “propose to appropriate 446; Lueders v. Tenino, 49 Wash. 521, 95 said 10-foot strip for their own private use

Pac. 1089; Roundtree v. Hutchinson, 57 and benefit, and to exclude plaintiffs wholly Wash, 414, 107 Pac. 345, 27 L. R. A. (N. S.) therefrom." The defendants Krutz in their 875. answer “admit that they own and claim to An offer of dedication may be accepted by own said 10-foot strip, and that they claim a public user. 13 Cyc. 465. and do assert title thereof in fee simple, and

If there was no intention to dedicate the that they propose and will exclude the plain- land to a public use, there was an open, tiffs wholly therefrom.” The defendant city notorious, continuous, and adverse user by in its answer alleges that it claims the land the public for a period of 20 years or more. "to be a public alley," and prays that the [4, 5] The trial court dismissed the action action be dismissed. At the close of all the because there had been no actual and, in his evidence a judgment was entered dismissing opinion, no threatened obstruction of the the action.

alley. Entertaining this view, he expressed The appeal presents two questions: (1) the opinion that abutting owners could not Does the evidence show that the strip of land maintain the action. In this we think he in controversy is an alley either (a) by parol was in error. The complaint alleges, as we dedication, or (b) by prescription; and (2) have seen, that the respondents Krutz “proCan the appellants, as abutting owners upon pose

to exclude" the appellants the facts shown, maintain the action ? from using the alley. They answered that

[1, 2] In respect to the first question the “they propose and will exclude” the appeltrial judge in passing upon the case said lants from using it. This is obviously a that, if he were passing upon the merits he threatened interference with the rights of would find that the strip in controversy is the appellants. The fee of streets and ala public highway "by virtue of the fact that leys is in the abutting owners, except in rare it was fenced off by Turner, the original own- instances not present in this case. Rowe v. er thereof, leaving a passageway connecting James, 71 Wash. 267, 128 Pac. 539; Gifford two public streets, and by reason of the fact v. Horton, 54 Wash. 595, 103 Pac. 988; Northat it was used continuously, by people hav-ton v. Gross, 52 Wash. 341, 100 Pac. 734. ing business with the owners of property An abutting owner has two distinct kinds abutting thereon, for more than 10 years, of rights in a street, the public one, which he this ownership being open and exclusive un- enjoys in common with all citizens, and prider an apparent right." We are in hearty vate rights, which arise from his ownership accord with these views. The evidence shows of contiguous property. 28 Cyc. 856.

"Ordinarily an injunction will be granted 193, 87 Pac. 1121, 122 Am. St. Rep. 890; when the act or thing threatened or appre- Vietzen v. Otis, 46 Wash. 402, 90 Pac. 264. hended is a nuisance per se, or will neces- In Davidson v. Nicholson, it was held that sarily become a nuisance, or will be denied the plaintiff could quiet his right to an ease when it may or may not become a nuisance, ment of a right of way across the defendaccording to circumstances, or when the in- ant's land. In Standart v. Round Valley jury apprehended is doubtful, contingent, or Water Co., it was held that the plaintiff eventual, merely.” Winsor V. Hanson, 40 could quiet his title in water and in the Wash. 423, 82 Pac. 710.

pipe line through which it was conveyed to A remote danger will not suffice. It must his quartz mill. be threatened and probable. 28 Cyc. 902, “The jurisdiction in actions to quiet title 903.

or remove cloud does not rest on arbitrary We have uniformly held that an abutting rules; much depends on the facts of the owner may maintain an action to enjoin an | particular case, and in the exercise of the actual or threatened obstruction of the high- jurisdiction the court is clothed with a large way. Brazell v. Seattle, 55 Wash. 180, 104 / discretion.” 32 Cyc. 1308D. Pac. 155; Smith v. Centralia, 55 Wash. 575, In Povah v. Lee, supra, in considering the 104 Pac. 797 ; Sweeney y. Seattle, 57 Wash. statutes of the state* pertaining to actions to 678, 107 Pac. 843.

quiet title, this court said: “These statutes In Brazell v. Seattle it was held that abut- were intended to, and do, we think, provide a ting owners had such a special interest in a remedy for every claimant of real property, street that they could enjoin the city from no matter what may be the nature of the re carrying out a void ordinance directing it's lief required." vacation. In Smith v. Centralia abutting [8] An easement, although an incorporeal owners were permitted to prosecute a suit to right, is an interest in land. Oates v. Town set aside a purported vacation of a street, of Headland, 154 Ala. 503, 45 South. 910; based upon an illegal ordinance.

Pacific Yacht Club v. Sausalito, etc., Co., 98 The respondent Harry Krutz testified that | Cal. 487, 33 Pac. 322; 14 Cyc. 1139. he claimed title to the alley, that he had

The judgment is reversed, with directions never forbidden its use as a public way, I to enter a decree in harmony with the prayer and that "I had no idea of doing anything of the bill. except what my rights are legally.” It is upon this testimony that the respondents

| CROW, O. J., and ELLIS, CHADWICE, contend that the closing of the alley is con

and MAIN, JJ., concur. tingent and remote, and hence that the cause of action fails. This testimony was given at the close of the trial. An issue had

(77 Wash, 700) been joined in which the respondents assert

JOHNS v. COFFEE et al. ed an intention to exclude the appellants (Supreme Court of Washington. Jan. 17. from using the alley. The evidence had then

1914.) conclusively established the status of the

En Banc. On motion for rehearing. Afstrip of land as a public alley. The respond- Armed ents could not then change the issues and de

For former opinion, see 74 Wash, 189, 133 prive the appellants of their right to have | Pac 4. the issue determined upon the testimony. The respondents could have frankly disclaim

PER CURIAM. Upon a rehearing of this ed title to the alley, but this they failed to do.

case by the court en banc, the majority [6] The fact that the respondents Krutz

still adhere to the original opinion as found paid certain taxes and assessments upon the

in 74 Wash. 189, 133 Pac. 4, and for the reastrip of land, while showing their good faith,

sons there given are of the opinion that the does not estop either the city or the appel

judgment should be affirmed. lants from asserting its public character. · Seattle v. Hinckley, 67 Wash. 273, 121 Pac. 444.

(77 Wash. 282) [7] There is another phase of the question upon which the appellants must prevail. As

WAITER C. SIVYER & SONS CO. V. CITY

OF SPOKANE. abutting owners, they may prosecute a suit to quiet title to an easement in the alley, | (Supreme Court of Washington. Jan. 6, 1914.) and to the fee which they hold subject to the MUNICIPAL CORPORATIONS (8 450*) -- STREET easement. Davidson v. Nicholson, 59 Ind. | IMPROVEMENTS – ASSESSMENT DISTRICTS –

STATUTORY PROVISIONS—"BLOCK"-"PLAT411; Standart v. Round Valley Water Co.,

TED PROPERTY''--"UNPLATTED PROPERTY." 77 Cal. 399, 19 Pac. 689; Oates v. Town of In Laws 1911, c. 98, § 13, providing that Headland, 154 Ala. 503, 45 South. 910; 32 the assessment district for a street improve Cyc. 1308; 37 Cyc. 206, 208; Rem. & Bal.

ment shall include all the property between

the termini of the improvement abutting on or Code, & 809; Povah v. Lee, 29 Wash. 108, 69

108, 69 proximate to the street improved to a disPac. 639; Cushing v. Spokane, 45 Wash. tance back from the marginal lines thereof to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indeses

the center line of the blocks abutting on the Department 1. Appeal from Superior street, provided that in any case the distance Court. Spokane County; E. H. Sullivan, back shall be at least 90 feet, or in case of unplatted property the distance back shall be

Judge. the same as that included in the assessment of Proceeding by the City of Spokane for the platted lands immediately adjacent thereto, confirmation of the assessment roll for the the word "block" means the square included

paving of a street, in which the Walter C. by four streets as located by the system of streets prevailing generally in the plat in which

| Sivyer & Sons Company appeared and oban assessment district may be located, the jected. From so much of the order of conwords "platted property" mean land included irmation as affected the property of the by regularly placed intersecting streets, and the term "unplatted property' means lands

objector, the City appeals. Affirmed. not so included, and fractional blocks and pro H. M. Stephens, Wm. E. Richardson, Erduced by interference with the general street scheme must be treated as platted property,

nest E. Sargeant, and Dale D. Drain, all of while land so situated as to be capable of sub

Spokane, for appellant. Hamblen & GÜbert, division into ordinary blocks and fractions by of Spokane, for respondent. the extension through it of streets, so as to preserve the general street scheme, must, until subdivided, be regarded as unplatted land, ELLIS, J. This action arose upon an apand, where land is readily susceptible of sub- peal to the superior court from so much of division into blocks of ordinary size by a mere

an order of the city council of Spokane conextension of streets which have never been laid out, the land is unplatted, and the line of

firming an assessment roll for the paving of an assessment district must not extend back Seventh avenue from Howard street to Monon it further than on the platted property ad roe street as affected the property of the objacent thereto.

jector, Walter C. Sivyer & Sons Company. [Ed. Note.-For other cases, see Municipal

We reproduce from appellant's brief a plat Corporations, Cent. Dig. $8 1073, 1074; Dec. Dig. $ 450.*

of the improvement district which, though For other definitions, see Words and Phras not introduced in evidence, was, in argument, es, vol. 1, p. 809.]

| admitted to be correct.

[graphic][ocr errors][subsumed][ocr errors][ocr errors][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][ocr errors][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][ocr errors][ocr errors][subsumed][ocr errors][ocr errors][subsumed][subsumed][subsumed]

•For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

nue.

or

The shaded portions represent the proper- , from the south end of Wall street to the ty included in the district. The objector's | south end of Post street. Thence the disproperty is in that part of the district north trict extends north along the west line of of Seventh avenue, and comprises the two Post street to a point about halfway between tracts numbered 12 and 13 in small figures. Seventh avenue and Fifth avenue; thence Seventh avenue runs east and west; How- east along what would be the north line of ard and Monroe streets north and south. Sixth avenue, were it extended across obBetween these two streets, Seventh avenue jector's property to the east line of Lincoln is intersected only by Lincoln street, also street; thence south to a point opposite the running north and south, parallel with, and east and west middle line of block 57, thus about 300 feet east of, Monroe street. About including in the district property of the obthe width of an ordinary city block, or 300 jector lying between Post street and Linfeet to the east of, and parallel with, Lin- coln street, not abutting upon, but more than coln street is a narrow street called Post half an ordinary city block distant from the street, which does not extend through to improvement. None of the property between Seventh avenue, but terminates in a cul de Lincoln street and Wall street north of Sevsac about 150 feet north of Seventh ave- enth avenue to Fifth avenue has ever been

About 300 feet east of Post street, and platted or subdivided into lots except by a about 150 feet to the west of Howard street, plat prepared and long used in the county is Wall Street, also running north and assessor's office for convenience in assesssouth to within about 150 feet north of Sev- ments for taxes. The trial court, on an inenth avenue, where, like Post street it ter- spection of the assessment roll, sustained the minates in a cul de sac. The first continu- objections to the roll on the ground that the ous east and west street north of Seventh objector's property could not be included avenue is Fifth avenue, and is over 600 feet, legally within the assessment district. The

a little more than two ordinary city city appeals. blocks, distant from Seventh avenue. Sixth The sole question presented is: Can the avenue, about 300 feet north of Seventh ave. respondent's property be legally included nue, is not a continuous street. It runs from in the district, under the provisions of section Howard street west to an intersection with 13 of the act of 1911 (Laws of 1911, p. 446), Post street, where it terminates on the east which, so far as here material, reads as folside of the objector's property, and, begin- lows: “Except in the cases herein otherning again on the west side of objector's prop-wise specifically provided for, and unless otherty, it runs from Lincoln street west to Mon- erwise provided in the ordinance ordering roe street. Sixth avenue has never been ded- such improvement, such district shall include icated or opened as a public street across all the property between the termini of said the objector's property between Post and Lin improvement abutting upon, adjacent, vicipal coln streets, a distance of about 300 feet. or proximate to the street, avenue, lane, alAll of the territory included in the assess- ley, boulevard, park drive, parkway, public ment district and the environing property place or square proposed to be improved to a was, in 1883, platted as Second addition to distance back from the marginal lines there. Railroad addition to Spokane Falls, now of to the center line of the blocks facing Spokane. The property lying north of Sev- or abutting thereon: Provided, that in any enth avenue, and between Lincoln street on case such distance back shall be at least the west, Wall street and Wall Street ex- ninety (90) feet: And provided further, that tended on the east, and Fifth avenue on the in case of unplatted property, the distance north was never divided into lots and blocks, back shall be the same distance as that in. save that the part included by a line drawn cluded in the assessment of the platted lands parallel to, and about 150 feet north of, Sev. immediately adjacent thereto. All property enth avenue and by Wall street, Fifth ave- included within said limits of such local imnue, and Lincoln street, was designated on provement district shall be considered and the above-mentioned plat as block B. The held to be the property and to be all the strip, 150 feet wide, lying between this tract property specially benefited by such local imand Seventh avenue has never been platted provement, and shall be the property to be into blocks and lots. Seventh avenue south assessed to pay the cost and expense there of this tract has been platted as Hill Park. Of or such part thereof as may be chargeA half block at the easterly end of the as- able against the property specially benefited sessment district immediately north of Sev. by such improvement, which cost and exenth avenue, between Howard street and pense shall be assessed upon all of said Wall street, designated on the plat as block property so benefited in accordance to the 95, and the whole block at the extreme west special benefits conferred on such property end of the district, between Monroe street in proportion to area and distance back and Lincoln street, designated as block 57, from the marginal line of the street, or have been subdivided into lots. The assess- other public way or area improved.”. ment district to the north of Seventh avenue It is clear that, in enacting this law, the was made to include the south half of blocks Legislature had in mind two classes of prop57 and 95, and a strip of about equal width erty, namely, that platted into ordinary city to the south half of these blocks, extending blocks, and usually regarded as platted

« ΠροηγούμενηΣυνέχεια »