Albee v. Town of Yarrow Point , 74 Wash. 2d 453 ( 1968 )

Hamilton, J.

(concurring in part and dissenting in part) —I concur in the result of the majority opinion insofar as it holds that Haddin Way, as a dedicated public street easement, extends out and over the shorelands uncovered by the lowering of Lake Washington in 1913. The underlying fee title of the extended easement thus rests with the abutting owners as it does with the ordinary street easement. Motoramp Garage Co. v. Tacoma, 136 Wash. 589, 241 Pac. 16, 42 A.L.R. 886 (1925).

I cannot agree, however, with any implication that might be drawn from the majority opinion, or the trial court’s findings and conclusions, to the effect that the conversion of the easement’s ending to a Coney Island type recreational area, complete with bathhouses, restrooms, concession stands and/or a marina, constitutes a proper or permissible secondary use of the street easement. While I understand and appreciate that the city does not presently contemplate such an elaborate undertaking, nevertheless, as time goes by and the pressures of population mount it is possible and probable that gradually such an inconsistent use of the easement could develop.

In my view, the street was dedicated for the purpose of providing access to navigation on the lake—it was not dedicated for the purpose of providing a public recreation area. As abutting owners, plaintiffs are entitled to restrain improper uses of the street easement, at least until they can be properly compensated for the proposed additional servitude, and they should not be made to wait until the improper uses become an established fact. Reed v. Seattle, 124 Wash. 185, 213 Pac. 923, 29 A.L.R. 446 (1923). Neither, for that matter, should the city be left to engage in, and may-haps undertake, extensive planning and expensive construction only to find out later that the end result amounts to an inconsistent use of the easement and possibly a use not subject to acquisition by condemnation. Reed v. Seattle, supra.

Accordingly, I would restrain the city from proceeding beyond the development presently existing—which I understand to be a clearing of the street end and the addition of a stairway and concrete slab together with, possibly, a small dock—until such time as the city acquires, by eminent domain or otherwise, the right to impose additional servitudes upon the easement.

Donworth, J. Pro Tern., concurs with Hamilton, J.