Mohr v. Pierce County , 65 Wash. 370 ( 1911 )

Chadwick, J.

— On the 20th day of February, 1890, the then owners of a tract of land bordering on Lake Steilacoom platted it, and filed the plat with the county auditor of Pierce county. The property was designated as Lake Steilacoom Park, and was subdivided into blocks, intersected by streets, alleys, and boulevards. A boulevard known as Lake Boulevard was laid out so that, as it appears on the plat, it is between the land of the appellants and other lands owned by them bordering on the shores of the lake. In the summer of 1890, considerable work was done on the property in the way of clearing out the underbrush, blowing out stumps, and beautifying the tract, and the testimony offered on behalf of the respondents tends to show that a passable roadway was made upon this boulevard. In 1908 the present owners put a fence across the boulevard, and the county commissioners of Pierce county having threatened to tear down this fence, appellants brought this action, praying for an order perpetually enjoining them from interfering with their property rights. From an order denying the relief prayed for, this appeal is prosecuted.

It is the contention of appellants that the boulevard was never opened to the public use, and for that reason the case falls within the provisions of Bal. Code, § 3803, which reads as follows:

“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.”

And to further sustain themselves, appellants cite and rely upon the case of Murphy v. King County, 45 Wash. 587, 88 Pac. 1115. It is unnecessary to review the evidence offered on behalf of the appellants, for, as we find the law to be at the present time, the judgment of the lower court must be affirmed. However convincing the showing and argument of appellants may have otherwise been, the case is controlled by chapter 90, Laws 1909, page 188 (which seems not to have been noticed by court or counsel), wherein § 3803 is amended by the addition of the following proviso:

“Provided, however, that the provisions of this section shall not apply to any highway, street, alley, or other public place dedicated as such in any plat, whether the land included in said plat be within or without the limits of any incorporated city dr town, nor to any land conveyed by deed to the state or to any town, city or county for roads, streets, alleys or other public places.” Rem. & Bal. Code, § 5673.

It will thus be seen that the nonuser statute has no application to the case at bar, and the boulevard having been formally dedicated to the public, it must remain open until vacated by a proper statutory proceeding.

Judgment affirmed.

Dunbar, C. J., Ellis, Morris, and Crow, JJ., concur.