Olson Land Co. v. City of Seattle , 1913 Wash. LEXIS 1796 ( 1913 )

Gose, J.

(dissenting) — The tract of land in controversy extends over “a very abrupt bluff” about twelve feet in height, to the line of ordinary high tide. Since the filing of the plat, the respondent and its predecessor in title have at all times had the uninterrupted possession of the property. No public money has been expended upon it and it has never been used by the public. The plat shows that at all other points there is a strip of upland north of the north fine of Alki avenue. The tract has been treated as private property for more than twenty years following the filing of the plat. As I read the plat, it is ambiguous as to this property. “An intention to dedicate will not be presumed and a clear intention must appear.” Columbia & Puget Sound R. Co. v. Seattle, 33 Wash. 513, 74 Pac. 670.

An intention to dedicate the strip of land in controversy is not clearly apparent from the plat of dedication. The intention of the dedicators is obscure, and in such cases parol evidence is admissible to prove their intention. The evidence submitted upon the question shows conclusively that there was no intention to dedicate the tract as a street; on the contrary, the evidence is that the owners intended to reserve it as private property. This is the spoken testimony, and the conduct both of the dedicators and the public, since the filing of the plat, speak to the same effect. Hence we have the positive spoken words of one of the dedicators, aided by both contemporaneous and subsequent interpretation covering a period of twenty years.

Moreover, since the filing of the plat, Alki avenue, aside from this strip, has been used by the public. The strip in controversy has never been so used. We think that its situation and topography are such as to establish a vacation by nonuser. Rem. & Bal. Code, § 5673 (P. C. 44 § 83) ; Murphy v. King County, 45 Wash 587, 88 Pac. 1115. Counsel for the appellant criticise the Murphy case, but I think it announces a sound rule of interpretation.

For the reasons stated, I think the judgment should be affirmed. I therefore dissent.

Chadwick, J., concurs with Gose, J.