Howell v. King County , 16 Wash. 2d 557 ( 1943 )

¹ Reported in 134 P.2d 80. Plaintiff brought this action to set aside an order of the board of commissioners of King county vacating a part of Hume avenue in the plat of Kenwood park, and to enjoin the defendants Sandell from occupying and obstructing the vacated strip. From a decree granting plaintiff the relief sought, defendants appeal.

Appellants own the lots abutting on the west side of the vacated strip, which is the west half of Hume avenue — the east half having been previously vacated. Respondent is the owner of property abutting on the south end of the vacated strip.

The appeal presents two questions: (1) whether the order vacating the strip was valid; and (2) whether vacation of Hume avenue was effected by abandonment under the provisions of § 32 of chapter XIX of the Laws of 1890, p. 603, which provides:

"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."

In view of the conclusion we have reached upon the second question, we shall not discuss the first.

[1, 2] In 1907, this court held that streets dedicated in platted tracts of land outside of cities and towns came within the purview of the statute (§ 32, chapter XIX, Laws of 1890, p. 603). Murphy v. King County, 45 Wash. 587, 88 P. 1115.

Now, Kenwood park was platted and the streets dedicated in December, 1891, and it is not within any incorporated city or town. The evidence is conclusive that Hume avenue remained "unopened for public use for the space of five years" after dedication, which constituted the "authority granted for opening the same." Tamblin v. Crowley, 99 Wash. 133, 168 P. 982. By the express terms of the statute, the street was therefore vacated in December, 1896.

Respondent challenges this view of the situation upon the strength of a proviso, in amendment of the statute, contained in § 1, chapter 90, Laws of 1909, p. 188. The proviso, doubtless, was added to meet exigencies created by the court's decision in Murphy v. King County, supra, for it excluded from the operation of the act of 1890 "any . . . street . . . dedicated . . . in any plat . . ." Nevertheless, the court subsequently held that the statute effected a vacation of streets in platted tracts which had remained unopened for public use for a space of five years prior to 1909. Tamblin v. Crowley, supra. So, we are constrained to hold that the appellants Sandell are the owners of the vacated portion of Hume avenue in controversy by virtue of their ownership of the lots abutting it, freed from the public easement created by the plat and dedication of Kenwood park.

[3] It does not follow, however, that the vacated strip is not servient to an easement for the use and benefit of the property owned by respondent. It abuts the south end of the vacated strip. There is no other avenue of ingress and egress to her property. For more than twenty years, she and her predecessors in interest have used the vacated strip in controversy in getting in and out. A road, traversable by motor vehicles, has existed along the easterly margin of the vacated strip for that length of time.

This court has held that, under such circumstances as we have here, though the public easement is lost, the private easement persists. Van Buren v. Trumbull, 92 Wash. 691, 159 P. 891, L.R.A. 1917A, 1120. This holding is based upon the principle that, since the dedicator of a plat could not defeat a grantee's right to an easement in the street upon which his land abuts, common grantees from him cannot, as among themselves, question the right of ingress and egress over the street as shown on the plat. Of course, the private easement may be lost by adverse possession. Tamblin v. Crowley, supra;Lewis v. Seattle, 174 Wash. 219, 24 P.2d 427,27 P.2d 1119. But we have no such element in this case.

The cause is remanded, with directions to enter a decree declaring the strip in controversy vacated, subject, however, to a private easement for the use and benefit of the property owned by respondent abutting on the south — the extent of the easement to correspond with the roadway which has been used by her and her predecessors in interest. No costs will be allowed on appeal.

SIMPSON, C.J., BEALS, ROBINSON, STEINERT, JEFFERS, and GRADY, JJ., concur.