Rowe v. James, 71 Wash. 267, 128 Pac. 539 (1912).


      [No. 10528. Department One. December 12, 1912.]
GEORGE FRANCIS ROWE et al., Appellants, v. R.E. JAMES
                et al., Respondents. 1

MUNICIPAL CORPORATIONS -STREETS - VACATION - STATUTES - IMPLIED
REPEAL. The act of 1901, Rem. & Bal. Code, SSSS 7840-7843,
providing a complete method for the vacation of streets and
alleys in some respects inconsistent with the earlier law,
repeals by implication Id., SS 7847, of the earlier act.

SAME - OWNERSHIP ON VACATION - STATUTES. The act of 1901, Rem.
& Bal. Code, SS 7842, providing that, upon the vacation of a
street, the fee should belong to the abutting owners, confers no
rights where vested rights were acquired prior to the passage of
the act, in view of SS 4 of the act, Rem. & Bal. Code, SS 7843,
providing that no vested rights shall be affected by the act.

DEDICATION - STREETS - FEE. A city acquires only an easement in
streets dedicated by a plat.

MUNICIPAL CORPORATIONS - STREETS - VACATION - OWNERSHIP OF FEE
- DEDICATION - PLATS. The general rule that abutters own the fee
to the center of the street is controlled by the circumstances;
and where an owner plats land bounded by a street included in the
plat and owns nothing beyond the street, his conveyance of land
abutting on the street carries the fee to the entire street; and
vacation vests title to the entire street in such owner.


1 Reported in 128 Pac. 539.

 268    ROWE v. JAMES.
                     Opinion Per GOSE, J.           71 Wash.

SAME - STREETS - VACATION - RIGHTS. All abutting owner acquires
no rights to the fee of a vacated street by reason of the payment
of assessments for its maintenance and improvement.

TENANCY IN COMMON - ESTOPPEL. One cotenant cannot estop another
by his unauthorized words and acts.
SAME. The fact that two cotenants circulated a petition for the
vacation of a street with the knowledge and consent of another
cotenant did not authorize them to surrender any of his rights in
the property.

ESTOPPEL - REPRESENTATIONS AS TO MATTERS OF LAW - TITLE TO
PROPERTY. Where abutters on one side of the street, owning the
entire fee, induced abutters on the other side, whose signatures
were necessary, to sign a petition for vacation of the street by
falsely representing that upon vacation all the abutters would
take the fee in equal shares, they are estopped to assert their
title to the entire street, where the misrepresentations were
made with knowledge of their falsity, and were relied upon.

Appeal from a judgment of the superior court for King
county, Tallman, J., entered March 14, 1912, upon findings
in favor of the defendants, in an action to quiet title.
Modified.

John W. Roberts and George L. Spirk, for appellants.

Reed & Hardman, for respondents.

GOSE

GOSE, J. - This is an action to quiet title to a strip of
land thirty feet in width, extending from the south line of
East Union street, in the city of Seattle, to the north line
of East Madison street, and known as Old Eleventh avenue,
and being one block in length. The decree awarded to the
plaintiffs the westerly half of the strip of land, and awarded
the remainder to the defendants. The plaintiffs have
appealed, contending that they are the owners of the entire
tract.

The facts which form the basis of the appellants'
contention are these: In 1882 one George Werett, being the owner
of a five-acre tract of laud, platted it as Werett's addition
to the city of Seattle. A street thirty feet in width was
marked on the plat as the eastern boundary of the addition.

                     ROWE v. JAMES.                     269
 Dec. 1912               Opinion Per GOSE, J.

Lit 1, in block 2, of the addition lies parallel to, and abuts
upon, this street on its westerly side, the full length of the
street. A wedge-shaped tract of unplatted land,
terminating at the point of junction of East Union and East
Madison streets, also abuts upon the street on the east side
thereof. Werett owned no property east of the street. On
the 17th day of March, 1911, this street was vacated upon
the petition of all the parties to the action, they being the
only abutting owners. The appellants then were, and for
several years had been, the owners of said lot 1, and the
respondents then owned and still own the unplatted land.
Pending the action, the appellants Jones and wife conveyed
their interest in the property to the appellants Gidner and
wife. The vacated street is the property in controversy.

The court found, that the appellants induced the respondents
to unite in the petition for the vacation of the street
by representing to them that, upon its vacation, the easterly
one-half thereof would attach to and become a part of the
respondents' property, and that the westerly one-half would
attach to and become a part of the appellants' property;
that the respondents, in reliance upon such representations,
signed the petition; that the petition would have been
insufficient without the signatures of the respondents; that the
respondents have changed their position and surrendered
valuable rights as owners of property abutting on the street,
and that the appellants "ought not to be permitted to
assert or claim" ownership of the easterly one-half of the
tract. The court further found that the respondents had
paid assessments on account of the establishment, maintenance,
and improvement of the street prior to its vacation.

The respondents contend, (1) that they became the
owners of the portion of the street awarded to them by
operation of law when the street was vacated, and (2) that the
appellants upon the facts found by the court are estopped
to deny their title.

The first contention is based upon the assumption that the

 270    ROWE v. JAMES.
                     Opinion Per GOSE, J.           71 Wash.

old law, carried into the Code of 1881 as SSSS 2333, 2334, 2335,
and 2336, and carried into Rem. & Bal. Code as SSSS 7844,
7845, 7846, and 7847, is still in force. The first three
sections apply only to towns not incorporated; and SS 2336,
Rem. & Bal. Code, SS 7847 was repealed by the Laws of 1901,
page 175 et seq., Rem. & Bal. Code, SSSS 7840 to 7843
inclusive. These laws all relate to the vacation of streets and
alleys. The law of 1901 respecting the vacation of streets
and alleys in incorporated cities and towns is a complete act
upon the subject and in some essential respects is inconsistent
with the provisions of the old law. Seattle v. Hinckley,
67 Wash. 273, 121 Pac. 444.

They further contend that, under the Laws of 1901, Rem.
& Bal. Code, SS 7842, they became the owners of the easterly
one-half of the tract when the street was vacated. This
view is not sound, as SS 4 of the Laws of 1901, Rem. & Bal.
Code, SS 7843, expressly provides that vested rights shall not
be affected by the act. We have uniformly held that a city
acquires only an easement in a street in consequence of a
dedication. Gifford v. Horton, 54 Wash. 595, 103 Pac. 988;
Schwede v. Hemrich Bros. Brewtrig Co., 29 Wash. 21, 69
Pac. 362; In re Westlake Avenue, 66 Wash. 277, 119 Pac.
798; Norton v. Gross, 52 Wash. 341, 100 Pac. 734.

In the Gifford case, we recognized the general rule that,
in the absence of a governing statute or a reservation in the
grant, the owner of the land on each side of the street owns
the fee to the center of the street, subject only to the
easement in the public. We held, however, that the general rule
may be controlled by the peculiar circumstances of the case.
In that case a street was laid by the dedicators along the
boundary of their land. In view of that fact, we said:

"Having conveyed the upland to the street which marked
the boundary of their land, the presumption is that the
grantee was invested with the fee to the entire street, and
we do not think that the surrounding circumstances
overcome this presumption."

                     ROWE v. JAMES.                     271
 Dec. 1912               Opinion Per GOSE, J.

When the city has surrendered its easement by a vacation
of the street, it has no further interest therein. The fee in
the street remained in Werett after the dedication, and
passed to the appellants as an incident to their acquisition
of the fee in all the abutting property that Werett had
owned. None of the respondents' grantors owned any part
of the street. Their title reached only to its easterly line.
As abutting owners, respondents had the easements of access,
light, and air, but the vacation of the street upon their
petition extinguished these rights and, as their predecessors
in title had never owned any part of the street, they could
convey no part of the fee to the respondents. We think the
correct view is that, when an owner plats land bounded by a
street included in his plat, and owns nothing beyond the
street, and conveys all his land abutting upon the street
without reservation, the purchaser acquires the fee to the
entire street. Gifford v. Horton, supra; In re Robbins, 34
Minn. 99, 24 N.W. 356, 57 Am. Rep. 40; Taylor v. Armstrong,
24 Ark. 102; 37 Cyc. 200. This rule is pointedly
stated in Commissioners of Coffey County v. Venard,
10 Kan. 95, where it is said:

"The vacation of a road does not take any person's
private property. It leaves the property of individuals just
as though no road had ever been established. If a party
owns the land over which the road runs, his rights and
privileges are increased by the vacation of the road, instead of
being diminished. If he does not own the land over which
it runs then of course ho property of his can be taken from
him."

The respondents have directed our attention to Burmeister
v. Howard, 1 Wash. Ter. 207; Norton v. Gross, supra;
Thomas v. Hwnt, 134 Mo. 392, 85 S.W. 581, 32 L.R.A.
857. In the Burmeister case, both parties claimed under a
common grantor who had platted the property, includlng
the alley in controversy, and the court was considering the
effect of the proceedings of the board of trustees had under

 272    ROWE v. JAMES.
                     Opinion Per GOSE, J.           71 Wash.

the old statute, Rem. & Bal. Code, SS 7846. In the Norton
case, we held that, as between the vendor and the vendee, a
deed to specific property carried with it by implication a
quadrangular strip of land abutting upon it, which strip
had formed a part of an alley to the rear of the property
but which had been vacated before the property was
conveyed. In the Thomas case, the vacated avenue was the
eastern boundary of an addition as platted, but the land lying
east of and adjoining the avenue was owned by the proprietors
of the platted addition. The court recognized the rule
that, in the absence of a controlling statute or apt words of
reservation in the deed, where a street is within the dedicator's
land and forms its boundary, the conveyance of an abutting
lot would carry the fee in the street to the opposite boundary
thereof.

There remains to be considered the contention that the
appellants are estopped by their representations to assert
title, and that the payment of assessments for the
establishment and maintenance of the street gave the respondents
equities in the land when the street was vacated. It seems
quite plain that no rights inured to the respondents upon
the vacation of the street in consequence of assessments
contributed to its maintenance and improvement. These
assessments were levied to improve the street as a publlc highway,
and not to improve it as private property.

Coming to the question of estoppel in pais, the record
discloses that the appellants aequlred title to their property in
undivided equal moieties, at one and the same time and
through one and the same instrument. They assert that
this created a joint tenancy, and that the representations
of one joint tenant cannot estop his cotchant. We do not
find it necessary to deeMe whether the appellants are joint
tenants (Rem. & Bal. Code, SS 1344), or tenants in common;
as in either case one cotenant'cannot estop another by his
unauthorized words or acts. This must be so, for as we
have seen, an undivided one-third of the fee in the street

                     ROWE v. JAMES.                     273
 Dec. 1912               Opinion Per GOSE, J.

passed to each of the appellant husbands as an incident to
the acquisition of the abutting property.

The finding of the court that the respondents were
induced to sign the petition by the representations of the
appellants that the easterly half of the street would become the
property of the former when the street should be vacated, is
sustained by the evidence as to the appellants Jones and
Gidner. The appellant Rowe made no such representations,
and had no knowledge that they were made until after the
commencement of the action. He says, that he and his
cotenants decided to take the necessary steps to bring about
the vacation; that he knew that the respondents' signatures
were necessary, but that his cotchants had no authority to
make any representations on his behalf or to surrender any
of his rights. There is no evidence to the contrary. He
had a fee interest in the property, and the mere fact that
his cotenants circulated the petition with his knowledge and
consent did not authorize them to surrender any of his
rights in the property, either directly or indirectly. They
could no more agree that he would surrender a portion of
his land in return for the signatures of the respondents,
than that he would pay an agreed sum of money.

We think, however, that the appellants Jones and Gidner
are estopped by their representations to assert ownership in
the portion of the land awarded to the respondents. The
petition was unavailing until it had been signed by the owners
of more than two-thlrds of the private property abutting
upon the street sought to be vacated. Rem. & Bal. Code,
SS 7840; Smith v. Centralia,
55 Wash. 573, 104 Pac. 797.
This could not be accomplished without the signatures of
the respondents. They testified that they would not have
signed the petition but for the representations of Jones and
Gidner. Relying upon these representations, they surrendered
their easements of access, light, and air in the street.
The basis of all estoppel in pais is that there is one innocent
party and one negligent or wrongdoing party, and the

 274    ROWE v. JAMES.
                     Opinion Per GOSE, J.           71 Wash.

doctrine means that, when the innocent party has been induced
to surrender a valuable right or to change his position tc
his prejudice relying upon the acts or representations of
the negligent or wrongdoing party, then the latter will not
be heard to assert the falsity of his acts or representations
to the prejudice of the former. Carruthers v. Whitney,
56 Wash. 327, 105 Pac. 831, 134 Am. St. 1114; Dickerson v.
Colgrove, 100 U.S. 578.

But counsel for appellants argue, that the representatlcns
were but an expression of the opinion of Jones and Gidner,
upon the legal effect of the vacation; that they were
innocently made, and that they are therefore not estopped to
assert their full legal rights. This argument is fallacious.

"Whatever be the effect of a mistake pure and simple,
there is no doubt that equitable relief, affirmative or
defensive, will be granted when the ignorancb or misapprehension
of a party concerning the legal effect of a transaction in
which he engages, or concerning his own legal rights which
are to be affected, is induced, procured, aided, or
accompanied by inequitable conduct of the other parties. It is
not necessary that such inequitable conduct should be
intentionally misleading, much less that it should be actual
fraud; it is enough that the misconception of the law was
the result of, or even aided or accompanied by, incorrect or
misleading statements, or acts of the other party. When
the mistake of law is pure and simple, the balance held by
justice hangs even; but when the error is accompanied by
any inequitable conduct of the other party, it inclines in
favor of the one who is mistaken. The scope and limitations
of this doctrine may be summed up in the proposition
that a misapprehension of the law by one party, of which
the others are aware at the time of entering into the
transaction, but which they do not rectify, is a sufficient ground
for equitable relief." 2 Pomeroy, Equity Jurisprudence
(3d ed.), par. 847.

A like principle is announced in Sanford v. Royal Ins.
Co., 11 Wash. 653, 40 Pac. 609. But the appellants Jones
and Gidner are not in a position to suggest an innocent error
of law. Jones says that he knew the status of the property

           UNITED IRON WORKS v. HURLEY MASON CO.          275
 Dec. 1912                    Syllabus.

and that he made no representations whatsoever. In the
latter statement he is contradicted by five witnesses. Gidner
says that he stated to the respondents, when the first petition
was presented to the council some four years prior to the
presentation of the successful petition, that, upon vacation,
the owners of the respective abutting tracts would take in
equal shares; that before the presentation of the last petition
he learned that such result would not follow; that he did not
advise the respondents of his error, and that he made no such
representations to them at the time they signed the final
petition. In the latter statement he is opposed by the
testimony of three witnesses. Nor is the contention sound that
one cannot be estopped by his representations to assert his
title to real property. Sadler v. Niesz,
5 Wash. 182, 31 Pac.
630, 1030; Carruthers v. Whitney, supra; Windsor v.
Sarsfield, 66 Wash. 576, 119 Pac. 1112.

The judgment is affirmed as to the appellants Jones and
Gidner; and the case is remanded with directions to modify
the judgment so as to award an undivided one-third of the
easterly fifteen feet of the land to appellants Rowe.

MOUNT, C.J., CHADWICK, CROW, and PARKER, JJ., concur.