508 OLYMPIA v. LEMON.
Opinion Per MAIN, J. 93 Wash.
[No. 13125. Department Two. December 5, 1916.]
THE CITY OF OLYMPIA, Plaintiff, v. MILLARD LEMON et al.,
Appellants, M. E. REED et al., Interveners and
Respondents. «1»
FINDINGS OF FACT - NECESSITY - EQUITABLE ACTIONS.
Where, in eminent domain proceedings to acquire property for a
street, on objections to the assessment roll raising the issue that
the property already belonged to the city, it was stipulated that
the court should determine that question, the action became in
effect an equitable action to quiet title in the city; and
therefore findings of fact were not essential to sustain a judgment
in favor of the city.
MUNICIPAL CORPORATIONS - STREETS - ESTABLISHMENT - PRESCRIPTION -
ADVERSE USE - EXTENT - WIDTH OF STREETS. Where, for a
period of thirty-four years, there had been a well-defined road of
from eight to fourteen feet in width in a city, used by the public
"for miscellaneous purposes," the public is not limited to such
width as was actually used, but is entitled to such as is
reasonably necessary for the easement of travel; hence an adjoining
owner who recognized the public right to the extent of dedicating a
fifteen-foot right of way, cannot thereby confine the public to
that width, or claim damages for the appropriation of a strip
thirty feet in width, where the same appears reasonably necessary,
in view of the statute making county roads from 60 to 30 feet in
width, and in view of a sixty-foot width for adjacent streets and
the northern portion of the street in question.
Appeal from a judgment of the superior court for
Thurston county, Mitchell, J., entered June 22, 1914, upon findings
in favor of the interveners, dismissing proceedings to
condemn property for street purposes, after a trial and hearing
on objections to the assessment roll. Affirmed.
Troy & Sturdevant, for appellants.
Frank C. Owing's, for respondents.
MAIN, J. - The purpose of this action, as originally
instituted, was to condemn for street purposes two certain strips
of land, each thirty feet wide. The city of Olympia, desiring
«1» Reported in 161 Pac. 363.
OLYMPIA v. LEMON. 509
Dec. 1916 Opinion Per MAIN, J.
to extend Jefferson street south from Broadway to 18th
street, a distance of two blocks, brought the action against
the parties who claimed to own the strips of land mentioned.
After the condemnation proceedings had been instituted, the
Casco Company, a corporation which claimed title to the
property by conveyance from the previous owners, consented
to a decree of necessity, and agreed to submit the issue as to
the value of the land taken, and the damages to the land not
taken, to what is referred to as a board of appraisers. As a
result of this agreement, the appraisers made an award in
favor of the Casco Company in the sum of $900. Subsequently
a judgment was entered for this amount. After the
judgment was entered, an assessment roll was prepared,
which assessed the amount of the condemnation judgment
against the adjacent property. Certain persons whose
property was covered by the assessment roll filed objections
thereto, and asserted that the land described in tile
condemnation judgment as belonging to the Casco Company was not
in fact the private property of that company, but was public
property, owned by the city for street purposes. When this
issue was presented, it was stipulated by the parties that the
court in this action should determine the question raised by
the objections to the assessment roll. This was done, with
the result that a judgment was entered which dismissed the
action and decreed that the title to the property sought to
be condemned was vested in the city for street purposes.
From this judgment the appeal is prosecuted.
The first claim of error is the refusal of the trial court to
make and enter findings of fact and conclusions of law. The
appellants contend that an action in condemnation is a law
action, and therefore the failure to make findings and
conclusions is fatal to the judgment. Whether a condemnation
proceeding is legal or equitable in its nature need not here
be determined. By the stipulation referred to, the parties
agreed to submit to the court the question whether the city
had acquired title by prescription to the property sought to
510 OLYMPIA v. LEMON.
Opinion Per MAIN, J. 93 Wash.
be condemned. By the stipulation, the action, in effect,
became one on the part of the city to quiet title to the two
strips of land covered in the condemnation action as originally
instituted. If the action became one to quiet title, it will
hardly be contended that it was not an equitable action. The
action, having become by virtue of the stipulation one in
equity, no findings of fact or conclusions of law were
necessary.
On the merits of the case, after an attentive consideration
of the entire record, we are satisfied that the city, by
prescription, has acquired title to the land in controversy for
street purposes. The evidence shows, without contradiction,
that, for a period of at least thirty-four years prior to the
institution of this action, there was a well-defined road of
from eight to fourteen feet in width, either over the land
involved, or over the fifteen feet immediately adjacent thereto.
This road was used generally by the public, and, as stated by
one of the Casco Company's grantors, "for miscellaneous
purposes." The evidence clearly establishes an actual
general public use, which was uninterrupted and continuous,
under claim of right, for a greater number of years than was
necessary to acquire title by prescription. This right on the
part of the public seems to have been recognized by the Casco
Company's grantors, for while title remained in them, they
filed a plat in which they dedicated a fifteen-foot strip for
street purposes, adjacent to the thirty-foot strips here in
controversy. The question then arises as to the width of the
strip of land acquired by user. In other words, did the user
give to the public the right to only that portion actually
used in travel, or did it give the right to a sufficient width
for street purposes. In Yakima County v. Conrad, 26 Wash. 155,
66 Pac. 411, it was held that after the right to a
highway has been acquired by usage, the public are not limited
to such width as has actually been used, but have a right to
a highway of such width as is reasonably necessary for the
easement of travel. It was there said:
OLYMPIA v. LEMON. 511
Dec. 1916 Opinion Per MAIN, J.
"Under the general laws of this state, at the time the rights
of the public became fixed in this road the maximum width of
county roads was sixty feet, and the minimum width thirty
feet. This is a circumstance that the court could take into
consideration in fixing the width of the road. After the
right to a highway has been acquired by usage, the public
are not limited to such width as has actually been used. The
right acquired by prescription and use carries with it such
width as is reasonably necessary for the public easement of
travel, and the width must be determined from a
consideration of the facts and circumstances peculiar to the case.
Whatever may be the width in any particular case, the
easement, when acquired by user, cannot be limited to the actual
beaten path. It is generally a question of fact to be
determined under the circumstances of each particular case,
and the easement may be as broad as the public require for
passing as well as traveling in one direction."
See, also, Whitesides v. Green, 13 Utah 341, 44 Pac.
57 Am. St. 740; Elliott, Roads & Streets (2d ed.), SS 174, and
cases cited.
In view of this rule, and taking into consideration the
width of the northern portion of Jefferson street, as well as
the width of the adjacent streets, we conclude that the thirty
feet involved in this action was acquired by usage for the
exigencies of public travel.
The judgment is affirmed.
MORRIS, C.J., PARKER, and HOLCOMB, JJ., concur.