In re West Marginal Way, Seattle, 109 Wash. 116, 186 Pac. 644

      IN RE WEST MARGINAL WAY, SEATTLE. 117
 Dec. 1919          Opinion Per MOUNT, J. of the

property taken, evidence of damages through interference
with the care of property while the road was being
constructed is inadmissible when it does not appear that
such interference would necessarily follow.

Appeal from a judgment of the superior court for
King county, Frater, J., entered March 11, 1919, upon
the verdict of a jury awarding damages in condemnation
proceedings. Affirmed.

Roberts & Skeel (Lee Johnston and L. B. Schwellenbach,
of counsel), for appellant.

Walter F. Meier, Geo. A. Meagher, and Alex J.
Ashen, for respondent.

 118    IN RE WEST MARGINAL WAY, SEATTLE.
                     Opinion Per MOUNT, J.      109 Wash.

county road was within the limits of West Marginal
Way, a jury was called to determine the question of
damages to be awarded to Mrs. Abrahamson. After
the evidence was heard upon that question, the jury
found that the damage to the property of Mrs. Abrahamson
was $7,271.50. The court entered a judgment
upon this verdict in favor of Mrs. Abrahamson. She
has appealed from that judgment.

A large number of errors are assigned in appellant's
brief, but these errors are discussed under
three headings, in substance, as follows:

First: Was there a public road extending through
appellant's property, for the taking of which appellant
was not entitled to compensation?

Second: If so, what was the width of that road?

Third: The exclusion of certain evidence offered
by appellant.

Taking up these questions in order, the record shows
without dispute that, in the year 1874, some fourteen
freeholders within the county of King petitioned the
county commissioners of that county to establish a
county road from Alki Point to connect with a county
road on the west side of the Duwamish river near the
house of one Parmerlee. The county commissioners,
upon a hearing of that petition, granted the same, and
viewers were appointed to view and locate the road.
The same was ordered surveyed. The road was thereupon
viewed and surveyed through the property of
appellant, and the surveyor's report was made to the
county commissioners. Thereafter, on August 3, 1874,
the county commissioners considered the reports of
the surveyor and viewers. The reports were adopted
and the road was ordered opened and declared to be a
county road. Thereafter the road was used by the
general public across appellant's land for a period of
more than thirty years. The evidence shows that the

                IN RE WEST MARGINAL WAY, SEATTLE.      119
 Dec. 1919               Opinion Per MOUNT, J.

portion of the road actually used was from ten to
twelve feet in width. This used road was a winding
one, following through the property of appellant.
There is nothing in the record to show that the county
acquired, by condemnation or purchase, the right of
way through appellant's property; but the record is
clear that, after the road was declared to be a county
road and was opened to public travel, it was traveled
and used by the public generally, and that work was
done upon the road at public expense. It is true that
the used portion of the road was shifted upon several
occasions and for various purposes. At one time during
the life of Mr. Abrahamson, who was then the
owner of the property in question, he petitioned the
county commissioners for a change of a portion of the
road through his property to the eastward of where it
was then used. No action appears to have been taken
by the county commissioners upon this petition for a
change, but it is shown that the used portion of the
road was changed and was thereafter used. We are
satisfied from these facts that the roadway became
a public one, and that, because of the use of the
property by the public for the long period of time, and
work done thereon at public expense, the right to the
roadway was acquired by prescription. Yakima
County v. Conrad, 26 Wash. 155, 66 Pac. 411; Olympia
v. Lemon, 93 Wash. 508, 161 Pac. 363.

Appellant argues that, even though there was a
roadway by prescription across the land of appellant,
it was not within the one hundred feet which the city
now seeks to take. It is true the engineer who made
the drawing which is an exhibit in the case testified
that he could not take the field notes of the original
survey of the sixty-foot road and follow them upon
the ground. His reason was that the witness trees
and marks made by the surveyor upon the ground had

 120    IN RE WEST MARGINAL WAY, SEATTLE.
                     Opinion Per MOUNT, J.      109 Wash.

all been obliterated; but he testified that, by following
the field notes of the original survey, he could lay the
road upon the plat, and he testified therefrom that the
whole of the sixty-foot original roadway was within
the one hundred feet now sought by the city. It is
plain, therefore, that there was evidence upon which
the court could base a finding that the sixty-foot
roadway was within the one hundred feet which the city
was seeking. Appellant strenuously argues that the
width of the roadway which was used by the public
for more than thirty years was not to exceed ten or
twelve feet in width, and that this was the extent of
the width of the road to which the county or the city
was entitled by prescriptive right; and it is argued,
and many authorities are cited to the effect, that a
roadway by prescription is confined to the width of
the road as actually used, and does not extend to a
greater width beyond the width of the road actually
used; but in the case of Olympia v. Lemon, supra, in
considering this question and in referring to the case
of Yakima County v. Conrad, supra, we said, quoting
from the last-named case:

"'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.'"

In this case the county originally declared for a
county road which, under the statute, was required to
be sixty feet in width. The county actually laid out
and surveyed a road sixty feet in width. We think,
under the authorities cited, and the facts, which are
not disputed, that the county acquired by prescriptive

                IN RE WEST MARGINAL WAY, SEATTLE.      121
 Dec. 1919               Opinion Per MOUNT, J.

right the whole of the sixty-foot road, notwithstanding
the fact that but a portion thereof was actually used.
Furthermore, we are of the opinion that, when Mr.
Abrahamson, who was then alive and was the owner
of the property, petitioned the county for a change in
the road, he recognized that the county was claiming
the road as an actually dedicated road. Appellant relies
upon the cases of Megrath v. Nickerson, 24 Wash. 235,
64 Pac. 163; and In re Twenty-Second Avenue,
Southwest, 72 Wash. 99, 129 Pac. 884, to establish the
rule that the county road herein sought to be maintained
for sixty feet in width across appellant's property
never in fact existed. It is true in those cases a
portion of the same road outside of the property of
appellant in this case was under consideration. In the
Megrath case, the owners of the property through
which the road ran never recognized the right of the
county to open the road without taking and paying for
their property. Gates were placed on the road, but
this court held that the use by the county of the lands
there in question was a permissive use, and that the
county had no right to take the lands then sought to
be taken without compensation and without condemnation.
This court, in each of those cases, therefore
held that there had been no lawful road across the
premises then in dispute. But in this case it is shown
that Mr. Abrahamson made no objection to the taking
by the county or the public of the roadway across the
premises now in question and their using the same for
a public way. So that the distinction between this case
and the cases relied upon is that, in this case, there
was an actual user under claim of right and work done
upon the road at county expense by the public; while
in the cases referred to, there was no acquiescence by
the landowners to the county's acquiring the right by
prescription across their premises. We are satisfied,

 122    IN RE WEST MARGINAL WAY, SEATTLE.
                     Opinion Per MOUNT, J.      109 Wash.

therefore, that the county acquired a right by
prescription across the premises in question to a roadway sixty
feet in width.

Appellant argues that the lower court erred in finding
that the county road, being a winding road, should
be laid sixty feet in width within the proposed one hundred-foot
West Marginal Way, because the prescriptive
way acquired by use is but a ten or fifteen
foot winding way and at points touches the outer lines
of the one-hundred-foot West Marginal Way; that the
measurement should be from the center of the used
way, so that a part of the sixty-foot strip would lie
without the bounds of the one-hundred-foot Marginal
Way and a part within. It seems plain that the winding
road which was used by the public was used by
reason of the original roadway which was established
by the county commissioners sixty feet in width. The
road which was actually used was from ten to fifteen
feet in width. In using this road the use was intended
to be of the county roadway. The fact that the used
roadway wound around stumps or buildings was not
an abandonment of the unused portion, but was a use
of the whole roadway established by the county commissioners
when it was declared a public way. This
roadway was all within the boundaries of the one hundred-foot
right of way, and it seems to us plain
that the sixty-foot roadway declared by the commissioners
was the one intended to be used; and since
that roadway was wholly within the one-hundred-foot
right of way, the only part for which appellant was
entitled to compensation was the extra forty feet of
that road as widened.

A number of errors are alleged by appellant upon
the admission of evidence. It is claimed by appellant
that the court erred in refusing the evidence of an

                IN RE WEST MARGINAL WAY, SEATTLE.      123
 Dec. 1919               Opinion Per MOUNT, J.

expert witness who was called to testify upon the part
of respondent in reference to the feasibility of a plan
of removing certain buildings that were upon the one hundred-foot
strip to another part of appellant's property.
The trial court was of the opinion that this witness
was not qualified as an expert upon that question
and he was not permitted to testify. In the case
of Kranzusch v. Trustee Co., 93 Wash. 629, 161 Pac.
492, we said:

"The qualification of a witness to testify as an expert
on a subject requiring peculiar or special knowledge
is largely a matter of discretion with the trial
court, and its ruling thereon will not be reversed
unless there has been a manifest abuse of that
discretion."

We are satisfied there was no abuse of that discretion
in this case. At most, the testimony which this
witness was supposed to give was cumulative. There
was abundant other evidence upon this question. We
think that, even if it was error to exclude the testimony
of this witness, the error was harmless.

Appellant also complains that she was not permitted
to prove that the use of the property would be interfered
with during the time of construction of the road
and she would be damaged on that account. We think
there was no error in this. The sole question for the
jury was the value of the forty feet of property taken
and the damage to that which was not taken. We think
it does not necessarily follow in this case that the
construction of the widened road through the premises
would necessarily interfere with the business to which
the other might be put by appellant.

A number of other errors are assigned upon the
admission of evidence, but we are satisfied these are
not important and that there was no reversible error
therein. In our opinion, appellant had a fair trial.

 124    LOEWE v. OSNER & MEHLHORN.
                     Opinion Per MACKINTOSH, J. 109 Wash.

The judgment is therefore affirmed.

HOLCOMB, C.J., BRIDGES, TOLMAN, and FULLERTON,
JJ., concur.