
    [No. 11550.
    Department Two.
    April 28, 1914.]
    W. C. Brokaw et al., Respondents, v. The Town of Stanwood, Appellant.
      
    
    Highways — Vacation — Abandonment — Burden of Proof — Evidence — Sufficiency. The burden of showing that a dedicated street in an unincorporated town was vacated by remaining unopened for the space of five years, as provided in Ballinger’s Code, § 3803, is upon the party resting claims upon such fact; ana the mere fact that there was no public travel upon the northerly half of such a street does not show that the street was unopened for public use.
    Same — Prescriptive Rights — Constructive Possession. If a highway is physically open to the free use of the public, the public’s constructive possession is sufficient to protect its acquired paper title.
    Municipal Corporations — Streets—Abandonment — Vacation— Statutes — Application. Ballinger’s Code, § 3803, providing that any road which remains unopened for public use for the space of five years shall be vacated, has no application to streets in cities and towns; and the incorporation of a town exempts from the operation of the statute all roads within the limits that were not vacated at the time of the incorporation.
    Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered June 11, 1913, upon findings in favor of the plaintiff, in an action for an injunction.
    Reversed.
    
      Joseph H. Smith, for appellant.
    
      Geo. M. Mitchell and W. P. Bell, for respondents.
    
      
      Reported in 140 Pac. 358.
    
   Parker, J.

The plaintiffs are in possession of, and claim title to, a strip of land which the town of Stanwood, in Snohomish county, threatens to take possession of and improve as a portion of a public street. The plaintiffs commenced this action in the superior court for that county, seeking to enjoin the town from so doing. A trial was had, resulting in judgment and decree in favor of the plaintiffs as prayed for, from which the town has appealed. The questions presented are: Has the strip involved ceased to be a part of an existing public street, the street having at one time been dedicated to such use so as to include the strip? and have respondents acquired title by adverse possession as against the town?

The controlling facts are not in dispute, and may be summarized as follows: Stockbridge’s Fourth addition to the town of Stanwood was surveyed and platted by the owners of the land covered thereby into lots, blocks, and streets, the latter being regularly dedicated to public use as such, and the plat duly recorded in the office of the auditor of Snohomish county on July 1, 1891. Block 5 of the addition, as shown upon the plat, is bounded on the west by Union street, and on the south by Rainier street. In October, 1902, the respondents became the owners of lots 1 to 7, inclusive, in block 5, being the westerly 280 feet of that block. Wé infer from the record, though it is not clear, that the title then acquired by respondents was by conveyance from the original plattors and dedicators, describing the land conveyed by lot and block numbers, and name of the plat. Immediately thereafter, respondents took possession of the strip of land here in controversy, being a strip 16% feet wide and 280 feet long, lying immediately to the south of, and adjoining their lots, which strip lies within the boundaries of Rainier street as platted and dedicated, occupying somewhat less than the northerly half of that street. Respondents have, ever since then, had actual, physical possession of the strip, claiming to be the owners thereof as against all the world. There has never been any public travel upon Rainier street, nor has there ever been any public money expended in the improvement thereof. Whether or not Rainier street was physically enclosed or obstructed in any way, so as to prevent use thereof by the public by the usual means of travel upon public highways, during any portion of the period from its original platting and dedication in 1891 to the taking possession of this portion thereof by the respondents in 1902, we are left entirely without information, so far as this record is concerned. And, since the record before us purports to contain all the facts brought before the trial court, we must assume that no evidence whatever was there presented upon that question. The town of Stanwood was incorporated in October, 1903, about one year after respondents took possession of the strip, since which time the addition has been within the corporate limits of the town. Prior to that time, the addition was not within the corporate limits of any city or town. Respondents’ claim of title may be regarded as resting upon two grounds, which we will notice in order.

Respondents claim title upon the theory that Rainier street was vacated and the strip in controversy thereby rendered a part of their adjoining lots before they acquired title to the lots and took possession of the strip. This claim is rested upon the assumption that the vacation was accomplished by Rainier street remaining “unopened for public use” for a period of more than five years after its platting and dedication, within the meaning of § 32, Laws of 1890, p. 603; Ballinger’s Code, § 3803, in force prior to 1909, reading as follows :

“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.”

The real question in this branch of the case is: Was Rainier street, in fact, “unopened for public use” for a period of five years following its dedication, and prior to respondents’ taking possession of the strip here involved? Our attention is directed to Murphy v. King County, 45 Wash. 587, 88 Pac. 1115, and Cheney v. King County, 72 Wash. 490, 130 Pac. 893, which are principally relied upon by counsel for respondents. In the Murphy case, the court stated, at page 590, that “the streets were covered with a heavy growth of timber and underbrush and had never been open to public travel.” There was, apparently, in that case, no controversy as to that fact, the real question being as to whether dedicated streets upon a plat made by owners of land outside of the corporate limits of any city or town constituted such streets county roads, within the meaning of the Law of 1890, above quoted. The court there simply assumed that the streets had remained unopened for public use for more than five years following their dedication, as to which question there seems to have been no controversy, and then gave its consideration to the real question in the case. In the Cheney case, there was evidence tending to affirmatively show that the street involved was, in fact, not physically open to public use, that is, that it was not physically capable of being used by the usual means of travel upon public highways. The paths there mentioned did not proceed along the street in any measureable degree within the side lines of the platted street. The street was held to have remained unopened for public use for more than five -years following its dedication, because there was evidence affirmatively so showing that to be a physical fact. In Taylor v. Howell-Hill Mill Co., 74 Wash. 66, 132 Pac. 726, it is assumed, rather than decided as a controverted fact, that the street was never opened to public use.

In the case before us, we have no evidence whatever that Rainier street was unopened for public use during any portion of the period from the time of its dedication in 1891 to the taking possession of this portion thereof by respondents in 1902. For aught that appears in this record, and we are to remember that all of the evidence presented to the trial court is before us, Rainier street, along in front of respondents’ lots, may have, during this entire period, been actually physically open for public use, unobstructed, unenclosed and, by nature, well suited for ordinary travel by such means as are in common use upon public highways. Shall we presume to the contrary, in the total absence of proof upon that question? We are of the opinion that we should not do so, and that the burden of showing that such a street has remained unopened for public use for the period named in the statute should be upon those who rest their claims upon such a fact. Nór do we think that the fact that there was no public travel upon the street during the period from its dedication to respondents’ taking possession thereof argues that it was unopened for public use during that period. The public is not, under all circumstances, obliged to take physical possession of public highways whether they have been acquired by dedication or otherwise, in order to preserve its rights therein. If a highway is, in fact, physically open to the free use of the public as a highway, we think the public’s constructive possession thereof is sufficient to protect its acquired paper title thereto. It is not so much a question of the public being in actual physical possession of the highway as it is a question of someone else being in possession thereof, claiming adverse to the public. We have no evidence here whatever, as we have noticed, indicating that any such claim was ever asserted during the eleven-year period following the dedication of this highway up to the time respondents took possession of the portion thereof here involved.

We are of the opinion that, at the time respondents took possession of this strip of land, Rainier street has not been shown to have been vacated in the manner claimed, and that the public’s paper title thereto being perfect at all times, the burden whs on respondents to show a better title. It might well be argued, from the facts shown in this record and the fair inferences to be drawn therefrom, that the conveyance of these lots by the original dedicators of this street and the plattors of this addition in 1902 describing them by lot and block numbers and the name of the addition, was, in substance, a rededication of this very street at the time. 13 Cyc. 455. Upon this interesting question, however, we express no opinion.

As to respondents’ adverse possession, little need be said,' in view of the conclusions we have reached 6n the question of the claimed vacation of Rainier street prior to the time their adverse possession commenced. Having reached the conclusion that the street was not shown to be vacated at that time, it is manifest that respondents’ adverse possession can avail them nothing here. We have noticed that the town of Stan-wood became incorporated in 1903, only one year following the commencement of respondents’ adverse possession of the strip in controversy. That incorporation brought the street within the corporate limits of the town, thereby exempting it from the further operation of the law of 1890 above quoted. It was, thereafter, no longer subject to vacation or to being lost to the public by the operation of that statute, since that statute had no application to streets within cities and towns. West Seattle v. West Seattle Land and Imp. Co., 38 Wash. 359, 80 Pac. 549; Murphy v. King County, 45 Wash. 587, 88 Pac. 1115.

We conclude that the judgment and decree of the trial court must be reversed upon the ground that Rainier street, in front of respondents’ lots, is still an existing public •street.

It is so ordered.

Crow, C. J., Fullerton, Morris, and Mount, JJ., concur.  