Opinion
No. 53119-1-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-31009-5. Judgment or order under review. Date filed: 09/19/2003. Judge signing: Hon. Jay V White.
Counsel for Appellant(s), Daryl Allan Deutsch, Attorney at Law, 3 Lake Bellevue Dr Ste 100, Bellevue, WA 98005-2440.
Counsel for Respondent(s), Susan Delanty Jones, Attorney at Law, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.
Athan Emmanuel Tramountanas, Preston Gates Ellis LLP, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.
In 1889, after receiving a grant of federal land, the King County Board of County Commissioners properly ordered the establishment of South 288th Street pursuant to the 1881 Code of Washington. The street became a part of the City of Federal Way. South 288th Street was established for a proper purpose under federal law. There is no evidence to rebut the presumption that the road was timely opened at its full width of 40 feet. Moreover, documents in the chain of title and surveys completed before South 288th Associates purchased the property in issue indicate that Associates is not a bona fide purchaser because it had or should have had actual and constructive notice of the 40-foot right-of-way for the street. The decision of the trial court on summary judgment is affirmed.
FACTS
South 288th Street Associates (Associates) is a limited partnership that owns a parcel of land located at the southwest corner of the intersection of Pacific Highway South and South 288th Street in Federal Way. The property is improved with a commercial building constructed in 1976. Associates bought the property in 1983. The parcel is a portion of property transferred in 1891 by the United States to Associates remote predecessor.
The City of Federal Way claims the right-of-way for South 288th Street is a full 40 feet wide. Associates claims the right-of-way extends no further than the south line of the road as actually improved. The 20-foot area in between is the disputed property. The property has been improved with a parking lot and some landscaping.
No deed or easement was ever recorded with the Office of the King County Auditor; however, the right-of-way was established by a petition to the King County Board of County Commissioners (commissioners) in 1889. The commissioners established the road by order in its record, stating:
[It] is ordered that said plat and survey be and the same are hereby accepted and approved, and the County Auditor is hereby directed to record the same in the road book of the County and from hence forth said road shall be declared to be a County Road of this width of forty.
The City sought a partial summary judgment. The trial court granted the City's motion, holding as a matter of law that South 288th Street was properly established as a county road in 1889 pursuant to the petition process then in effect. The court determined the City has an existing 40-foot right-of-way. The trial court also held that Associates had constructive, if not actual notice, of the right-of-way. Their deed specifically excepted that portion lying within South 288th Street, which is inquiry notice at a minimum.
Associates appeals.
ANALYSIS
In reviewing a grant of summary judgment, this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). Where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment should be granted. LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027 (1989). This court will consider only evidence and issues called to the attention of the trial court. RAP 9.12.
The commissioners properly ordered the establishment of South 288th Street pursuant to the 1881 Code of Washington. The Code provided that a board of county commissioners could establish a road through the petition process if the commissioners found a number of prerequisites, all of which were met here, which are not disputed by Associates. Under the Code, once the commissioners made the necessary findings and ordered that the plat and survey be recorded in the county road book, the road would be considered a county road. After making its necessary findings and ordering the establishment of South 288th Street, as set forth above, the county commissioners ordered the county auditor to furnish the district supervisor with a certified copy of the order establishing the road so that the road would be opened:
Code of 1881, ch. CCXXIX, sec. 2986.
See Code of 1881 at sec. 2974.
It was further ordered that the County Auditor be directed to furnish the supervisor of the district through which said road runs with a certified copy of this order and action of the Board and the said supervisor proceed to open the road according to law.
Associates does not dispute the record but argues that for the order to be valid it needed to be signed by the county commissioners. But there is no such requirement in the Code. Further, even if a signature requirement existed, the 40-foot right-of-way created for South 288th Street is still valid because the subsequent use of the road establishes the right-of-way as set forth from any order in a proceeding even if later deemed defective.
Upper v. Lowell, 7 Wash. 460, 461, 35 P. 363 (1893) (quoting Elliott, Roads and Streets at 136).
Associates argues that even if the 1889 unsigned order established the road, the road was vacated because it was not opened within five years. Under the "non-user" statute, RCW 36.87.090, a road is vacated if it is not opened for public use within five years of the order establishing the road and the authority granted for opening it is vacated and barred by the lapse of time. The issue here is not the fact of the road, but its width. Associates arguments regarding unopened right of ways are simply inappropriate on these facts. Where the commissioners order a road to be opened at a certain width, the order is evidence that a road was actually opened at that width. Because the commissioners had authority to establish the road, and records exist showing that the commissioners did in fact establish the road, it must be presumed that the road was laid out to the minimum legal width.
See Goedecke v. Viking Inv. Corp., 70 Wn.2d 504, 509-10, 424 P.2d 307 (1967).
39A, C.J.S. Highways § 78, p. 580-81 (2003) (In the absence of evidence to the contrary, the presumption is that the actual location of the road was correct, that it was laid out to the minimum legal width, and that the road was substantially where it was located.) According to the Code of 1881, the minimum legal width was to be 60 feet, unless the county commissioners determined otherwise. Here, the commissioners' order determined that South 288th Street was to be established at 40 feet wide.
Next, Associates argues it is a bona fide purchaser of the property with an interest superior to the City because it did not have actual or constructive notice of the alleged right-of-way. The evidence does not support Associates' claim. An entity is not entitled to bona fide purchaser status if it had notice of a superior interest. Whether Associates was a bona fide purchaser is generally a question of mixed law and fact. "A bona fide purchaser for value is one who without notice of another's claim of right to, or equity in, the property prior to his acquisition of title, has paid the vendor a valuable consideration." The notice need not be actual, nor amount to full knowledge.
See Casa del Rey v. Hart, 110 Wn.2d 65, 70-71, 750 P.2d 261 (1988); Miebach v. Colarsurdo, 102 Wn.2d 170, 177, 685 P.2d 1074 (1984).
Hudesman v. Foley, 73 Wn.2d 880, 889-91, 441 P.2d 532 (1968).
Glaser v. Holdorf, 56 Wn.2d 204, 209, 352 P.2d 212 (1960).
Glaser, 56 Wn.2d at 209.
"It is a well-settled rule that where a purchaser has knowledge or information of facts which are sufficient to put an ordinary prudent man upon inquiry, and the inquiry, if followed with reasonable diligence, would lead to the discovery of defects in the title or of equitable rights of others affecting the property in question, the purchaser will be held chargeable with knowledge thereof and will not be heard to say that he did not actually know of them. In other words, knowledge of facts sufficient to excite inquiry is constructive notice of all that the inquiry would have disclosed."
Miebach, 102 Wn.2d at 175-76 (quoting Peterson v. Weist, 48 Wash. 339, 341, 93 P. 519 (1908)); see also 2 J. Pomeroy, Equity sec.605 (5th ed. 1941).
Here, Associates was on notice of the City's right-of-way because recorded documents show the right-of-way for South 288th Street as 40 feet wide, extending 20 feet onto what Associates now claims is its property. Associates' predecessor in interest obtained a survey recorded in 1976, before Associates purchased in 1983. This survey clearly shows the right-of-way. An additional recorded document refers to the right-of-way as extending 20 feet south from the north boundary line onto Associates' property. This document was the grant of property by one of Associates' predecessors to the state of Washington for the widening of Pacific Highway South. This document uses South 288th Street as a point of reference and includes the additional 20 feet onto Associates' property.
These documents reflect the extent of the right-of-way and Associates cannot rely on the absence of a recorded deed, while ignoring other recorded documents inconsistent with Associates' claim of a narrower right-of-way.
Associates relies on the Supreme Court's decision in Ellingsen v. Franklin County. But as noted above the facts in Ellingsen are distinguishable. In Ellingsen no road existed at the time the owners purchased their property and thus there were no recorded documents evidencing the road. Further, the recording statute in effect in 1889, when South 288th Street was established, did not require the commissioners' order to be recorded in the Auditor's office, especially when the order did not apply to documents that were not deeds or mortgages. The Court in Ellingsen specifically did not reach the issue of the non-recording where it was not a deed or mortgage because the appellant there did not assert the order was not a deed, as the City asserts here.
55 Wn. App. 532, 778 P.2d 1072 (1989), review granted, 113 Wn.2d 1034, 785 P.2d 826 (1990), reversed, 117 Wn.2d 24, 810 P.2d 910 (1991).
Code of 1881 at sec. 2314.
Even if we were to hold that Associates did not have actual notice, the facts known establishes constructive notice. When Associates purchased the property South 288th Street was specifically excluded from the property's legal description. Inquiry should have been made at the time because it is typical that a right-of-way of a public road is larger than that actually paved. "It is a matter of common knowledge that the traveled portion of [very] few county roads is 60 feet in width. The legislative intent is plain that the right-of-way shall be greater in width than the actual road."
Shotwell v. Transamerica Title Ins. Co., 91 Wn.2d 161, 171-72, 588 P.2d 208 (1978) (Wright, C.J., dissenting). (The issue in Shotwell was contract interpretation rather than road establishment. The Court acknowledged the existence of the right-of-way and sought to determine only if it was excluded from the title insurance policy.)
Even the 1976 recorded survey of Associates' property, showing the full extent of the right-of-way, states there is no street dedication of record. The title insurance policy also states this. However, it is difficult to ignore the fact that the road was right there. The fact that there was no dedication or deed of record should have prompted further inquiry. Associates had actual or constructive notice of the City's interest, and thus Associates is not a bona fide purchaser.
Associates also claims King County never acquired any road right-of-way under sec. 2477 of the United States Code, because the commissioners did not expressly accept the federal government's grant of property for county roads. Although the commissioners' order establishing a road did not mention or accept a sec. 2477 grant of property, a sec. 2477 right-of-way comes into existence automatically when a public highway is established in accordance with state law.
See Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 250 (9th Cir. 1974).
Under Washington law, the federal government's grant of land for county roads becomes effective as soon as the road is established by the county:
The net result of our decisions, therefore, is that the United States statute takes effect as a grant only when the res comes into being, that is, when the road has been established on petition as prescribed by our statute, or by use for the period required for prescription prior to the attaching of any adverse rights upon the public lands over which it passes.
Stofferan v. Okanogan Cy., 76 Wash. 265, 274, 136 P. 484 (1913).
Therefore, when South 288th Street was established over the federal government's property by petition and order of the commission in 1889, sec. 2477's grant became effective.
Associates also claims the trial court erred by failing to strike portions of the declaration of the City's expert in support of its motion. We disagree. Trial courts have broad discretion in ruling on evidentiary matters and will not be overturned on appeal absent a manifest abuse of discretion. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. The rule creates a low threshold, as even minimally relevant evidence is admissible absent some other reason to exclude it.
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997) (citing Industrial Indem. Co. v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520 (1990).
ER 401.
State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Further, timely motions to strike on specific grounds must necessarily be made on the record for this court to determine on review; otherwise, the failure to make such a motion waives any alleged deficiency.
See Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 463, 909 P.2d 291 (1996).
A review of the challenged statements in the declaration of Timothy Wickham, the City's expert, indicates the trial court did not abuse its discretion. The statements are either relevant, or a motion to strike was not properly brought before the trial court or is not in evidence in the record before this court.
The trial court indicated it would consider Wickham's declarations, especially the second one, but only in light of the declarations filed by the Associates, specifically the second declaration of Dale Oaks. We find the trial court did not abuse its discretion in denying any motion to strike portions of Wickham's declarations.
The orders on partial summary judgment are affirmed.
APPELWICK, J., and COLEMAN, JJ., Concur.