Fouts v. City of New Whatcom , 14 Wash. 49 ( 1896 )

The opinion of the court was delivered by

Scott, J.

This action involves the right to a strip of land which the plaintiff claims to own as a part of an adjoining tract, while the defendants claim that it is, a street. Judgment was rendered for the plaintiff. A number of questions have been submitted for our consideration, but we find it. necessary to examine only one of them. I.t appears that some years ago, and sometime after the plaintiff purchased the tract which she claims included the tract in controversy, and before the defendant town was incorporated as a city, she applied to the county commissioners of said county to vacate the alleged street covering the tract in dispute and that her petition was granted, whereupon she enclosed the same, and has been in possession thereof subsequently. Appellants contend that the proceedings to vacate said street were invalid on the ground that it does not appear from the records that notice was given of the making of said application as required by law, and that the court erred in admitting parol proof to establish the fact that such notice was given, and also of the petition. We do not think this position is well taken. The proof offered in no sense contradicted the records, for the records were silent as to the giving of the notice. It showed the filing of the petition, and the fact that one Utter appeared, and contested the granting of the same, and that an adjournment was taken to a subsequent term, when it was taken up for consideration and granted. The proof of the petition was immaterial as the record showed what it was for. Begularly, proof of the giving of the required notice should have been preserved at the time and made a matter of record, but the statute does not in terms require it to be done, and any competent proof was admissible. Seattle v. Doran, 5 Wash. 482 (32 Pac. 105, 1002).

Further contention is made by appellant that the proof is insufficient to establish the giving of such notice, but this is not well founded. Direct proof of the posting of notices as required by the statutes was made by the plaintiff by the testimony of the person who posted them, and the only contradictory proof offered was by one of the interested parties who appeared to contest the granting of the petition, and this was simply to the effect that he had seen no such notices, and would have been likely to have seen them if the same had been posted as claimed. It does not appear, however, that this party, who appeared and resisted the petition made any objection thereto at the time on the ground that notice had not been given as required by law, and we think the proof was sufficient to warrant the court in finding that the required notice had in fact been given, and the judgment is affirmed.

Dunbar, Gordon and Anders, JJ., concur. Hoyt, C. J., dissents.