Barney M. Yorkston, Jr. & Carollyn D. Yorkston, Apps./x-resps. v. Whatcom County, Resp./x-app. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BARNEY M. YORKSTON, JR. and
CAROLLYN D. YORKSTON, in their DIVISION ONE
individual and marital estate, and as
representatives of a class, No. 78530-3-I
Appellants/Cross-Respondents, PUBLISHED OPINION
V.
WHATCOM COUNTY, a municipal
entity,
FILED: January 21, 2020
Respondent/Cross-Appellant.
DWYER, J. — Barney Yorkston and his wife, Carollyn Yorkston, brought
this class action seeking a declaratory judgment, quiet title, and injunctive relief
against Whatcom County (the County), asserting that a county road abutting their
property had a right-of-way (ROW) 30 feet wide, and not 60 feet wide as had
been the County’s stated position for nearly a century. The trial court concluded
that the ROW was 60 feet wide. Yorkston appeals, asserting that a procedural
irregularity in the 1884 county commission process culminating in its order
designating the road meant that the 30-foot ROW of a preexisting road was
retained. We affirm.
The earliest recorded effort to designate a road in the Birch Bay area of
the County took place on February 14, 1876, well before statehood, when a
No. 78530-3-1/2
group of landowners petitioned the County to authorize creation of a private road.
On the same day, a viewer’s report was filed and the private road was declared
and recorded by the county. This road ran directly north from the halfway point
between Sections 31 and 32, Township 40 North, Range 1 East for a quarter
mile before turning due west and running for one mile to reach Birch Bay. The
road, which would later be designated as Road 46, occupied a ROW that was 30
feet wide. However, it was not surveyed or platted at this time.
The following year, on November 8, 1877, area landowners presented a
petition for the creation of a public road to run from the west line of Section 25,
Township 40 North, Range 1 West, westerly along the shoreline of Birch Bay to
the line between Sections 23 and 24. There, the road turned due north to reach
Drayton Harbor and ran along the shoreline to the far end of the Semiahmoo
Spit. This road also occupied a 30-foot-wide ROW for its entire length. A
viewer’s report was provided for this road on February 6, 1878, and the route
was ordered established as Road 22 on August 6, 1878, by the County’s Board
of Commissioners (Commission).
Both the Road 46 and Road 22 petitions had been signed by B.H. Bruns.
Bruns acquired land from the United States government in 1871 and owned over
1,000 acres in the area at the time, including the southeast and southwest
quarters of Section 24, through which Road 22 ran. Bruns’s property originally
included land in Section 25 that he conveyed to Lawrence Nessel in 1873. Road
22 crossed this property. In 1883, Bruns began serving a term as one of three
county commissioners.
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No. 78530-3-1/3
In May 1883, landowners living beyond Road 46’s eastern end petitioned
for the creation of an east-west road to connect Road 46 to an existing road to
Ferndale. In June, County surveyor George Judson surveyed this east-west
road, which became Road 42. On August 7, the Commission issued the
following order of survey:
Ordered that all the unsurveyed portions of the travelled Road
leading from the Ferndale Ferry to Birch Bay and around the Bay to
the N.E. corner of Lot 1 sec 23 tnsp 40 Range 1 west be surveyed
by the County Surveyor and platted and report returned to the
County Auditor on or before the 10th day of Sept. 1883, said Road
to be known as the Birch Bay and Ferndale Road.
The west end of this road terminated at the home of B.H. Bruns. Judson,
pursuant to this order, surveyed the routes connecting Road 42 to Ferndale and
to Bruns’s homestead. The route connecting Road 42 to Ferndale was surveyed
and designated as Road 47. Judson also surveyed and platted Road 46
between the endpoints described in the 1876 petition, along with the portion of
Road 22 that ran along Birch Bay toward Bruns’s house. Judson referred to all of
these roads collectively in his field notes as comprising the Ferndale and Birch
Bay Road. Neither the Commission’s order nor any of Judson’s documentation
specified a width for the road.
On January 15, 1884, the County published a notice in the Whatcom
Reveille, directed to affected landowners, declaring the County’s intent to
designate the entire route as a county road, and explaining that any objections to
such designation, or claims for damages, must be filed with the County auditor
no later than the first day of the Commission’s February term. There is no record
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No. 78530-3-1/4
or indication of any objection to the road’s designation. On February 5, 1884, 22
days later, the Commission ordered:
In the matter of the resurvey of portions of travelled road
between Ferndale Ferry & Birch [Bay] is ordered that the Plat and
Field Notes of Portions of the said roads be received and accepted,
and no objections having been made in writing, or otherwise to the
legalization of said Road, it is ordered that in accordance with
chapter CCXXXVI of the Code of Washington, said Road is hereby
declared a legal lawful County Road and the said Plat and Field
notes are hereby ordered recorded.
The order did not specify a width for this road, but the statute in effect at
the time, chapter 229, section 2979 of the Code of 1881, provided a default
width:
All county roads shall be sixty feet in width unless the county
commissioners shall, upon the prayer of the petitioners for the
same, determine on a less number of feet in width.
CODE OF 1881, ch. 229, § 2979, at 514.
At this time, Bruns owned all of the property along the road within Sections
23 and 24, while the area within Section 25 was Nessel’s property.1
There is no further history of this road in the record prior to 1916. That
year, county engineer C.M. Adams resurveyed this road between the west line of
Section 25 and the line between Sections 23 and 24 to the west. The survey
1 While more general historical information was not before the trial court, we note that, in
the decades before statehood, Whatcom County’s population increased dramatically. At the
1870 census, when the County’s boundaries included present.day Skagit County, it was recorded
as having 534 inhabitants (not including Native Americans). By 1890, though reduced to its
current boundaries, Whatcom County boasted a population of 18,591. BUREAU OF THE CENSUS,
U.S. DEP’T OF COMMERCE, POPULATION OF STATES AND COUNTIES OF THE UNITED STATES: 1790 TO
1990, at 176-77 (Mar. 1996),
https ://www.census.c~ov/ro~u Iation/www/censusdata/PorulationofStatesandCou ntiesoftheU nited
Statesi 790-1 990jdf [https:Ilperma.cc/Z8P2-G2TL]. It was in this context of rapid growth that the
County’s road-building efforts took place.
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No. 78530-3-1/5
map refers to the surveyed road as “County Roads No. 22-46” and stated that
the road’s ROW was 60 feet wide.
In November 1920, Whatcom County’s prosecuting attorney sent a letter
to B.H. Bruns’s daughter, Wilhelmina Julien, stating the County’s position that the
ROW was 60 feet wide. Another of B.H. Bruns’s daughters, Emma Bruns
Morgan, lived along Birch Bay Drive just west of Harborview Road and platted
her property in 1925 and again in 1939, with both plats indicating that the ROW
was 60 feet wide.
Meanwhile, in 1920, A.F. and Augusta Stone purchased land in the
southwest quarter of Section 24 that included Yorkston’s current property. The
Stones began selling subdivided lots that connected to, and ended at, the road’s
ROW, but did not specify the ROW’s width. In 1922, the Stones platted their
property in the northwest quarter of the southeast quarter of Section 24, calling
this subdivision “Cottonwood Beach Park” and representing the road, now called
Birch Bay Drive, as having a ROW of 60 feet.
In 1930, the Commission resolved to construct Lateral Highway No. 2
along Birch Bay over the existing Road 46. The survey for this new highway
showed a ROW of 60 feet for its entire length, including the full distance of the
part of Road 46 whose width is now in dispute. The specifications for the road
provided for clearing and grubbing to be done for a width of 20 feet on either side
of the road’s center line and for culverts, with a length of up to 45 feet from one
side of the road to the other, to be installed at various points along the highway.
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No. 78530-3-1/6
In 1944, the County granted its first utility franchise in the area to the
Blame-Pleasant Valley Water Association “to lay, construct, maintain and repair
water pipe lines and water mains and all necessary laterals on, across and
over. . . Road No. 46 from its intersection with the old Blaine-Ferndale paved
road to Birch Bay” for a period of 25 years. Ten years later, the County granted a
50-year franchise to the Birch Bay Water Company “to construct, operate and
maintain a water pipe line. . . [o]n Road No. 22-46, commencing at section line
between Sections 31 and 32, Township 40 North, Range 1 East, W.M., thence
West to Birch Bay; thence in a generally Northwesterly direction along the shores
of Birch Bay, to the end of said Road No. 22-46.”
In 1961, the County granted Puget Sound Power & Light (and its
successors in interest) a 50-year franchise to “construct, maintain and operate
transmission and distribution lines for transmitting and distributing electric energy
for power, light, heat and all other purposes and uses, together with poles, wires
and other appurtenances, including on such poles telephone lines as one of such
appurtenances, upon, over, along and across” “all of the streets, avenues, alleys,
lanes and public places” in the recorded plats of the area, all of which showed a
60-foot ROW for Birch Bay Drive.
In 1983, a County ordinance granted Cablevision a 25-year non-exclusive
franchise to operate and maintain coaxial cable along Birch Bay Drive for its
entire length. A 2005 ordinance gave Puget Sound Energy a 25-year franchise
to “set, erect, lay, construct, extend, support, attach, connect, maintain, repair,
replace, enlarge, operate and use facilities in, upon, over, under, along, across
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No. 78530-3-1/7
and through the Franchise Area to provide for the transmission, distribution and
sale of electrical energy for power, heat, and light, and any other purposes for
which electrical energy may be used.”
All of these franchise agreements were predicated on Birch Bay Drive’s
ROW being 60 feet in width, and today these utility lines occupy various portions
of the full ROW. In addition, since 1994, both the utilities and several private
landowners along the roadway—including Yorkston—have sought and received
encroachment permits to use portions of the 60-foot ROW. Plats and short plats
prepared on behalf of the County and various landowners also consistently
represent the ROW as being 60 feet in width.
In February 2015, the Yorkstons filed this declaratory judgment action
pursuant to Washington’s Uniform Declaratory Judgments Act (UDJA), chapter
7.24 RCW, seeking a determination regarding the width of Birch Bay Drive’s
ROW. In September, the matter was certified as a class action, with Yorkston
representing the class. Yorkston asserted that the road’s ROW was 30 feet
wide, while the County maintained that it was 60 feet wide and, as a
counterclaim, asserted a prescriptive easement over a 60-foot-wide ROW.
A two-day bench trial was held in September 2017, with supplemental
argument in December of that year. The trial court delivered its oral decision on
January 3, 2018. Findings of fact and conclusions of law, along with the final
order of judgment, were entered on May 29, 2018.2 Among the trial court’s
conclusions of law were the following:
2 The trial court did not make a determination as to the location of the center line of the
county road. Nor was it required to do so. “The issuance of a declaratory judgment is
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No. 78530-3-1/8
13. The actions that the County Commissioners took in 1883 and
1884 under the 1881 Act constituted establishment of a road which
overrode or expanded the existing roads, into a single route from
the Ferndale terry to the home of Bruns. The acts of the County
commissioners in 1883 and 1884 were a valid exercise of their
power under Chapter CCXXXVI, because the roads in issue were
unsurveyed and unplatted. The County Commissioners did not
state a width for this road.
14. The County Commissioners’ February, 1884 Order establishing
a road named the Ferndale and Birch-Bay Road was a valid
legislative act.
15. Chapter 229, § 2979-2980, Code of Washington, Acts of a
General Nature, 1881, was a controlling statute at the time of the
Commissioners’ 1884 Order, and provided that “All county roads
shall be sixty feet in width unless the county commissioners shall,
upon the prayer of the petitioners for the same, determine on a less
number of feet in width.” Therefore, by virtue of no width having
been specified for the road and its accompanying right-of-way in
the 1884 Order, the width of the right-of-way, including County
Road #46 from its west end near Bruns’s home in Section 23,
Township 40 N, Range 1 W, to its east end on the section line
between Sections 31 and 32, Township 40 N, Range 1 E, was to be
60 feet by operation of law, which is also the ruling of this court as
to its present legal width.
Having determined that the ROW was 60 feet wide, the trial court rejected
the County’s counterclaim of a prescriptive easement. Yorkston and the County
filed notices of appeal and of cross appeal, respectively, the following month.
As a preliminary matter, we address the scope of the record before us.
While Yorkston assigns error to several of the trial court’s findings of fact, he
failed to provide us with a verbatim report of proceedings or the complete exhibits
relied upon by the trial court.
discretionary.” Bloome v. Haverly, 154 Wash. App. 129, 146, 225 P.3d 330 (2010) (citing j~jj3g
County v. Boeing Co., 18 Wash. App. 595, 601 -02, 570 P.2d 713 (1977)). Neither party, in its
briefing, contends that declining to decide the center line issue was an abuse of discretion.
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No. 78530-3-1/9
“Washington law shows a strong preference for deciding cases on the
merits.” Luckett v. Boeing Co., 98 Wash. App. 307, 313, 989 P.2d 1144 (1999)
(citing Griffith v. City of Bellevue, 130 Wash. 2d 189, 192, 922 P.2d 83(1996)).
Nevertheless, the appellant bears the burden of perfecting the record so that we
have before us all of the evidence relevant to deciding the issues presented.
Rhinevault v. Rhinevault, 91 Wash. App. 688, 692, 959 P.2d 687 (1998). When an
appellant fails to so perfect the, record, we are necessarily compromised in our
ability to fairly evaluate the findings in light of that record. In re Parentage &
Custody of A.F.J., 161 Wash. App. 803, 806 n.2, 260 P.3d 889 (2011), aff’d, 179
Wash. 2d 179, 314 P.3d 373 (2013). In such situations, the trial court’s findings of
fact may be accepted as verities. A.F.J., 161 Wash. App. at 806 n.2; see also
Happy Bunch, LLC v. Grandview N., LLC, 142 Wash. App. 81, 88 n.1, 173 P.3d
959 (2007); St. Hilaire v. Food Servs. of Am., Inc., 82 Wash. App. 343, 351-52, 917
P.2d 1114 (1996); Rekhi v. Olason, 28Wn. App. 751, 753, 626 P.2d 513 (1981);
Gauphoim v. Aurora Office Bldgs., Inc., 2 Wash. App. 256, 257, 467 P.2d 628
(1970). This has long been the rule. See Apostle v. Lillions, 8Wn.2d 118, 121,
111 P.2d 789 (1941); Dellerv. Long, 96 Wash. 372, 373, 165 P.98(1917). A
court may decline to reach the merits of an issue if the burden of perfecting the
record is not met. Rhinevault, 91 Wash. App. at 692 (citing State v. Wheaton, 121
Wash. 2d 347, 365, 850 P.2d 507 (1993)).
Here, the County has provided a complete verbatim report of proceedings
and all relevant exhibits, thus perfecting the record. Accordingly, we opt to
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No. 78530-3-1110
decide this case on its merits and evaluate whether substantial evidence
supports the trial court’s factual findings.
III
We next address what, precisely, is at issue between the parties.
Yorkston does not seek to invalidate the 19th century Commission order
designating the road or to pursue a takings claim that, if asserted, would be well
past stale. Instead, Yorkston brought the present action seeking a declaratory
judgment. The UDJA governs declaratory judgment actions in Washington.
Schreiner Farms, Inc. v. Am. Tower, Inc., 173 Wash. App. 154, 159, 293 P.3d 407
(2013). RCW 7.24.020 provides:
A person interested under a deed, will, written contract or other
writings constituting a contract, or whose rights, status or other
legal relations are affected by a statute, municipal ordinance,
contract or franchise, may have determined any question of
construction or validity arising under the instrument, statute,
ordinance, contract or franchise and obtain a declaration of rights,
status or other legal relations thereunder.
“The UDJA does not have an explicit statute of limitations, but lawsuits
under the UDJA must be brought within a ‘reasonable time.” Auto. United
Trades Orci. v. State, 175 Wash. 2d 537, 541 -42, 286 P.3d 377 (2012) (quoting
Brutsche v. City of Kent, 78 Wash. App. 370, 376-77, 898 P.2d 319 (1995)). “What
constitutes a reasonable time is determined by analogy to the time allowed for
a similar [action] as prescribed by statute, rule of court, or other provision.”
Carv v. Mason County, 132 Wash. App. 495, 501, 132 P.3d 157 (2006) (internal
quotation marks omitted) (quoting Brutsche, 78 Wash. App. at 376-77).
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No. 78530-3-I/il
We have previously determined that, as concerns declaratory judgment
actions filed to challenge the acts of a county legislative authority, the 20-day
limitation period set forth in RCW 36.32.330 applies. This provides:
Any person may appeal to the superior court from any decision or
order of the board of county commissioners. Such appeal shall be
taken within twenty days after the decision or order, and the
appellant shall within that time serve notice of appeal on the county
corn m issioners.
RCW 36.32.330.
This 20-day limitation period for appeals of a county commission’s
decision is a rule of long standing. The 1881 territorial code, in effect at the time
of the Commission’s 1884 action, provided:
Any person may appeal from the decision of the board of county
commissioners to the next term of the district court of the proper
district. Such appeal shall be taken within twenty days after such
decision, and the party appealing shall notify the county
commissioners that the appeal is taken, at least ten days before the
first day of the next term of the court appealed to.
CODE OF 1881, ch. 209, § 2695, at 467.
The same limitation period now obtains that obtained in the 1 880s.3 As
the record shows, no objection, nor any form of appeal, was made within 20 days
of the Commission’s 1884 decision. Thus, the validity of the 1884 Commission
decision is beyond challenge. Yorkston is free to seek a declaration as to the
effect of that valid decision. It is in this context that we turn to the merits of this
dispute.
~ “The provisions of a statute, so far as they are substantially the same as those of a
statute existing at the time of their enactment, must be construed as continuations thereof.” RCW
1.12.020.
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No. 78530-3-1/12
lv
The main thrust of Yorkston’s argument is that the trial court’s findings of
fact regarding the effect of the Commission’s 1884 order are unsupported by the
evidence. Properly construed, Yorkston avers, the 1884 order merely
consolidated a public and a private road into a single designated route without in
any way altering or expanding the ROWs of those existing routes. However,
contrary to Yorkston’s assertion, after reviewing the full record, the trial court’s
findings of fact are amply supported by the evidence adduced at trial.
A
“The determination of where to place a road has traditionally been a
distinctly legislative decision.” Harris v. Hornbaker, 98 Wash. 2d 650, 658, 658 P.2d
1219 (1983) (citing State ex rel. Schroeder v. Superior Court of Adams County,
29 Wash. 1, 69 P. 366 (1902)). Moreover, “[w]e presume that municipal
ordinances were validly enacted.” City of Bothell v. Gutschmidt, 78 Wash. App.
654, 660, 898 P.2d 864 (1995). Here, the validity of the order at issue is beyond
challenge. Thus, we initially address the nature and extent of the Commission’s
legislative power to create a road in 1884. To do so, we must examine the
framework created by territorial statutes in effect at the time.
In reviewing and applying the pertinent statutes, we discern and
implement the legislature’s intent. State v. J.P., 149 Wash. 2d 444, 450, 69 P.3d
318 (2003) (citing Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wash. 2d 9, 19,
978 P.2d 481 (1999)). If a statute’s meaning is plain, we effectuate it as an
expression of the legislature’s intent. State v. Villanueva, 177 Wash. App. 251,
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No. 78530-3-1/13
254, 311 P.3d 79 (2013). In reviewing pertinent statutes, “it is always safer not to
add to, or subtract from, the language of the statute unless imperatively required
to make it a rational statute.” Applied Indus. Materials Corp. v. Melton, 74 Wn.
App. 73, 79, 872 P.2d 87 (1994). Courts “cannot ~dd words to an unambiguous
statute when the legislature has not included that language.” Greenhaigh v.
Dep’t of Corr., 180 Wash. App. 876, 884, 324 P.3d 771 (2014).
“The public must have roads to travel on, and when the [County]
Commissioners have duly established them in pursuance of law, a complainant
over whose land they run can assert his right to damages, but cannot call in
question the right of the Commissioners to locate and open public roads.” King
County v. Neely, 1 Wash. Terr. 241, 246 (1 868).~ At the time of the 1884 order,
the territorial code vested county commissions with the power to designate
county roads:
The several boards of county commissioners are authorized and
required .[tb lay out, discontinue or alter county roads and
. .
highways within their respective counties, and do all other
necessary acts relating thereto according to law.
CODE OF 1881, ch. 209, § 2673, at 464.
The territorial code also prescribed a procedure by which county roads
were to be created. While the 1855 Session Laws provided that “[alt any regular
~ In Neely, a landowner made a complaint to the King County Board of Commissioners
for damages after the commission designated a road that traversed his land. 1 Wash. Terr. at
242. After the commission made a determination as to damages owed to Neely, it proceeded
with an order to open the road. Neely appealed to the territorial district court. Neely, 1 Wash.
Terr. at 242. The trial judge directed the jury to a special verdict and presented to the jury a
question of whether it approved of the commission’s act. Neely, 1 Wash. Terr. at 243. When the
jury returned an answer disapproving of the act, the trial court ordered that the commission’s act
be vacated. Neely, 1 Wash. Terr. at 243. On appeal, the territorial Supreme Court held that
damages were the only remedy available to Neely, reversing the trial court’s declaration that the
commission’s action, and the road, be vacated. Neely, 1 Wash. Terr. at 246-47.
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No. 78530-3-1/14
meeting, said board may establish, alter, or vacate county roads, and cause the
same to be laid out, marked or surveyed, and worked and opened, as they shall
deem most for the public interest,” LAWS OF 1855, § 2, at 44, the 1869 Session
Laws described the procedure available to counties to create roads:
All applications for laying out, altering or locating county roads,
shall be by petition to the board of county commissioners of the
proper county, signed by at least twelve householders of the county
residing in the vicinity where said road is to be laid out, altered or
located, which petition shall specify the place of beginning, the
intermediate points, if any, and the place of termination of said
road.
LAWSOF 1869, §2, at 267.
If the county commission concluded that the road would be of “public
utility,” then the viewer’s report, and any survey and plat, were to be recorded,
and the road “shall be considered a public highway, and the commissioners shall
issue an order directing said road to be opened.” LAWS OF 1869, § 5, at 269.
Relying on this second statute, the trial court herein concluded that “[alt
the time of the County’s actions in 1883 and 1884, and the 1884 Order, the
County could not have created a new road based upon a resolution of the County
Commissioners alone,” because a petition was required. This was wrong. The
trial court misapprehended a procedural rule as creating a substantive bar to the
Commission’s authority to create roads. In addition, the trial court did not
consider the absence of any objection to the Commission’s 1884 decision. It did
not consider that any challenge to the Commission’s action—based on the
absence of a petition request—was required to be brought in court within 20 days
of the Commission action (not 130 years later). And it did not consider that, in
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No. 78530-3-1/15
the absence of a challenge, the Commission’s establishment of a road was valid.
The trial record contains no indication of an 1884 challenge to the County’s
action. Whatever the County did, it was valid.
The Commission plainly had the authority to create roads. Chapter 236,
the statute invoked by the Commission, provided in pertinent part:
Sec. 3041. Where by reason. of defective survey or
. .
record, or in case of such numerous alterations of any county road
since the original location and survey, that its location cannot be
accurately defined by the papers on file in the proper county
auditor’s office, or where, through some omission or defect, doubts
may exist as to the legal establishment or evidence of
establishment of any county road, or highway, the board of county
commissioners of the proper county may, if they deem it necessary,
order such highway, or any part of a county road used and traveled
by the public, to be resurveyed, platted and recorded as hereinafter
provided.
Sec. 3043. At least twenty days before the day fixed by the
auditor,. a notice in which shall be inserted the name of each
. .
resident owner or occupier of said land lying on the portion of road
sought to be legalized, or abutting on the line of survey, shall be
published four successive weeks in some newspaper published in
the county, if any such there be.
Sec. 3046. In case objection shall be made in writing by any
person claiming to be injured by the survey made, the board of
county commissioners shall have full power to hear and determine
upon the matter, and may, if deemed advisable, order a change to
be made in the survey. Upon the final determination of the board,
or in case no objection be made at the term named in the notice of
the survey, they shall approve of the same and cause the field
notes and plat of the county road to be recorded, as in case of the
establishment and alteration of highways, and thereafter such
records shall be received by courts as conclusive proof of the
establishment and lawful existence of such county road and public
highway, according to such survey and plat.
CODE OF 1881, ch. 236, §~ 3041, 3043, 3046, at 528-30 (emphasis added).
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No. 78530-3-1/16
The trial court correctly concluded that the Commission had the authority
conferred by chapter 236 to order the survey and establishment of a new road
overriding existing roads, neither of which had ever been surveyed. The trial
court also concluded that, given the wording of chapter 229, section 2979, any
road established after that statute’s enactment would be 60 feet in width unless
otherwise specified. Having elucidated the extent of the Commission’s power
and the effect of its actions, in light of the trial record and the then-material
statutes, we turn now to the Commission’s order itself to determine whether the
evidence before the trial court supports the conclusion that the County’s act
created a road with a ROW 60 feet wide.
B
When evaluating evidence in a bench trial, our review is limited to
determining whether the trial court’s factual findings are supported by substantial
evidence and whether those findings support the trial court’s conclusions of law.
Standing Rock Homeowners Ass’n v. Misich, 106 Wash. App. 231, 242-43, 23 P.3d
520 (2001). Substantial evidence is the “quantum of evidence sufficient to
persuade a rational fair-minded person the premise is true.” Sunnyside Valley
Irrig. Dist. v. Dickie, 149 Wash. 2d 873, 879, 73 P.3d 369 (2003). On review, the
evidence and all reasonable inferences therefrom must be viewed in the light
most favorable to the prevailing party. Korst v. McMahon, 136 Wash. App. 202,
206, 148 P.3d 1081 (2006). Although the trier of fact is free to believe or
disbelieve any evidence presented at trial, “[a]ppellate courts do not hear or
weigh evidence, find facts, or substitute their opinions for those of the trier-of
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No. 78530-3-1/17
fact.” Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wash. App. 710, 717, 225 P.3d
266 (2009) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 572,
343 P.2d 183 (1959)). We review questions of law de novo. Sunnyside Valley,
149 Wash. 2d at 880.
In Yorkston’s opening brief, the bold claim is made that several of the trial
court’s findings of fact are unsupported “by ~y evidence.” The trial court’s
findings of fact with regard to the intentions and actions of B.H. Bruns and the
Commission, Yorkston claims, “amount to ‘assumptions’ and ‘conjectures.” We
disagree.
Regarding Bruns, the trial court found that
Bruns lived in the area and would have been aware of the
existence of the roads and would have used them to get from his
residence along Birch Bay into Bellingham. As he was a
Commissioner, it is presumed that Bruns would have known how
the law works and how things operate with regard to the
establishment of roads.
Finding of Fact 13.
Bruns voted to survey the Ferndale and Birch Bay Road and for the
1884 Order. By virtue of his position as a County Commissioner,
he is presumed to know that the statutory default width of a county
road at the time was 60 feet.
Finding of Fact 16.
Bruns did not seek damages or object that this property would be
burdened in any way by an additional 30 feet of right-of-way.
Finding of Fact 17.
Yorkston claims that it is “pure speculation” to engage in fact-finding as to
what Bruns likely thought at the time. Yorkston is wrong. In issuing its order, the
Commission acted in a legislative capacity. Courts presume that legislative
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actors know the law in the area in which they legislate. Price v. Kitsap Transit,
125 Wash. 2d 456, 463, 886 P.2d 556 (1994). The trial court drew an inference
consistent with this presumption. It was free to do so. Moreover, as the fact
finder, the trial court was allowed to reasonably infer, from Bruns’s involvement in
petitioning for Roads 46 and 22, coupled with his action as a commissioner to
establish his homestead as the terminus of the Ferndale-Birch Bay Road, that he
relied on these roads for transportation. Yorkston presents no evidence to
contradict either inference. Instead, Yorkston points to Bruns’s signature on the
Road 22 petition and claims that, by signing a petition for a road with a 30 foot
ROW in 1877, Bruns declared an enduring preference for roads of that width.
But the trial judge, as fact finder, was not required to draw that inference. This is
especially so in light of the evidence that the Commission’s purpose was to
establish a uniform road over a piecemeal and only partially developed series of
roadways. The trial court acted within its authority in drawing the inferences it
did, while declining to draw others.5
~ Yorkston argues that the ROW must have been created at 30 feet because to create a
60 foot ROW would have been an unconstitutional taking of private land. He provides nothing to
support this assertion. “Eminent domain’ is the power of a sovereign to condemn property for
public use without the owner’s consent.” Pub. Util. Dist. No. 1 of Okanocian County v. State, 182
Wash. 2d 519, 534, 342 P.3d 308 (2015) (citing State ex. rel. Eastvold v. YelIe, 46 Wash. 2d 166, 168,
279 P.2d 645 (1955)). As to Bruns, his actions clearly manifested consent to the establishment of
the road through his land. There is no evidence that Bruns believed that the establishment of a
grander, uniform road, leading literally to his front door, decreased the value of his real estate
holdings.
As to Nessel, Yorkston argues only that the 1884 publication of notice to the affected
landowners did not state a width for the surveyed road and, thus, Nessel could not have had
notice of an increase in the ROW’s width. However, again, Nessel did not make any objection to
the County’s action before, during, or after the time when the road was surveyed, platted, and
established. It may also be presumed that the existence of the county road benefited, and did not
impair, the value of Nessel’s real property. The presumption that improvements benefit adjacent
parcels has long been accepted by Washington courts. See N. Pac. Ry. Co. v. City of Seattle, 46
Wash. 674, 679, 91 P. 244 (1907). The territorial code in effect at the time of the County’s 1884
order authorized counties to create road districts to facilitate taxation of property owners who
benefited from road construction or, in some instances, to require property owners to perform
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No. 78530-3-1/19
Finally, the trial court was not even required to draw an inference, let
alone a conjecture, to find that Bruns did not object to establishment of the
county road with the statutorily mandated ROW. As the record shows, no
landowner, let alone Bruns, raised such an objection. And, as a commissioner,
Bruns voted in favor of the Commission’s action.
Yet Yorkston, undeterred, similarly claims that the following findings
regarding the Commission’s collective motivation to issue its order of survey are
unsupported by the evidence:
The County Commissioners in 1883 decided to create a uniform
road from Birch Bay to the Ferndale Ferry, and it was to include the
previous Road 22, the previous private road referenced as Road 46
in the County Road Book, and whatever else was involved in
between the Ferndale Ferry and Birch Bay.
Finding of Fact 14.
The commissioners invoked Chapter CCXXXVI based upon their
conclusion that there was some confusion and uncertainty as to
where the roads were, what the roads were in the area, their
locations and how they were established, and they intended to
create one uniform road.
Finding of Fact 15.
Again, substantial evidence supports these findings of fact. The
Commission’s order of survey directed that “all the unsurveyed portions of the
travelled Road leading from the Ferndale Ferry to Birch Bay and around the Bay”
ending at Bruns’s homestead be surveyed and platted and the road was “to be
known as the Birch Bay and Ferndale Road.” The survey notes relied upon by
maintenance on the roads themselves. See CODE OF 1881, ch. 229, §~ 2987-2994, at 516-19.
Clearly, this was premised on the notion that the existence of a road adjacent to one’s property
enhanced the property’s value.
Yorkston introduced no evidence to rebut any of this.
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No. 78530-3-1/20
the Commission similarly referred to a singular “Ferndale and Birch Bay Road.”
The Commission’s order of February 6,1884, stated that “said Road is hereby
declared a legal lawful County Road,” containing no reference to a collection of
roads. Further, the language of chapter 236, section 3041, clearly indicates that
its purpose was to facilitate clarity in the alignments of county roads when the
road’s “location cannot be accurately defined by the papers on file” or “doubts
may exist as to the legal establishment or evidence of establishment of” county
roads. CODE OF 1881, ch. 236, § 3041, at 528-29. It is undisputed that no survey
of Roads 22 or 46 existed at the time the statutory process was invoked.
Testimony at trial from Ty Whitcomb, Larry Steele, and Eric Kleinecht,
three surveyors formerly employed by Whatcom County, also supported these
findings. Whitcomb testified that the 1884 action by the Commission effectively
reestablished the county road and superseded the earlier establishment of Road
22 to, more probably than not, set the ROW’s width at 60 feet. Steele testified in
accord with this and further testified that the absence of a reference to width in
the 1884 order meant that the 60-foot default width applied. This testimony
supported the conclusion arrived at by the trial court in its oral ruling:
I believe then that this is the creation of a new road. This
road was given a specific name. It incorporated many other pieces
of roadway that apparently were already in existence according to
the declaration by the commission when they say we are using this
provision of the statute to do this. I believe then that they were
creating a new road, Birch Bay to Ferndale Road, and it was
incorporating the entire route from the ferry all the way up to Mr.
Bruns’ front porch, I think, from the indication that I can get. There
was no width specified, so I believe that the, the default width in the
statute would apply. It would be 60 feet.
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No. 78530-3-1/21
This oral decision, in turn, is consistent with the trial court’s findings of fact
and conclusions of law. “[l]f the court’s oral decision is consistent with the
findings and judgment, it may be used to interpret them.” Ferree v. Doric Co., 62
Wash. 2d 561, 567, 383 P.2d 900 (1963). The trial court’s final finding of fact states:
The County Commissioners created a new road, Ferndale and
Birch Bay Road, incorporating the entire route from the Ferndale
ferry all the way to Bruns’s home, did not specify a width for the
new road, and therefore the default width of sixty (60) feet provided
for by statute applies to this new road.
Finding of Fact 18.
There was sufficient evidence, both in testimony adduced and in exhibits
presented, to persuade a rational, fair-minded person of the truth of the premises
stated by the trial court, including all of the findings to which Yorkston objects.
The trial court’s findings of fact are clearly supported by substantial evidence.
We affirm the trial court’s conclusion that the ROW of the road at issue is
60 feet wide and its declaratory judgment to that effect.6
Affirmed.
WE CONCUR: - r1
7~4 c2~;2~
6 It is thus unnecessary to address Whatcom County’s cross appeal.
21