[No. 19645. Department One. May 12, 1926.]
CHARLES E. LIND, Appellant, v. THE CITY OF
BELLINGHAM, Respondent. «1»
Sather & Livesey, for appellant.
FULLERTONFULLERTON, J. - On May 10, 1906, one Teresa Eldridge,
being then the owner of a tract of land lying
within the city limits of the city of Bellingham, prepared
a plat of the tract dividing it into streets, blocks
and lots, entitling the plat, "Eldridge's Second Addition
to the city of Bellingham, Whatcom county, Washington."
The plat was acknowledged in the manner
prescribed by the statute, and was, on the date given,
presented to the city council of the city of Bellingham,
and was by that body accepted and approved. The
westerly street shown on the plat was called thereon
1 Reported in 245 Pac. 925.
144 LIND v. BELLINGHAM.
Opinion Per FULLERTON, J. 139 Wash.
Lafayette street, and extended through the property
for its full length. To the west of Lafayette street, was
a single tier of blocks numbered 12, 13, 14 and 15. The
blocks were divided into eight lots each, the lots being
60 feet by 100 feet in size. To the west of the blocks,
was an alley 16 feet in width. The northerly street
shown on the plat was called thereon Illinois street,
and extended east and west through the property. The
record does not disclose what became of the plat after
its acceptance and approval by the city council but does
show that it was never recorded in the auditor's office
of the county in which the land is situate.
Teresa Eldridge also owned another tract of land
lying immediately to the west of the above mentioned
tract and abutting thereon. On April 9, 1907, she prepared
another plat, entitling it "Eldridge's Second
Addition to the city of Bellingham, Washington," which
on that day she presented to the city council of the city
of Bellingham, and which was by that body on the same
day accepted and approved. The eastern boundary of
the tract covered by this plat coincided with the east
line of the street called Lafayette street on the first
plat, and covered an area lying westerly thereof. A
street was laid out on the east side of the plat, called
Lafayette street, which coincided with the first
Lafayette street, except that it was 55 feet in width instead
of 60 feet. The tier of blocks lying west of Lafayette
street on the first plat was platted anew into blocks of
different numbers, with lots of greater length but of
narrower width than those shown on the first plat. It
also covered additional property of the dedicator lying
farther to the west. This plat was duly acknowledged,
and was recorded in the auditor's office of Whatcom
county on April 19, 1907.
On April 11, 1907, Teresa Eldridge sold and conveyed
to the appellant, Charles E. Lind, all of the
LIND v. BELLINGHAM. 145
May 1926 Opinion Per FULLERTON, J.
property included within the first plat lying east of the
Lafayette street, so named on the second plat. The
property was described in the deed of conveyance as
acreage property. While, for the purposes of description,
it made reference to the second plat, it contained,
no reference to the first. Before making the purchase
the appellant required an abstract of the title to the
property to be furnished him, and this likewise contained
no reference to the original plat.
In March, 1925, the city of Bellingham, through the
employees of its water department, entered upon the
land purchased by the appellant at the place designated
on the original plat as Illinois street and proceeded
to dig a trench for the purpose of laying a water
main. The appellant thereupon began the present action
to enjoin the city from so doing. Issue was taken
on the complaint and a trial was had by the court sitting
without a jury, resulting in a dismissal of the action.
The appeal before us is from the judgment of
dismissal.
h defense to the facts alleged by the plaintiff in his
complaint, which tended to show an unlawful trespass
upon the property by the city, the city set up the first
of the dedicatory plats executed by Teresa Eldridge,
contending that its entry was lawful and of right, because
made upon one of the streets marked thereon as
dedicated to public use. To this defense the appellant
pleaded, and at the trial offered to prove, that, at the
time he purchased the property, it was enclosed by a
fence and was in the sole and exclusive possession of
his grantor; that it did not then bear any indication
on the ground that it had been platted into lots and
blocks, and that he had no knowledge otherwise that
it had been so platted; that no lots or blocks had ever
been sold therein with reference to such plat; that upon
his purchase he entered into possession of the property,
146 LIND v. BELLINGHAM.
Opinion Per FULLERTON, J. 139 Wash.
and, up to the time of the entry by the city
thereon, a period of some eighteen years, had maintained
the sole and exclusive possession of the property
without let or hindrance on the part of the city or
anyone; that he was at the time of the purchase, and
was at the time of the trial, engaged in the business of
road and street construction and repair, in which sand
and gravel are used, and purchased the property
largely because of the deposits of sand and gravel it
contained; that, in furtherance of his business, he had
constructed on the land sand and gravel cleaners and
bunkers, at a cost to himself in a sum in excessoof
$20,000. He further offered to show that the land had been
assessed to him during all of the time of his ownership
as acreage property, and that he had paid taxes to the
city and county on the basis of such an assessment; and
that the official maps of the city did not disclose that
the land had ever been platted into lots and blocks.
To his pleading setting up the facts recited, the trial
court sustained a demurrer, and on the trial refused
the appellant's offer to prove the facts. The rulings
of the court in this behalf constitute the errors assigned.
[1] It would seem that the facts the trial court did
admit in evidence were sufficient to cast a doubt on the
validity of the claims of the city. The fact that the
first plat was never recorded, and the further fact that
the second one included a part of the territory of the
first and was so far similar in title as to be hardly
distinguishable therefrom, alone lends credence to the
thought that both the dedicator of the second plat and
city officers who approved it regarded the first one as
abandoned. Manifestly, conveyances made describing
the property conveyed according to the plats, even in
instances where there was no conflict between them,
would lead to uncertainty and confusion, and, as to the
LIND v. BELLINGHAM. 147
May 1926 Opinion Per FULLERTON, J.
territory over which they conflict, no certainty at all
would attach to the conveyances, as the same tract
could be lawfully conveyed under two conflicting descriptions.
There was, therefore, either an abandonment
of the first plat, or a gross neglect of duty on the
part of the city officers. These considerations are
perhaps not conclusive, but they have a manifest bearing
on the general aspects of the case.
There was error in the rejection of the proffered
evidence. Much of it is, of course, evidence tending
to show the good faith of the appellant, but parts
of it tended to show that he was an innocent purchaser
of the property; that is to say, was a purchaser for
value without notice of the claims of the city. The first
plat was not placed of record, although this is a requirement
of the statute (Rem. Comp. Stat., SSSS 9278,
9279) [P. C. SSSS 7607, 7608]. The recording statutes
are applicable to municipalities as well as to private
individuals, and the rule is that a person purchasing
real property may rely on the record title to the.
property, in the absence of knowledge of title in another,
or of facts sufficient to put him on inquiry.
"He who acts in reliance on the record has behind
him not only the natural equities of his position, but
also the especial equity arising from the protection
afforded every one who trusts the record." 23 R. C.
L. 197, SS 52.
It follows that there must be a new trial. However,
should the court find on the new trial that the appellant
was a purchaser without notice of the claims of the city,
it will not necessarily enter a decree of ouster against
the city in the first instance. The evidence indicates
that the city may have completed the laying of the
water main across the lands. Should this prove to be
the fact, the court will give the city the opportunity to
148 McKINNEY v. SEATTLE.
Statement of Case. 139 Wash.
condemn a right of way for its purposes and enter a
final decree of ouster in the case it refuses so to do.
The judgment is reversed and the cause remanded
with instructions to proceed in accordance with the
conclusions of this opinion.
TOLMAN, C. J., HOLCOMB, MAIN, and PARKER, JJ.,
concur.
