On Petition eor Rehearing.
[Decided December 20, 1911.]
Per Curiam.— A rehearing is asked in this case. It is said:
“The court apparently bases its decision that the appellants are not now entitled to maintain this action because of an amendment to the previous law, which amendment was passed in 1909,' and which amendment is: ‘Provided, however, that the provision of this section was not applied to any highway, street, alley, or other public place dedicated as such in any plat whether the land included in said plat be within or without the limits of any incorporated city or town, nor to any lands conveyed by deed to the state or to any town, city or county, for roads, streets, alleys, and other public places.’ We apprehend that this court did not intend to say, as it apparently does say in its opinion, that the legislature by act of 1909 had authority to take away from our clients the title to any lands whatsoever. If we had any rights in that land they existed long prior to the legislative act of 1909, and they are to be determined not *373by the law as it stood in 1909 but as it was at the time we got the title to this land, which was in 1895.”
Because of the public importance of the question, and the conception on the part of appellants that we have misapplied the statute, we have decided to withdraw that part of our opinion which rests upon the statute of 1909, reserving our judgment until such time as the construction of the statute is necessarily before us. But this conclusion does not work a reversal or warrant a rehearing. The reference to the 1909 statute in our former opinion may have been inadvertent. It was unnecessary in any event. It was predicated upon the assumption that there was no title in appellants.
The evidence in this case is conflicting. Upon the whole case, the trial judge found that, in the year 1890, the street now claimed by appellants was cleared up, graded, and opened for public use, and that a large sum of money was expended thereon; that the road was dedicated to Pierce county, and that it was open for public use, and used by the public from the spring of 1890 until closed by plaintiffs, who constructed a fence across the road in the year 1908; and further that plaintiffs had no right, title, or interest in and to the street or public highway known as Lake Boulevard, which at the time of the trial was declared by the trial court to be a legally established highway of Pierce county; that the obstructions erected thereon by plaintiffs were maintained without any right, and that they should be enjoined from further obstructing said boulevard. There is evidence to sustain these findings. The court below believed the witnesses of the respondents and rejected the testimony offered by the appellants. The evidence does not so preponderate one way or the other as to warrant our interference. In such cases, it has been the uniform practice of this court to follow the judgment of the trial court.
Rehearing denied, and judgment affirmed.