(dissenting) — I dissent. The majority, in order to attain a desired result for the public benefit, has evolved a theory that was not considered by the trial court; that was not conceived or considered by any of the parties *369to the action, and is wholly without any support of authority.
The majority admits the theory upon which the trial court decided this case is correct in that the fee to the public street is in the successor in interest to the original fee owner, the dedicator of the plat. The majority holds, however, that the trial court did not go far enough in that it should have held a public easement for park purposes was in the public streets adjoining Columbia Park, which was lying dormant until the superimposed public easement for a street had been vacated. This theory was adopted without any language whatsoever for its support in the dedicatory language of the plat.
The rationale of the majority is simply that the existence of an underlying public use for park purposes in the public streets must have been intended by the plattors since the streets are running through the area in the plat designated as Columbia Park.
This is a non sequitur. The streets were carved out of the area designated as Columbia Park and their use was specifically enumerated in the dedicatory language of the plat:
Know all Men by these presents: That we Frank D. Black and Kate H. Black, his wife, owners of the above described tract of land, being the E. .% of N.W. % of N.W. % of Sect. 22 and the S.W. % of N.W. % of same Sect. 22 being in Twp. 24 N. Rg. 4, E.W.M. herein platted as “Columbia Supplemental No. 1 hereby declare this plat and hereby dedicate to the use of the public forever all streets, alleys, avenues, driveways, highways, public places and Columbia Park herein laid out on said plat, except as herein reserved. The said F. D. Black and wife especially reserves to itself, its successors and assigns all rights and privileges upon said streets, alleys, avenues, driveways, highways and public places to lay down maintain and operate railroads, street railroads, motor-lines, electric lines, water pipes, gas pipes, telephone lines, telegraph lines, electric light lines and all electric wires and, all other rights, franchises and privileges, save and except the right of the public to use said streets, alleys, avenues, driveways, highways and public places for foot passage, for horses and other animals, and for *370wagons, carriages, carts, buggies and other vehicles, save and except railway motor or electric lines or other tram way conveyances. It being the intent and purpose of this dedication to reserve all rights of public or quasi public franchise not herein expressly granted.
(Italics mine.)
There is no provision whatsoever for the use of the streets in any manner for park purposes, or any proviso by implication or otherwise that an underlying dormant easement for park purposes existed in the streets in Columbia Park to become activated into life in the event of the streets’ vacation.
Rights to an interest in land can pass only by grant. In Bradley v. Spokane & Inland Empire R.R., 79 Wash. 455, 140 P. 688 (1914), we said:
The title to the land included within the streets and alleys would only pass by grant, as title to the various lots would only pass by grant.
There is no semblance of a grant of an underlying easement for park purposes to the city. The law is well settled as to the resulting right of ownership upon vacation of a street. The established rule, in this state was announced in the recent case of Finch v. Matthews, 74 Wn.2d 161, 167, 443 P.2d 833 (1968), cited by the majority. We there stated:
Since Burmeister v. Howard, 1 Wash. Terr. 207 (1867), this court has not departed from the rule established in that case, that the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement. Puget Sound Alumni of Kappa Sigma, Inc. v. Seattle, 70 Wn.2d 222, 422 P.2d 799 (1967). This rule was applied specifically to a street dedicated to the public through the recording of a plat in Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362 (1902).
Rowe v. James, 71 Wash. 267, 128 P. 539 (1912); Bradley v. Spokane & Inland Empire R.R., supra; Johnston v. Medina Improvement Club, 10 Wn.2d 44, 116 P.2d 272 (1941).
*371In Johnston v. Medina Improvement Club, supra, we said, at page 56:
By the weight of authority, where property dedicated to the public is abandoned or relinquished, the public’s rights are terminated and the land by operation of law reverts to the dedicator.
See 11 E. McQuillin, Municipal Corporations § 33.66 (3d rev. ed. 1964) at 807.
The defendant city is not the owner of the fee to Columbia Park abutting the vacated streets and cannot therefore claim its ownership as an abutting owner. There being no provision in the plat for an easement in the street for park purposes, the land area of the streets upon vacation reverted to the abutting fee owner, the plaintiff in this case.
The defendant has made other contentions which need not be discussed in view of the disposition of this case made by the majority. In any event they are, in my opinion, without merit.
I agree with the majority that it is for the public benefit that the City of Seattle have the right to use the vacated streets for park purposes; however, this objective should be accomplished by legislation as a required condition in the filing of a plat. In the instant case the city has the right of condemnation which can be exercised.
I feel the majority has not only violated a basic rule of this court in reversing a judgment upon a theory that was not raised in the trial court, but has also been extremely unfair to the plaintiff in denying it the right to present its views as to the theory upon which this case has been decided against it. The action of the majority, in denying the plaintiff this opportunity is tantamount to the taking of property without due process of law.
I would affirm the trial judge.
Rosellini, J., concurs with Hunter, J.
Petition for rehearing denied June 5, 1972.