Selby v. Knudson

Sweeney, J.

(concurring) — I agree with the majority that the Selbys have adversely possessed the 15.15-foot strip in dispute, but I do not agree with its analysis.

As the majority notes, the law in this area is well settled. The intention of the dedicator controls in construing a plat. Roeder Co. v. Burlington N., Inc., 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). The intention of the dedicator here is clear. Crown Street was intended to abut lot 12 of the original plat of Garden City Heights. That expressed intention was not given effect here because, and only because, of a surveying error — a mistake.

The original 1901 plat of the Garden Heights Addition to Walla Walla City (hereafter 1901 plat) consisted of 13 contiguous lots situated as follows:

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*199In 1906, the Garden City Heights Subdivision (hereafter 1906 subdivision) was platted as follows:

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Significantly, the 1906 subdivision expressly referenced the 1901 plat in defining the subdivision of Garden City Heights. The written dedication of the subdivision grant states that the " 'Subdivision of Garden City Heights’ comprises Lots or Blocks one (1) to eleven (11) inclusive, of Garden City Heights. . . . the North East corner of Lot No. five (5) of Block No. three (3) of said Subdivision being identical with the North East corner of Block No. eleven (11) of said Garden City Heights.” In other words, the intention of the Nixons was that the eastern border of their subdivision abut the former lot 12 of the 1901 plat. Crown Street is accordingly shown running through blocks 3 and 4 and abutting lot 12. The written dedication clearly shows that intent as does the plat plan.

The problem arises because of a surveyor’s error which resulted in the subdivision falling approximately 15 feet short (too far east) of lot 12. That is demonstrated by the drawing prepared by the title officer:

*200[[Image here]]

Technically, then, there is an inconsistency between the measurements as shown on the 1906 subdivision plat and the expressed language of the dedication which shows the intention that the subdivision abut lot 12. Because there is an inconsistency between the plat drawing, the expressed language in the 1906 subdivision plat and the surveyor’s measurements, an ambiguity existed. See Cummins v. King Cy., 72 Wn.2d 624, 627, 434 P.2d 588 (1967) (every part of the plat instrument is to be given effect; lines as well as words are to be considered); see also Cook v. Hensler, 57 Wash. 392, 399, 107 P. 178 (1910) (ambiguity exists if words and provisions are susceptible to different constructions).

Because the plat was ambiguous, surrounding circumstances may be considered to determine the intention of the dedicator. Roeder Co. v. Burlington N., Inc., supra at 273. In addition to the two plats, the "surrounding circumstances” *201include the two subsequent deeds executed by the Nixons to correct the "discrepancy arising out of [the] error in the plotting of said subdivision”.

Unfortunately for the Ziskas, however, this analysis does not make any difference in the result because the property was not developed into a street and therefore was not held by the City of Walla Walla for public use. It was held by the City in its proprietary capacity. As such it is subject to adverse possession. Sisson v. Koelle, 10 Wn. App. 746, 748-49, 520 P.2d 1380 (1974). As the majority notes, there is substantial evidence to support the trial court’s finding of adverse possession.