Wells v. Miller, 42 Wn.App. 94, 708 P.2d 1223 (1985.11.07) – [Cause No: 6370-4-III] – upholds Stevens County Superior Ct – [Case No. 82 2-00037-8] – decision by Judge Larry M. Kristianson which granted summary judgment to adverse possessors, Defendants Miller and thereby denied title holder of record, Plaintiff Wells.  


Chain of Title:

  • TH – Wells: In 1981, Larry L. Wells acquired his property. 
  • AP – Miller: Since 1965, Jerry and Betty Miller have owned and occupied their property.

Disputed Property:

A gap created by the right of way to a vacated county road. Millers’ property is to the west of the vacated county road and claim to the right of way’s eastern line. 

Street Vacation Issue:

“Whether a claim of adverse possession commences when a county road is vacated by operation of law or when formally declared by county commissioners as vacated.” (p. 95).

Applicable Rules:

  1. Applicable Vacation Law – “Any county road, or part thereof, which has heretofore been or may hereafter be authorized, which remains unopened for public use for the space of five years after the order is made or authority granted for opening the same, shall be and the same is hereby vacated, and the authority for building the same barred by lapse of time. Laws of 1889, ch. 19, 32, p. 603.” [See below Justice Smiles’ Cautionary Note for current rule.]
  2. Rights to Vacated Lands Vest with Whom – When the street has not been opened within that 5 year period, the right of abutting property owners to the vacated street vests by operation of law. MILLER v. King CY., 59 Wn.2d 601, 605, 369 P.2d 304 (1962).” (p. 97).
  3. Vested Right Defined – A “vested right” is the power to do certain acts or possess certain things lawfully, and is substantially a property right. The term connotes an immediate fixed right of present or future enjoyment. GILLIS V. KING CY.,[42 wN.2D 373, 255 p.2D 546 (1953)] AT 377[.]” (p. 97).
  4. Vested Rights Operate in Law and Equity – A vested right is “a title, legal or equitable, to the present or future enjoyment of property ….” GILLIS, at 377[.]” (p.97).
  5. Cloud on Title if No Formal Vacation –Although a street is vacated by operation of law, as long as there is no formal vacation, a dedication of record is merely “a cloud on the owner’s title, which may be removed by a vacation order of the boar of county commissioners.” TURNER [v. DAVISSON, 47 Wn.2d 375, 287 P2d 726 (1955)] at 384. (pp. 97-8).  


Majority Opinion: McInturff, J.

“Here, the plat dedicating Railroad Street was filed April 16, 1902. As the street was not developed within 5 years, the dedicated property was vacated by operation of law in 1907. Since then, Mr. Wells’ predecessors in interest had a vested right in this property, which was susceptible to adverse possession.” (p. 98).

Concurring Judges: Green, C.J. and Munson, J.

Justice Smiles’  Thoughts:

Cautionary Note:

RCW 36.87.090 is the current vacation statute. There appears to be a question which the court had to address regarding the current exception by which roads dedicated by plat do not under this current statute apply. This statute was recodified in 1909 with these exceptions, but as the opinion’s footnote 1 on p. 97 identifies this 1909 codification was not retroactive to the 1907 date when Railroad Street became vacated by operation of the then “Applicable Vacation Law.”(See Rule 1 above).

Bonus Questions for Surveyors: 

Were Wells and Miller arguing for the same amount of land? Why? Is this question a slam dunk?gray-small.png