Gamble Land & Timber, Ltd. v. Okanogan County

GAMBLE LAND & TIMBER, LTD., a Washington limited partnership; and CASCADE HOLDINGS GROUP, LP, a Nevada limited partnership, Appellants, v. OKANOGAN COUNTY, a Washington Municipal Corporation; and all other persons or parties unknown claiming right, title, estate, lien, or interest in the real estate described in the Complaint herein, Respondent, and OKANOGAN OPEN ROADS COALITION, and individual taxpayer members thereof LORAH SUPER, CRAIG OLSON, AND KEVIN CREAGER; and STATE OF WASHINGTON, Ex Relatione LORAH SUPER, CRAIG OLSON, AND KEVIN CREAGER, Respondents and Cross Appellants.

No. 37297-9-III

Court of Appeals of Washington, Division 3

July 27, 2021

UNPUBLISHED OPINION

SIDDOWAY, J.

In 1993 and 1994 Gamble Land & Timber, Ltd. and Cascade Holdings Group, LP, both limited partnerships (hereafter "the Partnerships"), acquired properties in a mountainous region in Okanogan County (County) generally northwest of Methow. The properties are used by the Partnerships for grazing and timber production. Some of the Partnerships' property is located north and some is located south of more than 1,600 acres of public land owned by the Department of Natural Resources (DNR).

A several mile section of a primitive road running through the DNR land traverses the Partnerships' properties to the north and south. Decades ago that segment was gated on both ends by the Partnerships' predecessors in interest. The Partnerships maintain that the gated roadway was privately constructed and is privately owned.

In 1955, Okanogan County's Board of County Commissioners (BOCC) adopted an official county road map that included the roadway traversing the Partnerships and DNR land as a county road. Three times thereafter, the Partnerships or their predecessors petitioned the County to vacate the gated segment. The BOCC denied the petition to vacate each time although the third time, after being threatened by the Partnerships with litigation, it withdrew its denial and demurred on whether the County owned the gated segment.

Following continuing "trespasses" by the public thereafter the Partnerships brought this quiet title action to establish title to the gated segment. In the course of discovery, the County, for the first time, located records from 1889 that evidence action by its territorial board of county commissioners to open the "Methow Valley Road," of which the now-gated segment appeared to be a portion. Those records, and surveys from 1890 to 1905, evidence the establishment and use of a road that two surveyors have opined reliably conforms to the existing roadway, including the gated segment.

The trial court rejected the argument of an intervenor, the Okanogan Open Roads Coalition, that it lacked subject matter jurisdiction over the quiet title action. But it granted the intervener's motion for summary judgment against the Partnerships. Cross appeals were filed. We reject both appeals and affirm the trial court.

FACTS AND PROCEDURAL BACKGROUND

In March 2017, the Partnerships filed a complaint to quiet title to "French Creek Road." Clerk's Papers (CP) at 24-25. Named as defendants were Okanogan County and "all other persons or parties unknown claiming any right, title estate, lien, or interest" in the subject real estate. CP at 21. Read as a whole, the complaint sought to quiet title to a 3.64 mile segment of what was by then called French Creek Road. The segment traverses the Partnerships' properties and the DNR property between them, and has long had private gates at both ends. Attached to the complaint was a rough depiction of the 3.64 mile section, its relation to the Partnerships and DNR properties and the gates:

(Image Omitted)

CP at 31 (shading added).

The complaint acknowledged that the Okanogan County BOCC adopted an official county road map in September 1955 that included as county roads what were then called roads Nos. 51 (French Creek-Texas Creek) and 91 (Watson Draw-French Creek). It complained that the County took this action without paying any compensation to the French Creek Road landowners and without following any of the "proper statutory procedures for acquiring title." CP at 24. It alleged that French Creek Road was built by the Partnerships or their predecessors and had been maintained by them, none of whom ever dedicated or took action evidencing an intent to dedicate the road to the County. It alleged that locks had been used on private gates on the road, in one case for at least 40 years, and in another case, since 2009. It alleged that any public access had been with their permission. Finally, it alleged that the BOCC had "disclaimed 'any interest or jurisdiction'" over the road in 2009. CP at 26.

The County answered and soon amended its answer to the complaint. While both County answers asked the superior court to deny the relief requested by the Partnerships, the amended answer was more neutral on some matters alleged by the complaint. Concerned about the County's new position, the Okanogan Open Roads Coalition and three of its taxpayer members (collectively, "the Coalition") intervened and filed an answer and counterclaims. The Coalition alleged the County had established the road and the public had used it as early as 1888. In a cross claim and counterclaim, it alleged that a County disclaimer of the public's interest in the gated segment was unlawful absent compliance with provisions of Title 36 RCW, and the Partnerships' private gates were an unlawful obstruction in violation of RCW 7.48.140.

The result of a first round of cross motions for partial summary judgment by the Partnerships and the Coalition (the County remained neutral) was a partial victory for the Partnerships. The trial court granted partial summary judgment to the Partnerships on the basis that the "County has never established the disputed roadway as a County Road by dedication, petition, or condemnation." CP at 1566. It ruled that a dispute of fact remained whether the gated segment of the road was public as a result of prescriptive use.

In discovery that followed, the County located historical records not previously known to the Coalition. Based on those records and on expert testimony provided by licensed surveyors and a historian, the Coalition again moved for summary judgment. Relying on the reasoning of a then-recent Montana Supreme Court decision, the Coalition also argued that the quiet title action should be dismissed for lack of subject matter jurisdiction.

This time the County supported the Coalition's argument that the gated segment was demonstrably a public road.

THE SECOND ROUND OF CROSS MOTIONS AND THE ENLARGED RECORD

Lack of subject matter jurisdiction

The Coalition led with its motion asking the court to dismiss the quiet title action for lack of subject matter jurisdiction. It argued that the Partnerships and their predecessors subjected themselves to the exclusive jurisdiction of the BOCC by asking it to vacate French Creek Road, and were bound by the BOCC's adverse decisions.

In support of the Coalition's motion, the Coalition and the County presented evidence that the Partnerships and their predecessors knew or had notice for more than half a century that the road was viewed by the County as public. The County presented a copy of its official county road map published in 1955 that its public works department had marked with the current names of the roads (French Creek, Texas Creek and Watson Draw Roads) and the Partnerships' gate locations:

(Image Omitted)

CPat565.

Evidence was presented that in 1955, Charley Judd, a prior owner of the Partnerships' property north of the DNR property petitioned to vacate part of Texas Creek Road. His petition was denied by the BOCC.

In 1965, there was a second effort to have the County vacate Texas Creek-French Creek Road. The O'Tooles, prior owners of the Partnerships' property south of the DNR property, were among those signing the petition. The county engineer reported to the BOCC in connection with the 1965 petition that the road was "of a generally low standard, but easily traveled by passenger car" and commented that there were three illegal gates across it. CP at 139. He said the road accessed tracts of state land and "carries little traffic at most times, but is extensively used during hunting season." Id. More than 150 people signed petitions opposing vacation. DNR also opposed vacation, stating as reasons that access was needed for resource management and fire control purposes and "[t]o provide access to recreationists, hunters, campers, fisherman, etc. to the public lands," of which the State "owns approximately 6,000 acres." CP at 160. Following a visit to the area in June 1965, the commissioners, "considering the opposition to vacation by private citizens and government agencies . . . unanimously decided that Road #51 (French-Texas Creek) in the matter of vacating would have to be denied in the public interest." CP at 135.^[1]

In July 1969, several community members appeared before the BOCC and asked that the County reopen French Creek Road, which they reported was blocked at the Rodney O'Toole home. The assistant prosecuting attorney advised the commissioners that it was a public road that could not be blocked. On motion and a unanimous vote, the BOCC instructed its attorney to write to O'Toole informing him that he had five days to remove the obstruction. It resolved that on day six, the county grader would grade the road.

Evidence was presented that in February 2008, a senior engineer technician from the County's Department of Public Works wrote to one of the Partnerships' principals to say that a gate crossing French Creek Road, which the County was informed belonged to his operation, "is, in our opinion crossing a public road as therefore probably an...