Dennis v. Gary

Gose, J. This action was instituted for the purpose of having a certain roadway or logging road declared to be a [113] public highway, and to enjoin the respondent from obstructing it. There was a decree for the respondent denying the relief sought, from which the appeal is prosecuted. The evidence shows conclusively that the construction of the roadway commenced in 1896, and that it was completed in 1897; that it was built as. a logging road by placing poles parallel five or six feet apart so that cars could be hauled over them, first by horse power and later by means of an engine; that the parties who constructed and used the road for the conveyance of logs, and their successors in interest in the logging business other than the appellant, used it by permission under written leases until 1907; that it has been used almost exclusively as a logging road in the manner stated; that no public money has been expended upon it; and that it has never been treated or.used as a public highway. The evidence does not show any use of the road of any magnitude other than by the parties who constructed it, their successors in interest and employees. The complaint alleged that the road was üsed hy the public for thirteen years. This was denied by the answer. The court permitted the respondent to introduce certain leases in evidence, showing a permissive use of the road. It is contended that the leases were not admissible as evidence under a general denial. The theory of the appellant was that the road had become a public highway by prescription. Upon a general denial it was therefore competent to show that the use had been permissive and not adverse. Penter v. Staight, 1 Wash. 365, 25 Pac. 469; Scheller v. Pierce County, 55 Wash. 298, 104 Pac. 277. Moreover a permissive use was abundantly established by competent parol testimony to which no exception was reserved. Finding no error in the record, the decree will be affirmed. Rudkin, C. J., Fullerton, Chadwick, and Morris, JJ., concur.