In late April, I met with Spokane Valley City Attorney Cary Driskell to talk about a complaint filed against the city in Superior Court.
We were upstairs in a city hall conference room and Driskell had pulled up the county map server, SCOUT, where you can find information on all county properties. He was navigating the map on the conference room TV screen, trying to find an example of what we were talking about.
It didn’t take long for him to find one in the Carnahan Road area: A green line overlaid atop some trees, a bit like the artificial yellow first-down line on a football broadcast.
The green line represented a road – there were plenty of green lines marking recognizable roads on the screen. But the satellite imagery for this particular road clearly didn’t show an alley or roadway of any kind.
We were looking at a ghost.
“That line shouldn’t be there,” Driskell said.
A curious complaint
I have to take a step back in order to explain how I found myself talking with Driskell about ghost rights of way. It all began with some curious court records.
We look over a lot of them at The Spokesman-Review.
We get lists of sentencings and case reports from Superior Court every weekday and peruse them to see if there’s anything that merits a closer look.
A couple of months ago, one of my coworkers who looks through the filings saw something unusual. It was a complaint filed on behalf of Thomas Hamilton, Dennis Crapo and Melissa Crapo. The plaintiffs were seeking quiet title against Spokane Valley in an attempt to claim abandoned, undeveloped portions of 12th Avenue and Stanley Road.
Those were familiar names, and the complaint seemed potentially important, so I went to Superior Court to look at the documents.
That’s when the story took its first turn.
The plaintiffs weren’t just asking for quiet title for abandoned property. They were arguing the property was rightfully theirs due to a seemingly obscure, 130-year-old law.
They were citing a nonuser statute enacted by the Washington Legislature in 1890. It’s still part of state law: RCW 36.87.090.
Here’s what the law says in legalese:
Any county road, or part thereof, which remains unopen for public use for a period of five years after the order is made or authority granted for opening it, shall be thereby vacated, and the authority for building it barred by lapse of time: PROVIDED, That this section shall not apply to any highway, road, street, alley, or other public place dedicated as such in any plat, whether the land included in such plat is within or without the limits of an incorporated city or town, or to any land conveyed by deed to the state or to any county, city or town for highways, roads, streets, alleys, or other public places.
Here’s an English translation:
If a county officially sets aside land for a road, then doesn’t build the road within five years, the adjacent property owners get the land.
(There’s a caveat. The state amended the law in 1909, and after the amendment the law primarily applied to roads platted prior to 1904.)
We’ve got some grizzled editors and reporters at the Spokesman, but none with whom I spoke had heard of this law before. To understand this complaint, I was going to need to talk to some lawyers.
So I reached out to the plaintiffs’ attorney. I wanted to know, “Why are your clients doing this? What will they do with the land if they get it? Will they develop it? How’d they find out about this law? Are you going to use this law to go on a land-claiming spree?”
But the attorney didn’t return my calls.
Then I reached out to Spokane Valley, met with Driskell and the story took a second turn.
‘Litigation isn’t always bad’
My first thought when I read the court documents was, in hindsight, an impressively dumb one.
I thought maybe the plaintiffs had been reading the deep tracks of Washington state law for some reason, found this statute and decided to see if they could use it as a loophole to get free land from an unsuspecting Spokane Valley.
When I was a kid, I had a book of random, useless facts. It had a chapter on weird laws – all real – such as, “married women in Florida can’t parachute on Sundays,” “it’s illegal to put coins in your ears in Hawaii” and “whaling is illegal in Oklahoma” (Oklahoma is landlocked) Reading this law reminded me of those, and I figured these plaintiffs could be using their legal knowledge to make a quick buck.
That hypothesis couldn’t have been more wrong.
It turns out Driskell wants people to file these complaints against the city in court. He’s drafted documents the plaintiffs can use to speed up the process. He is literally encouraging people to go to court against his city.
“It’s not contentious at all,” Driskell said.
He’s helping people file complaints to claim abandoned pieces of land because, well, they aren’t city lands.
The Hamilton and Crapo complaint is completely justified. The land they want is already theirs. It was a road Spokane County platted more than a hundred years ago and failed to build within five years, so ownership fell to the adjacent property owners, who have held it for more than a century.
And yet, on paper, Hamilton and the Crapos don’t look like the owners. On paper, it still looks like a county right of way.
“The difficulty that we had was, we’ve got these paper records that don’t reflect the legal reality,” Driskell said. “The county records didn’t reflect that, and the assessor’s maps didn’t reflect that, and when people would buy property, it wouldn’t actually transfer to them on paper.”
No one changed the maps when the rights of way went to the adjacent property owners. The county’s online map server is based on the old maps, so it retains their inaccuracies.
It’s a strange situation, where people who own land can have a difficult time proving it. They don’t have official records. Going through the courts is the easiest way to clear up the murkiness.
“What provides the greatest certainty for them?” Driskell asked. “It’s a quiet title action, because then you’ve got a court document, a court order that says, ‘Yup, nobody else has superior rights to this legally described property.’”
Driskell explained that the people who laid out the Spokane County grid back in the late 1800s didn’t do the layout from Spokane. They did it remotely.
“They put down these roads without any understanding of what was actually on the ground,” Driskell said. “So they couldn’t develop them in a lot of circumstances.”
That meant plenty of thin strips of land designated for future roads that were never built, and the 60-foot-wide properties went to adjacent landowners automatically.
Driskell said he’s not sure how many of these ghost rights of way he’s dealt with in his 18 years as city attorney. He estimated he’s seen four of them in the last few years – the city isn’t covered in ghost roads, so the issue doesn’t come up very often. He hadn’t seen any until he discovered the ghost rights of way and drafted a memo about them in 2007.
Spokane County Assessor’s Office Segregation Supervisor Frank Moulton estimated the county might see one or two ghost right of way quiet title complaints a year. Segregation is a term in property assessment referring to the division of property for tax purposes.
Moulton said that if the county proactively cleared up all the map inaccuracies, people might complain, because their assessed values would go up.
“There would probably be more people that would take offense to it than be happy about it,” Moulton said.
Driskell said if he had time, he’d like to clear up all the ghost rights of way.
It doesn’t do anyone any good to have rights of way that look like city property but in reality aren’t, he said.
Most of the Spokane Valley ghost rights of way are in the general Carnahan Road area. Moulton said the county ones are likely in more rural areas that haven’t been developed yet.
The rights of way aren’t always especially valuable, since they’re so long and thin. But Driskell said that additional 30 feet to 60 feet – it depends on whether someone owns land on both sides of the ghost road – can allow a developer to increase housing density or add additional landscaping.
Overall, the 1909 law doesn’t impact much. Driskell said the city hasn’t built anything on these ghost rights of way, and he isn’t aware of the county ever building anything on them either.
This is simply a story of a quirky legal situation. In Driskell’s eyes, it’s a perfect example that going through the legal system doesn’t have to be unpleasant.
“Litigation isn’t always bad,” he said. “It isn’t always unfriendly.”
Work to watch for
Spokane Falls Boulevard between Pine and Sherman avenues in the University District will be closed beginning Wednesday through mid-July as part of construction on the new City Line rapid bus transit system.
Bridge crews will be working on the Sprague Avenue bridge over Second Avenue this week.
Work is expected to begin in June in the Spokane Community College parking lot in anticipation of the skyway connection on the North Spokane Corridor. Traffic impacts are expected to be minimal.
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