Judge hears competing assertions of ownership
By Marcy Stamper
It was standing-room-only in Okanogan County Superior Court last week for oral arguments over the ownership of a primitive road in the lower Methow Valley.
A 3-mile stretch of road on French Creek outside the town of Methow is just a private-access road, attorney Nick Lofing for Gamble Land and Timber and Cascade Holdings Group explained to Okanogan County Superior Court Judge Henry Rawson. The fact that Okanogan County has never maintained the road, despite including it on a list of county roads and map in 1955, proves that the road is private, he said.
The case has attracted considerable interest. Members of the Okanogan Open Roads Coalition, which has intervened in the case, say they are accustomed to taking back roads and rely on them in an emergency. But the plaintiffs say that privatizing the road is necessary to protect their property — used primarily for cattle grazing and timber — from trespassing and vandalism.
Rawson heard arguments from Lofing and a rebuttal from attorney Barnett Kalikow for the coalition. Both parties are seeking summary judgment, saying there is no dispute over the facts in the case and that it can be decided by a judge as a matter of law, without calling witnesses.
But because Kalikow hadn’t notified the court and Gamble of the coalition’s intentions to file a cross-motion for summary judgment, Rawson refused to hear the coalition’s argument. Kalikow will have to file the notification with the court and the plaintiffs before the coalition’s motion can be heard.
Since 1886, there have only been three ways to establish a road: by petition, prescription (10 years of use or seven years of maintenance) and condemnation, said Lofing. “We went through the county’s records, and the engineer said the county never received a petition or established the road in 1903 or after,” said Lofing.
Seeking quiet title
Gamble and Cascade Holdings are seeking to quiet the title to 3 miles of French Creek Road that starts beyond a locked gate at what Lofing said is the end of the county road. Quiet title is traditionally used in disputes such as the location of a property line. It was necessitated when the plaintiffs discovered during a title search that a final order had not been entered by the county after a 2009 dispute over the road, according to the lawsuit.
(An article about the lawsuit in last week’s Methow Valley News said the section of road is 7.6 miles long, but the portion that traverses Gamble’s and Cascade Holdings’ property — the subject of the quiet-title case — is only 3 miles, according to Lofing. There is a second gate at the Texas Creek end of the road, which is about 7 miles from the French Creek gate.)
According to court documents, the French Creek gate had been there for decades, but the property owners had historically resisted efforts to remove the lock. The locked gate on Texas Creek was installed this fall.
While the attorneys argue that the case is straightforward, it can sound like a lesson in the complex history of European settlement of the West and the transition from federal to private land ownership.
Lofing agreed that maps show that the road physically exists. “The point is that there is no public right to that road” because the county never did anything to establish it, he said. Lofing said no one came forward asserting rights to the road as their property when they filed the quiet-title lawsuit in March.
It wasn’t sufficient for the county to draw a line on a map to represent the road — the county also had to take action to open the road to the public within five years, said Lofing. Even if it had opened the road, the road reverts back to the plaintiffs and their predecessors through a non-user statute, he said.
But Kalikow said the non-user statute applies only to roads drawn on plat maps for future development, not to roads already on the ground and in use.
The law requires only that the general public — not any particular individual — uses a road for 10 years, said Kalikow. The county’s records show that the road was graded and in good condition for most of its length. “That sounds like maintenance,” he said.
Kalikow said the road, which includes the French Creek segment, appears on everything from a 1903 map produced by the U.S. Geological Service to the county’s current road atlas that’s available on the county’s website today.
“In order for them to succeed, we have to believe that all these authorities, from 1903 to 2017, show the road mapped in the same place, but that the public didn’t use it. If they can’t, they fail,” said Kalikow.
The 1903 map is important because it was the first surveyed map produced by the federal government showing townships, ranges and sections so that land could be accurately described on land patents, said Kalikow.
The map shows the government surveyed the old wagon road before there was any private land. Okanogan County rushed in and claimed the roads, said Kalikow.
“We have mapped up an unbroken line, from around 1944 to the present, of citizens using the road from the Texas Creek side,” said Kalikow. “There is no way I can think of that they can meet the burden that this is not a county road.”
Okanogan County challenged Gamble’s claim to the road in March, saying the claims were “vague and incomplete” and that the plaintiffs hadn’t exhausted their administrative remedies, but didn’t take any further action to defend the case. The county later said it would abide by the decision of the court.
This isn’t the first time the status of French Creek Road as a public thoroughfare has been challenged. In the 2009 case, adjacent property owners Jim Weddle and Gebbers Farms petitioned the county to vacate part of the road. The county commissioners denied the request and ordered the property owners to remove the gate, in part because the road was an important escape route.
However, about two months later the commissioners reversed their decision. The reversal came after the county’s attorney said he’d been contacted by lawyers for Weddle and Gebbers, who presented legal documents showing the county didn’t own the road beyond the gate.
Rawson said he would have to sort through the many documents and records — including maps and newspaper clippings more than a century old — submitted by both parties and ensure that all are admissible as evidence. As a result, he couldn’t give the parties an exact date for his decision.