County judge hears persuasive evidence from both sides
By Marcy Stamper
It will require more fact-finding to determine whether a 3-mile segment of French Creek Road has always been a public road or has been used by the public only by permission of adjacent property owners, Okanogan County Superior Court Judge Henry Rawson concluded last week.
Rawson reached that decision on March 20 after listening to hours of legal arguments and reviewing hundreds of pages of maps, historic documents and sworn personal accounts of road use.
Rawson heard oral arguments from lawyers for plaintiffs Gamble Land and Timber and Cascade Holdings Group, two neighboring property owners who say the 3-mile section of French Creek Road is part of their private property. He also heard from the Okanogan Open Roads Coalition, a citizens’ group contesting that claim and arguing that the road has been used consistently by the public for more than a century. The road is outside the town of Methow.
Both Gamble Land and the open roads coalition filed motions for summary judgment, meaning they believe no facts are in dispute and the case can be decided by a judge as a matter of law, without calling witnesses.
Since Rawson didn’t find it so clear-cut, the case will proceed to a trial, where lawyers can call and question witnesses to establish fact, said Barnett Kalikow, attorney for the open roads coalition, after the hearing.
Either side can ask for a jury trial, although the judge may say the issue is not appropriate for a jury, said Kalikow. In that case, attorneys would question witnesses to establish facts so that Rawson could make a decision, he said. There is also the possibility of an advisory jury to assist with fact-finding, said Kalikow.
Explaining his decision, Rawson said arguments presented by Kalikow and Thomas O’Connell, the attorney for Gamble Land, both included persuasive evidence.
Rawson acknowledged that the road appeared on a map as early as 1904 and has been on maps ever since. But just because it appears on a map, it’s not necessarily an official county road, he said.
But Rawson said it wasn’t clear whether that use had been “prescriptive,” meaning that 10 years of continuous public use had established the road as a public thoroughfare, or “permissive,” meaning that the use was only granted by neighborly accommodation.
Rawson pointed to correspondence from fire chiefs and the state Department of Natural Resources stressing the importance of having the road open for access for firefighting and recreational use of public lands.
But Rawson wants to see more evidence of those uses. And while the route seems well established, maps don’t indicate the nature of the use, he said.
“There is some indication that the county made a claim — to some parties — that this was a county road,” he said.
Coalition: Road always public
“It’s their burden to show it’s not a county road, not our burden to show it is,” said Kalikow in his oral argument to the court. “There’s no requirement that the road be maintained as a county road.” The only requirement is that it was in use for 10 years, he said.
In 1917, the county gave the road a number and listed it as a primitive road, said Kalikow. “We can assume it was being used; otherwise it wouldn’t be on the county engineer’s road map,” he said.
French Creek Road is on several county lists — including in 1955, when counties were required to publish a roster because they were receiving state money for roads. But Rawson wanted to know if inclusion on maps and rosters meant the county had actually claimed the road.
“If somebody didn’t believe it was a county road, it was incumbent on them to challenge it in 1955, or a reasonable time after,” said Kalikow.
But O’Connell questioned the reliability of the country’s 1955 road list, since it also included U.S. Forest Service roads and roads that didn’t even exist. Because the list was so unreliable and the county hadn’t followed the law, there was nothing for anyone to challenge, he said.
“Their case requires that we believe the road was mapped and surveyed but that nobody was using it,” said Kalikow. “If people were using it, it was a public road by prescription, and that’s all that’s necessary.”
The only way to end public use of a county road is to petition the county to vacate it — which Gamble did for this stretch of road in 2009, said Kalikow. Only after the county commissioners denied the vacation did the plaintiffs assert that the road had always been their private property, he said.
Kalikow also raised the specter of endless litigation if every abutting landowner could challenge the status of roads.
Gamble Land: Road never properly established
“I don’t dispute that the road existed for many years. But just because the physical road exists, it doesn’t prove it was a public road,” said O’Connell. “It’s very clear — a map doesn’t create a county road.” There is no proof the road was ever established, and no evidence it was condemned, purchased or gifted, he said.
Although the defendants insist the entire length of French Creek Road is public, this section is on his clients’ private property, said O’Connell.
Early accounts aren’t adequate to establish that the road was regularly used by the public. Those uses could have been permissive, granted only by the property owners, said O’Connell.
The 3-mile section of the road in question is gated at both ends, said O’Connell. In the 2009 vacation proceedings, the county commissioners acknowledged that there was no evidence the county had established the road between the gates, he said.
Gamble and Cascade Holdings filed the lawsuit in March 2017 to quiet the title to those 3 miles of French Creek 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 the 2009 vacation proceedings, according to the lawsuit.
Okanogan County challenged Gamble’s claim to the road last March, saying the claims were “vague and incomplete” and that the plaintiffs hadn’t exhausted their administrative remedies. But the county didn’t take any further action to defend the case.
The open roads coalition intervened in the case, saying its members are accustomed to traveling on back roads and rely on them in an emergency. The county later said they would abide by the decision of the court.
No dates have been set for the next phase of the case.