D. L. & Bernadine Leonard V. Pierce County

The Leonards sued to quiet title to
the portion of Beach Lane that abuts their property, arguing that the non-
user statute, RCW 36.87.090, had vacated the road as a matter of law.
Beach Lane was dedicated by plat in 1908. We hold that the non-user
statute does not apply because, by the terms of the statute, it will not
vacate an unopened road that was dedicated in a plat filed after 1904. The
Leonards' theory that Beach Lane was a federal public road by common law
dedication prior to statehood for the transportation of logs, but was
'unopened'1 because it was not recorded in a county Road Book, therefore
allowing the use of the non-user statute, lacks merit. There is no
evidence of public use, only speculation. Furthermore, if the statute
applied, the land would have reverted to the owner of the adjoining
parcels, the Tacoma Land Company, which dedicated Beach Lane in the 1908
plat. We reverse.

Beach Lane lies within Lakewood's corporate limits, an area that was
formerly unincorporated Pierce County. It extends from Lake Steilacoom
Drive, northeasterly, to Steilacoom Lake, a fresh body of water. The
Leonards' property abuts Beach Lane to the northwest and Steilacoom Lake to
the northeast.

The Leonards' property is part of Rogers Lake Tracts, a plat filed
with Pierce County in April 1925. The Rogers Lake Tracts plat was a re-
plat of Lot 61, Block B, Townsite of Interlaaken. The Tacoma Land Company
(TLC) filed the Interlaaken plat with Pierce County in March 1908,
dedicating Beach Lane as a public right-of-way. TLC owned the surrounding
property by a deed from 1900. The property was part of 6,000 acres
including the townsite of Interlaaken, Beach Lane, and the adjoining
parcels. TLC platted the townsite and owned all of the real property on
the westerly side of Steilacoom Lake, including the land at issue here.
There is no known evidence that Beach Lane was an official county road
prior to its dedication as a public road in the 1908 plat. The first map
to show Beach Lane as an identified road was that of the 1908 plat.

In 1853, a sawmill was erected and began operation at the north end of
Steilacoom Lake. Prior to 1908, there were paths, logging trails, and
traveled routes near Steilacoom Lake. Area residents used these paths to
travel around and to access nearby lakes. A map believed to have been
prepared by a surveyor prior to the filing of the 1908 plat shows such
traveled routes around Steilacoom Lake.

Another map, believed to have been prepared before 1900, shows Pierce
County roads in the vicinity of the lake in present-day Lakewood. That map
also shows a bridge that crosses Steilacoom Lake. Another map dated
December 1908 shows the presence of Beach Lane consistent with the map of
the 1908 plat.

In June 1999, the Leonards sued to quiet title to the portion of Beach
Lane that abuts their property. The portion of Beach Lane at issue is an
unpaved section that has been relatively undeveloped for more than 90
years, although people have occasionally used it to access Steilacoom Lake.
The Leonards argued that prior to 1908, Beach Lane served as a logging road
and was used by the public. The trial court ruled that Beach Lane existed
as a road before the 1908 plat and was never opened, thereby vacating it
under the non-user statute.

I. Standard of Review
Summary judgment is appropriate only if there is no issue of material
fact and the moving party is entitled to judgment as a matter of law.2 We
review summary judgment de novo,3 viewing the facts and all reasonable
inferences in the light most favorable to the nonmoving party.4 When the
moving party meets his initial burden of showing the absence of an issue of
material fact, the burden shifts to the nonmoving party to show the
existence of an element essential to that party's case.

II. Non-User Statute
The non-user statute provides:
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.

In short, the non-user statute 'vacates' any county road not opened for
public use within five years of the order or authority for opening it. But
the statute's proviso exempts streets dedicated in a plat from such a non-
user vacation. On vacation of a road, title reverts to the abutting
property owners.

A. Retroactivity of Prosivo
When enacted, the non-user statute did not include the proviso
exempting dedicated roads, which the Legislature added in 1909.8 A statute
cannot have a retroactive effect if it would interfere with vested rights.9
Thus, where a county road has been dedicated and unopened for five years
prior to the 1909 proviso, the right of abutting property owners to the
vacated road has vested and is unaffected by the proviso.10 But if the five-
year period had not run by the time of the 1909 proviso, the abutting
property owner did not have a vested right and the proviso saved the
unopened road from vacation.

Here, TLC filed the plat dedicating Beach Lane in 1908, less than five
years before the 1909 proviso. Therefore, the non-user statute could not
have vacated Beach Lane because the five-year period had not run and the
abutting owners' rights did not vest.
B. Re-dedication of a vacated county road