¶1 (dissenting) — Streets may be vacated by statutory procedure. A valid vacation extinguishes all easements in the land and vests title in the abutting owners.
¶2 It is necessary to distinguish between public roads that are constructed and maintained at public expense, and streets which are not constructed and maintained at public expense but in which nevertheless the owners of lots abutting thereon have a vested interest in their easements over the same.
¶3 The statute upon which appellants rely and which is set out in the majority opinion, was first construed in Murphy v. King County, 45 Wash. 587, 88 Pac. 1115. That was an action to restrain the county from entering upon, and opening as a county road, land that had been enclosed by Murphy. It did not, and could not, on the facts involved in the case, deal with the subject of easements.
¶4 Indeed, the statute does not deal with easements but only with public roads, constructed and maintained at public expense, as such. The vacation provided for *561 in the statute is a vacation as a county road only. It is in the nature of a statute of limitations. The language of the statute: “And authority for building the same barred by lapse of time” indicates this clearly.
¶5 On the facts, the holding in Murphy v. King County, supra, could go no further than to say that the construction of a public road, as such, is barred by five years of nonuse after authorization.
¶6 No citations are necessary for the proposition of law that it is beyond the constitutional power of the legislature to forfeit the vested interests of owners of lots abutting a platted street in their easements therein, by a provision that would function automatically and without due process of law. Nor has this construction been given to the statute.
¶7 The distinction herein contended for is aptly expressed in the Murphy case in these words:
“There may be strong and controlling reasons why a street in a city or town should not be deemed vacated after the lapse of five years, unless open to public travel within that time, but on the other hand we see no plausible reason why the right of a board of county commissioners to open a public highway should continue forever, simply because a plat has been filed by some former owner of the land. We are therefore of opinion that the right to open the streets in question is barred by lapse of time, and that the appellant is entitled to the injunction as prayed.”
¶8 Our cases all hold that the easement is not destroyed by an automatic vacation as a county road under the statute.
¶9 The order of vacation of the King county commissioners was void. The statutory requirements for the vacation of a street were not complied with, and appellants did not acquire title to the land or secure an extinguishment of the easement.
¶10*562 The majority opinion does not hold that the vacation order was valid but instead rests the decision upon the grounds of abandonment under the authority of the statute set out therein. This leaves the easement intact, since only the public road, as such, is abandoned.
¶11 Respondents are threatening to obstruct the land in question and to build substantial structures thereon. If appellants’ easement in the land is to be recognized, the lower court’s injunction should remain in effect. There is no justification in law or in the facts of this case for arbitrarily restricting appellants’ easement to a lesser amount of land than the whole strip of land in question.
¶12 The judgment should be affirmed.
¶13 Millard, J., concurs with Mallery, J.