APPLICATION OF SPRADLING

APPLICATION OF SPRADLING
1978 OK 147
586 P.2d 1103
Decided: 11/07/1978
Supreme Court of Oklahoma

APPLICATION OF JOHN THOMAS SPRADLING, JR. AND CYNTHIA BAKER SPRADLING, HUSBAND AND WIFE, AND ALBERT N. EATMAN AND JEAN P. EATMAN, HUSBAND AND WIFE, TO VACATE A PORTION OF THE PLAT OF SUNSET TERRACE, AN ADDITION TO THE CITY OF TULSA, TULSA COUNTY, STATE OF OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF.

¶0 Appeal from the District Court of Tulsa County; Ronald D. Ricketts, Trial Judge; Court of Appeals, Division 1, affirmed; Certiorari Heretofore Granted; Decision of Court of Appeals Vacated and Trial Court Reversed.

Property owners on both sides of a short portion of a deadend street made application to the district court for vacation of that street under 11 O.S. 1971 § 522 et seq. District court allowed the street vacation. City, county, and an individual, as protestants to the application, appealed. Court of Appeals determined "use by the public" in § 524 C 2 required carriage, wagon, or motor vehicle travel. Trial court was affirmed.

DECISION OF COURT OF APPEALS VACATED; TRIAL COURT REVERSED.

S.M. Fallis, Jr., Dist. Atty., by Andrew B. Allen, Asst. Dist. Atty., Tulsa, for appellant, County of Tulsa, Oklahoma.

Waldo F. Bales, City Atty., by Russell R. Linker, II, Asst. City Atty., Tulsa, for appellant, City of Tulsa, Oklahoma.

H.E. Rorschach, Tulsa, for appellant, Margaret Rorschach.

John T. Spradling, Jr., Tulsa, for appellees.

LAVENDER, Vice Chief Justice:

[586 P.2d 1103]

¶1 Hazel Boulevard is a street included in the plat dedication of Sunset Terrace Addition to the City of Tulsa, some fifty years ago. That street deadended to the west at a railroad right-of-way. That right-of-way was purchased by the City of Tulsa in 1973 on which was constructed a bicycle path and pedestrian way in 1975. John Thomas Spradling, Jr., his wife, Albert N. Eatman, and his wife were owners of property on both sides of and for a short part of Hazel Boulevard, next to its termination at the present city owned bike path and pedestrian way.

¶2 The Spradlings and the Eatmans (applicants) sought vacation of Hazel Boulevard along their property. 11 O.S. 1971 § 522 et seq. City of Tulsa, Tulsa County, and an [586 P.2d 1104] individual property owner in the near area protested (protestants). Hearing was on stipulation with some testimony taken. Parties generally agreed that vacation was based on § 524 C 2,

¶3 "The primary purpose of a public street is to accommodate public travel, * * *." Yeaman v. Oklahoma City, 181 Okl. 43, 72 P.2d 357 (1937). See also Hover v. Oklahoma City, 133 Okl. 71, 271 P. 162, 164 (1928).

¶4 Vacation of a platted street under § 524 C 2 requires that the street has "never been used by the public." Here, the stipulation and testimony show present use (of that portion of Hazel Boulevard sought to be vacated) for public travel by pedestrians and bikes to reach the city owned pedestrian and bicycle path now located on the former railroad right-of-way. We do not find the portion of Hazel Boulevard has never been used by the public.

¶5 Decision of Court of Appeals vacated and trial court reversed.

¶6 All of the Justices concur.

Footnotes:

1 "C. If the application shall be by the owner or owners of a portion of such platted tract for the vacation of such portion only, or for the vacation of a street or alley abutting such portion, and it shall appear that:

* * * * * *

"2. The platted streets and alleys on or across such portion have never been used by the public; or * * *."

2 271 P. at page 164, opinion reads in part:

"* * * In Lacy v. City of Oskaloosa, 143 Iowa, 704, 121 N.W. 542, 31 L.R.A. (N.S.) 853, in which the court, among many other things here in point, said:

`The primary use or purpose for which streets are established is to afford the public a way of passage or travel, * * *.'"