Zainey v. Linde ( 1922 )

Fullerton, J.

(dissenting) — I cannot concur in the foregoing opinion. The pipe line which the court holds to be an appurtenant to the property conveyed by Linde to Zainey and to pass as such in virtue of the deed of conveyance, is a small iron pipe laid in one of the public streets of the city of Seattle. It is in no sense a permanent structure, nor is it there under any form of grant of a permanent nature. It exists at the mere sufferance of the city, and is subject to removal at any time on the order of the city. Indeed, the city could not have granted-the right to permanently maintain it, as such a grant would be in violation of the purposes for which the city holds title to its streets. It seems to me, therefore, that the pipe line can in no manner be an appurtenant to the property conveyed as that term is commonly and usually understood; on the contrary, I think it nothing more than the mere personal property of the person who put it in the street. Doubtless the grantor could have sold to the grantee his interests in the pipe line had he so desired; but where a sale is claimed by reason of a written instrument, apt words of conveyance must be found in the instrument, and no such words are found in this conveyance. The word appurtenances in a deed of conveyance will not pass property which is wholly personal, nor property which forms no part of the freehold estate conveyed. “Nothing passes by the word appurtenance except such incorporeal easements, rights and privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement.” Book v. West, 29 Wash. 70, 69 Pac. 630.

Another consideration is worthy of notice. If this pipe line is an appurtenant to the real property conveyed, the court to be consistent must when the city requires the removal of the pipe, as the city most certainly will ultimately do, hold that the removal is a breach of the covenants of warranty contained in the deed of conveyance, and must allow the grantee to recover in damages for the injury suffered by the removal. This, I am clear, is neither the legal effect of the conveyance nor the intent of the parties thereto.

In my opinion, the judgment should be reversed.