Bryan Kelley And Dorre Don Llc v. Beverly L. Tonda

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BRYAN KELLEY, a married man as his )
separate property, and DORRE DON LLC, ) DIVISION ONE
)
Appellants, ) No. 74423-2-I
)
v. )
)
BEVERLY L. TONDA and MICHAEL E. )
TONDA, husband and wife and the marital ) PUBLISHED OPINION
community composed thereof, KENNAN T. )
SOUTHWORTH and PATRICIA C. )
SOUTHWORTH, husband and wife, KING )
COUNTY WASHINGTON, a Washington )
municipal corporation, CHICAGO, )
MILWAUKEE & ST. PAUL RAILWAY )
COMPANY OF WASHINGTON (or its )
successors in interest), )
)
Respondents. ) FILED: March 27, 2017
)
DWYER, J. — Some cases simply must be tried. In today's legal culture,
there seemingly prevails a belief that all lawsuits are somehow, someway subject
to resolution by dispositive motion. But that never has been—and never will be—
true. Instead, even where, as here, all of the key participants and eye witnesses
are long since dead, a trial is necessary when the material facts are not agreed.
In this lawsuit, the key material fact in question is the bilateral intent of the
parties to a conveyance of real property. The conveyance took place more than
a century ago. Those involved in negotiating the transaction died long ago.
Almost all of the pertinent evidence is documentary in nature. But none of these
No. 74423-2-1/2
circumstances renders a trial unnecessary. To the contrary, because the
evidence proffered raises competing inferences as to the intent of the parties to
the transaction, fact-finding by trial is indispensable. Because the superior court
viewed the situation otherwise, we reverse.
1
Bryan Kelley owns real property abutting Dorre Don Way in Maple Valley,
Washington. His property adjoins Kennan and Patricia Southworths' property,
which adjoins Beverly and Michael Tondas' property. In dispute is a 40-foot strip
of land adjacent to Kelley's and the Southworths' property, extending down from
1
Dorre Don Way and terminating before reaching the Tondas' property (labeled
"Right of Way" below). A gravel driveway extends down the right-of-way,
providing the Southworths and the Tondas with access to Dorre Don Way. From
the end of the right-of-way to the edge of the Tondas' property is a separate tract
of land that is not here at issue.
Right of
Way
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No. 74423-2-1/3
Since moving to Maple Valley in 1995, the Tondas have routinely used the
driveway to reach Dorre Don Way and, from there, have crossed a small strip of
land leading down to a public trail known as the Cedar River Trail. The Tondas
state that the Southworths have taken numerous steps to prevent them from
using the driveway, including planting trees in the driveway, moving boulders to
block the driveway, and installing a locked gate to prevent the Tondas from
accessing Dorre Don Way and the driveway upon returning home from the trail.
For his part, Kelley maintains a fence around his property that partially protrudes
into the right-of-way, although it does not prevent vehicles from accessing the
driveway.
Unable to amicably resolve their neighborly differences, the Tondas
sought assistance from King County. In a letter addressed to all three neighbors
in 2005, the King County Road Services Division stated that it had determined
that the driveway is "wiihin a 40-foot strip of land that was originally deeded to
King County for public highway purposes in 1908." In this letter the County also
stated that it does not recognize the restrictions and provisions included in a
recorded private easement purported to extend over the public right-of-way, that
the County would install road signage at the intersection of the driveway and
Dorre Don Way, and that all fencing within the right-of-way needed to be
removed. The King County Division of Parks and Recreation also sent a letter to
the Southworths, informing them that they needed to remove the fence along the
trail corridor.
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The County has repeatedly attempted to obtain compliance from Kelley
and the Southworths. In early 2006, a county attorney sent a letter to the
Southworths ordering them to remove all trees, rocks, and fencing within the
right-of-way. In September of the same year, the King County Department of
Development and Environmental Services sent a letter to Kelley ordering him to
remove the portion of his fence that partially blocked the right-of-way, stating that
he would be billed for all subsequent compliance inspections.
The Tondas then petitioned the County for permission to restore the
driveway to its 1994 width—which would necessitate removing the trees and
rocks extending down the sides of the driveway. The County required the
Tondas to obtain the relevant permits and surveys prior to restoration. Before
they could do so, the Southworths filed a petition asking the County to vacate the
right-of-way. A hearing was held on the matter in April of 2009. A hearing .
examiner denied the petition. The Southworths appealed the hearing examiner's
decision to the King County Council, which adopted the findings of the hearing
examiner and denied the petition. Thereafter, the Tondas received a boundary
line adjustment and the County granted them a permit to build a residence on
their second lot, restore the width of the driveway, and remove obstructions from
the right-of-way.
Kelley commenced this action before such work began. The trial court
granted summary judgment in favor of the Tondas, concluding that the public
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right-of-way was originally conveyed to the County in 1907 and is still in
existence today. Kelley timely appealed.'
11
A
We review de novo a trial court's order granting summary judgment,
performing the same inquiry as the trial court. MacMeekin v. Low Income Hous.
Inst., Inc., 111 Wash. App. 188, 195, 45 P.3d 570 (2002). An order granting
summary judgment may be entered when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In
reviewing a summary judgment order, we view the facts and all reasonable
inferences therefrom in the light most favorable to the nonmoving party.
Holmquist v. Kina County, 182 Wash. App. 200, 207, 328 P.3d 1000(2014).
"The object and function of summary judgment procedure is to avoid a
useless trial. A trial is not useless, but is absolutely necessary where there is a
genuine issue as to any material fact." Barber v. Bankers Life & Cas. Co., 81
Wash. 2d 140, 144, 500 P.2d 88(1972). "A material fact is one upon which the
outcome of the litigation depends." Balise v. Underwood,62 Wn.2d 195, 199,
381 P.2d 966 (1963). Importantly, "even if the basic facts are not in dispute, if
the facts are subject to reasonable conflicting inferences, summary judgment is
improper." Southside Tabernacle v. Pentecostal Church of God, Pac. Nw. Dist.,
I Although the Southworths are named as respondents in this matter, they side with
Kelley on appeal and ask us to conclude that the trial court erred by granting summary judgment.
The Tondas ask us to strike the Southworths' brief. No authority is cited that would compel such
an action. Instead, we will consider the Southworths' contentions to the extent that they are
relevant and properly raised.
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No. 74423-2-1/6
Inc., 32 Wash. App. 814, 821,650 P.2d 231 (1982). Indeed, Isiummary judgment
procedures are not designed to resolve inferential disputes." Sanders v. Day, 2
Wash. App. 393, 398, 468 P.2d 452(1970). "It seems obvious that in situations
where, though evidentiary facts are not in dispute, different inferences may be
drawn therefrom as to ultimate facts such as intent, . . . a summary judgment
would not be warranted." Preston v. Duncan, 55 Wash. 2d 678, 681-82, 349 P.2d
605 (1960); accord Weisert v. University Hosp., 44 Wash. App. 167, 172, 721 P.2d
553(1986).
The purpose of contract interpretation is to ascertain the intent of the
parties. Roats v. Blakely Island Maint. Comm'n, Inc., 169 Wash. App. 263, 274,
279 P.3d 943(2012). Washington courts "follow the objective manifestation
theory of contracts." Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash. 2d
493, 503, 115 P.3d 262(2005). Under this approach, "[w]hen interpreting an
agreement, we focus on the agreement's objective manifestations to ascertain
the parties' intent." Martin v. Smith, 192 Wash. App. 527, 532, 368 P.3d 227,
review denied, 186 Wash. 2d 1011 (2016).
A contract may consist of one or several writings. Smith v. Skone &
Connors Produce, Inc., 107 Wash. App. 199, 206, 26 P.3d 981 (2001). All writings
that are part of the same transaction are interpreted together. RESTATEMENT
(SECOND)OF CONTRACTS § 202(2)(1981).
[T]he terms of agreement may be expressed in two or more
separate documents, some of these containing promises and
statements as to consideration, and others, such as deeds.. .
embodying performances agreed upon rather than a statement of
terms to be performed. In every such case, these documents
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No. 74423-2-1/7
should be interpreted together, each one assisting in determining
the meaning intended to be expressed by the others.
5 MARGARET N. KNIFFEN, CORBIN ON CONTRACTS § 24.21, at 216 (1998). Writings
are one indication of the parties' intent, but are not necessarily determinative of
that intent. Indeed, this is why writings—not contracts—are reformed to reflect
the true intent of the parties. W. Coast Pizza Co. v. United Nat'l Ins. Co., 166
Wash. App. 33, 41, 271 P.3d 894(2011)(citing A&A Sign Co. v. Maughan,419
F.2d 1152, 1156 (9th Cir. 1969)).
In Berg v. Hudesman, 115 Wash. 2d 657, 669, 801 P.2d 222(1990), our
Supreme Court rejected the theory that contract language must be ambiguous
before evidence of the surrounding circumstances is admissible. Accordingly, we
may consider extrinsic evidence to assist us in ascertaining the intent of the
parties in entering into a contract, regardless of whether the language used in the
writings is deemed ambiguous. Hearst Commc'ns, Inc., 154 Wash. 2d at 502
("[I]ntent of the contracting parties cannot be interpreted without examining the
context surrounding an instrument's execution." (citing Berg, 115 Wash. 2d at 668)).
The court may consider (1)the subject matter and objective of the
contract,(2) the circumstances surrounding the making of the
contract,(3) the subsequent conduct of the parties to the contract,
(4) the reasonableness of the parties' respective interpretations,(5)
statements made by the parties in preliminary negotiations,(6)
usages of trade, and (7)the course of dealing between the parties.
Spectrum Glass Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 129 Wash. App.
303, 311, 119 P.3d 854(2005)(citing Berg, 115 Wash. 2d at 666-68). However,
admissible extrinsic evidence does not include:(1)"[e]vidence of a party's
unilateral or subjective intent as to the meaning of a contract word or term;"(2)
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No. 74423-2-1/8
"[e]vidence that would show an intention independent of the instrument; or"(3)
"[e]vidence that would vary, contradict or modify the written word." Hollis v.
Garwall, Inc., 137 Wash. 2d 683, 695, 974 P.2d 836(1999).
Contract interpretation is a question of fact when a court relies on
inferences drawn from extrinsic evidence, but is a question of law when "(1) the
interpretation does not depend on the use of extrinsic evidence or(2) only one
reasonable inference can be drawn from the extrinsic evidence." Spectrum Glass
Co., 129 Wash. App. at 311. As noted above, summary judgment is inappropriate
when more than one reasonable inference can be drawn from the extrinsic
evidence. Kries v. WA-SPOK Primary Care, LLC, 190 Wash. App. 98, 120, 362
P.3d 974(2015). Similarly, if two or more meanings are reasonable, a question of
fact is presented. GMAC v. Everett Chevrolet, Inc., 179 Wash. App. 126, 135, 317
P.3d 1074 (2014).
B
The pertinent history of the 40-foot strip of land dates back to the early
twentieth century, when it was owned by the Chicago, Milwaukee & St. Paul
Railway Company of Washington (Railroad). During that time, the Railroad was
engaged in a project to expand to the Pacific Northwest. In order to secure the
land necessary for such an expansion, the Railroad entered into a number of
agreements with local governments for the exchange or purchase of land.
Several such agreements occurred between the Railroad and King County.
In 1907, the Railroad identified several strips of land owned by King
County that it wished to obtain for purposes of constructing a railway from King
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No. 74423-2-1/9
County to Idaho. The parties subsequently entered into a written agreement to
memorialize the desired exchanges of land. This 1907 writing describes the
county land that the Railroad wished to obtain as well as the obligations and
promises to be carried out by the parties in order to effectuate the desired land
exchanges.
Whereas, the [Railroad] desires the right to appropriate, use
and occupy the County road first above described between the
southerly line of the right of way of a certain "Y" track of the said
Columbia & Puget Sound Railway, and a point upon Block one (1) of
the town of Maple Valley, and also desires to discontinue the use of
that portion of the County road secondly above described. . . upon
the terms and conditions hereinafter set forth.
(Emphasis added.)
The remainder of the 1907 writing similarly describes primarily future
obligations, promises, and conditions. However, the writing also contains fleeting
statements of present-tense actions interspersed between the contemplated
obligations to be carried out in the future. The land at issue in this matter is
described by the third paragraph of the 1907 writing.
1st. The [County] hereby grants to the [Railroad], its
successors and assigns, upon the performance of the conditions
hereinafter mentioned, the right, privilege and authority to
appropriate, use and occupy for railroad purposes a portion of that
certain County road. . .[description of other land].
2nd. In consideration of the foregoing agreement, the
[Railroad] agrees to, and does hereby, dedicate to the [County]for
highway purposes, a strip of land forty (40)feet in width ...
[description of other land].
3rd. The [Railroad] hereby agrees to, and does hereby
dedicate, to the [County], for highway purposes, a strip of land forty
(40)feet in width . . .[description of strip of land at issue]... and in
consideration of such dedication, the [County] agrees to vacate and
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No. 74423-2-1/10
'discontinue the use of[other land]; it being the intention hereof to
discontinue and avoid a grade crossing of the railway ....
4th. The [Railroad] agrees that it will grade and place in a
suitable condition for public travel, the strips of land hereinbefore
agreed to be dedicated for the purposes of County roads as
aforesaid.
5th. Attached hereto is a plat showing the portion of the
County road to be used and appropriated by the [Railroad], and the
portion of the County road to be discontinued within the lines of the
right of way of the [Railroad]. . . and the strips of land to be
dedicated to the [County]for the purposes of County roads. . . .
(Emphasis added.)
Although the 1907 writing was recorded, it neither purports to be a deed
nor a conveyance. Rather, it concludes that "the parties hereto have caused this
agreement to be executed." (Emphasis added.)
The following year, the Railroad executed a deed. This 1908 deed states
that the Railroad, "in consideration of one dollar ($1.00)to it in hand paid, and
other considerations, does hereby grant, convey and dedicate to the [County], in
the State of Washington, the following described tracts of land . . . ." The deed
then describes the 40-foot strip of land at issue in this matter. The 1908 deed
continues,
TO HAVE AND TO HOLD unto the County of King and its
successors, so long as the said strips of land shall be used for the
purposes of public roads or highways, and in case such use of said
strips, or either of them, shall cease, all the right, title and interest
hereby granted and conveyed shall, as to the strip or strips so
ceased to be used as foresaid, revert to the [Railroad], its
successors or assigns.
This instrument of dedication is executed in pursuance of
two certain agreements between said railway company and the
County of King, one dated July 28th, 1907, and recorded April 21st,
1908, in Volume 572 of Deeds, Page 355, covering tracts Numbers
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1 and 2, above described, and one dated June 18th, 1907, and
recorded April 21st, 1908 in Volume 530 of Deeds, page 500
covering tract Number 3 above described.
Thus, the 1908 deed purports to convey an interest in the same 40-foot strip of
land to the County as was described in the 1907 writing, although this time with
certain conditions and differing terms regarding the use of that land.
The parties here agree that the County came to have an interest in the 40-
foot strip of land. They dispute, however, by which document of conveyance the
County received that interest. The Tondas contend that the language in the third
paragraph of the 1907 writing was sufficient to convey an interest to the County.
Conversely, Kelley contends that the 1907 agreement was an unenforceable
executory contract and that the County received its interest by means of the 1908
deed. Resolution of this dispute requires us to examine the intent of the parties.
Roats, 169 Wash. App. at 274. In determining the parties' intent, we are not
precluded from considering the circumstances surrounding the contract and the
subsequent acts of the parties. Berg, 115 Wash. 2d at 666-67. Moreover, we will
not adopt a contract interpretation that renders part of the contract absurd or
meaningless. Spectrum Glass Co., 129 Wash. App. at 312.
We first note that the language of the third paragraph of the 1907 writing
appears clear and unambiguous—stating that the Railroad "hereby agrees to,
and does hereby dedicate" the strip of land to the County.2 This language gives
2 Kelley asserts that the consideration contemplated by the third paragraph failed. Thus,
he contends, any conveyance of land also failed. He cites to nothing in the record to support
such an assertion. In any event, even assuming that the consideration did fail, a conveyance of
land will not be set aside for a failure of consideration. Inv. & Sec. Co. v. Adams, 192 Wash.41,
50, 72 P.2d 288(1937)('[I]n the absence of fraud, a deed or lease of real estate will not be set
aside as for a failure of consideration, on the sole ground that the promises and agreements
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No. 74423-2-1/12
rise to an inference that the parties intended the 1907 agreement to convey an
interest in land. But our inquiry does not end when encountering perceived
clarity.3 When the specific language of the third paragraph is considered in light
of the entire writing, the intent to presently convey an interest in land becomes
less certain. As discussed above, the 1907 writing primarily contemplates future
obligations and an intent to exchange land. When considered as a whole, the
writing appears to be an exchange of promises.
The mixed language of the 1907 writing—seemingly contemplating both
present and future conveyances, obligations, and conditions—obfuscates the
intent of the parties. Indeed, although the specific language of the third
paragraph gives rise to an inference that the parties intended to presently convey
an interest in land, the unconditional dedication of land seems out of place when
considered in light of the writing as a whole.
To aid us in determining the intent of the parties, we next consider the
context of the entire transaction. Particularly illuminating is the subsequent
conduct of the parties. Just one year after entering into an agreement
concerning the disputed 40-foot strip of land, the Railroad caused to be drafted a
deed, executed "in pursuance of" the 1907 agreement, purporting to convey to
the County an interest in that same land. The County then accepted that deed
and caused the deed to be recorded. These overt actions indicate that the
which entered into its execution and were to be performed in futuro have not been performed."
(quoting 4 RULING CASE LAW Cancellation of Instruments § 14, at 500 (1914))).
3 See, 5 MARGARET N. KNIFFEN, supra,§ 24.7, at 36 ("Before the meaning of words in a
contract can be plain and clear, at least some of the surrounding circumstances must be known;
and proof of the circumstances may make plain and clear a meaning that was not apparent when
in the absence of such proof some other meaning seemed plain and clear.")
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No. 74423-2-1/13
parties did not operate with the understanding that the Railroad had already
dedicated that land to the County in 1907. Rather, such actions give rise to an
inference that the parties intended to convey an interest in the land in 1908.
The Tondas contend that any competing inference arising from the
existence of the 1908 deed cannot be considered. This is so, they assert,
because such an inference would vary the terms of the 1907 writing and
therefore constitute inadmissible extrinsic evidence. The Tondas' reasoning
rests on the basic principle that one cannot impose conditions on the use of land
after one's interest in that land has already been conveyed. But this assertion
requires us to presuppose that the parties intended to convey an interest in land
in 1907. Inferences drawn from the context of the 1907 agreement and the
subsequent conduct of the parties preclude us from making such an assumption
as a matter of law.4 Indeed, a contract interpretation that ignores the 1908 deed
necessarily renders that document meaningless, contrary to the applicable
principles of contract interpretation. Spectrum Glass Co., 129 Wash. App. at 312.
The trial court herein granted summary judgment in favor of the Tondas,
concluding that the language of the 1907 writing was effective to convey a right-
of-way to the County and that the 1908 deed, insofar as it purports to place any
restrictions or conditions on the use of that land, is ineffective. In so concluding,
The Tondas' assertion that competing inferences arising from the 1908 deed cannot be
considered on a motion for summary judgment led to the strange assertion during oral argument
that the 1908 deed would not even be admissible in a trial to resolve the question of whether the
land was conveyed by the 1907 document or by the 1908 document. Wash. Court of Appeals
oral argument, Kelley & Don v. Tonda, No. 74423-2-1 (Jan. 18, 2017), at 16 min. to 16 min., 45
sec.(on file with court).
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No. 74423-2-1/14
the trial court necessarily determined that the existence of the 1908 deed raised
no competing inferences as to the intent of the parties. By ruling thusly, it erred.
Contract interpretation is a question of fact when extrinsic evidence is
relied on and more than one reasonable inference can be drawn from that
evidence. Spectrum Glass Co., 129 Wash. App. at 311. The language of the 1907
writing, context of the 1907 agreement, and subsequent acts of the parties in
executing a deed and causing that deed to be recorded give rise to competing
inferences. When considered in the light most favorable to the nonmoving party,
we cannot declare that no genuine issues of material fact remain in this matter.
Accordingly, the trial court erred by disregarding the 1908 deed and by granting
summary judgment in favor of the Tondas based solely on the 1907 writing. The
parties' intent in this matter is an issue of fact, unresolvable by summary
judgment.
C
The parties also dispute the type of interest in land that the County
received from the Railroad. Although we do not decide by which document of
conveyance the County received an interest, it is nevertheless prudent to discuss
those interests in land that are contemplated by the documents here at issue.
"In general, when construing a deed, the intent of the parties is of
paramount importance and the court's duty to ascertain and enforce." Brown v.
State, 130 Wash. 2d 430, 437, 924 P.2d 908 (1996). "So long as" language in a
deed is limiting language that creates a reversionary interest in the grantor.
Wash. State Grange v. Brandt, 136 Wash. App. 138, 150, 148 P.3d 1069 (2006).
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However, such language may convey either a fee or an easement, depending on
the context of the entire agreement. King County v. Squire Inv. Co., 59 Wash. App.
888, 894, 801 P.2d 1022(1990).
The dedication of a strip of land to serve as a public road or highway
indicates an easement over that land, rather than a fee. See Kiely v. Graves,
173 Wash. 2d 926, 934, 271 P.3d 226(2012)("In our many railroad cases, we have
held that when a grant specifies a strip of land is to be used for a particular
purpose, for example as a right-of-way, the grant generally creates an
easement."(citing Brown, 130 Wash. 2d at 439-40)).
"Any deed to a local government specifically for highway, right of
way, or any public purpose could be interpreted as a dedication
conveying an easement only. If the intent is to grant a fee interest,
that intent should be clearly stated and the use should be
unrestricted or, if the use is a condition, the condition should be
clearly stated with a specific right of reversion."
Kiely, 173 Wash. 2d at 934 (quoting 6 Washington State Bar Association,
Washington Real Property Deskbook § 91.9(1)(3d ed. 2001)).
The words of conveyance in the 1907 writing give rise to the inference that
the County received an easement. The 1907 writing "dedicate[s]" to the County
a strip of land "for highway purposes." This language is consistent with language
commonly used to grant an easement over land. Moreover, the 1907 writing
contains no clearly stated intent to grant a fee interest. See Kiely, 173 Wash. 2d at
932. Accordingly, we are satisfied that—if it is finally determined to be the
document of conveyance—the 1907 agreement contemplates the dedication of
an easement.
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The interest contemplated by the 1908 deed is not so apparent.5 The
1908 deed is not substantially in the form of a statutory deed.6 Thus, no
presumption arises that the deed conveyed a fee. Ray v. King County, 120 Wn.
App. 564, 576, 86 P.3d 183(2004). The 1908 deed uses the determinable
language "so long as" and "revert to the [Railroad]," commonly used when
conveying a determinable fee, but it also expresses a purpose for the
conveyance, rather than a mere restriction on the use of the land. See Pac. Iron
Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 505, 111 P. 578
(1910)(conveyance "forever, for railway purposes, but if it should cease to be
5 It is clear, however, that the 1908 deed does not convey a fee simple subject to
condition subsequent, as the Tondas claim. A grant of a fee simple subject to condition
subsequent contains the words "subject to" or "but if coupled with the words "right of re-entry" or
"right to enter and retake" and further requires that the grantor re-enter and retake the land upon
failure of the specified condition. Metro. Park Dist. of Tacoma v. Rioney's Unknown Heirs, 65
Wash. 2d 788, 790-91, 399 P.2d 516(1965); 17 WILLIAM B. STOEBUCK & JOHN W.WEAVER,
WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 1.11, at 15(2d ed. 2004). None of these
words are present in the 1908 deed. Thus, the Railroad or its successors in interest were not
required to take any action upon the failure of the condition to trigger or facilitate the reversion of
the interest to the grantor or its successors.
6 Washington law during 1908 provided for three types of deeds:
Form of Warranty Deed. §3. That warranty deeds for the conveyance
of land, may be substantially in the following form: The grantor (here insert the
name or names and place of residence,) for and in consideration of(here insert
consideration), in hand paid, convey and warrant to (here insert the grantee's
name or names), the following described real estate (here insert description),
situated in the county of , State of Washington....
. Form of Bargain and Sale Deed. §4. Bargain and sale deeds for
the conveyance of land may be substantially in the following form: The grantor
(here insert name or names and place of residence), for(and) in consideration of
(here insert consideration) in hand paid, bargain, sell and convey to (here insert
the grantee's name or names,) the following described real estate (here insert
description,) situated in the county of , State of Washington. . . .
... Form of Quit Claim Deed. §5. Quit-claim deeds may be in
substance in the following form: The grantor(here insert name or names and
place of residences), for the consideration (here insert consideration,) convey
and quit-claim to (here insert grantee's name or names)all interest in the
following described real estate (here insert description), situated in the county of
State of Washington....
PIERCE'S CODE § 4451-53(Supp. 1905). Here, the 1908 deed does not use the words "warrant,"
"bargain," or "quit-claim." Rather, it "grant[s], convey[s] and dedicate[s]" the land to the County.
Thus, the 1908 deed is not substantially in the form of any statutory deed.
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No. 74423-2-1/17
used for a railway the said premises shall revert to said grantors," created an
easement rather than a determinable fee). The character of the land and
circumstances surrounding the 1908 deed also give rise to an inference that the
parties contemplated an easement. The conveyance is for a strip of land for
highway purposes—out of character for a fee conveyance—and was executed in
pursuance of the 1907 writing, which also contemplated an easement.
The language of the 1908 deed and the context surrounding the deed give
rise to competing inferences regarding the type of interest that was conveyed by
the Railroad.7 Here, as before, the intent of the parties to convey an easement
or a fee is a question of fact that may be illuminated by additional evidence
presented on remand. Accordingly, we do not conclude as a matter of law the
precise interest in land contemplated by the 1908 deed.
III
Kelley next contends that the trial court erred by concluding that the
County's interest in the strip of land can only be extinguished by complying with a
statutory vacation process. Even in the absence of a determination of the
precise interest the County received, it is clear the statutory vacation process8
discussed by the trial court is not applicable.
The County's interest in the strip of land, whether an easement or
determinable fee, cannot exceed the interest granted to it by the documents of
conveyance. The Railroad or its successors in interest thus retains either a
7 Again, this issue only arises if, on remand, the trier of fact finds that the 1908 deed was
the document of conveyance.
8 RCW 36.87.010, .060; King County Code 14.40.010,.015.
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No. 74423-2-1/18
possessory interest encumbered by a servitude or a possibility of reverter,
respectively. A statute which acts to destroy that interest would constitute the
taking of a property interest without just compensation. Cf. WASH. CONST. art. 1, §
16; see NoIlan v. Cal. Coastal Comm'n,483 U.S. 825, 831-32, 107 S. Ct. 3141,
97 L. Ed. 2d 677(1987)(concluding that a statutory scheme requiring property
owners to make an easement across their property available to the public on a
permanent basis constitutes a taking); see also Lawson v. State, 107 Wash. 2d 444,
457, 730 P.2d 1308(1986)(concluding that the plaintiffs held reversionary
interests in land over which an easement was granted, requiring the payment of
just compensation before the land could be acquired by the county).
Nelson v. Pacific County, 36 Wash. App. 17, 671 P.2d 785(1983), upon
which the trial court relied, is inapt. The right-of-way in dispute in Nelson was
unconditionally dedicated to the public by way of a plat, and the issue therein
was whether the county's prior stipulation that it had no interest in that right-of-
way constituted an abandonment of the right-of-way. We concluded in Nelson
that the county could not abandon a right-of-way held in trust for the public in
such a manner. 36 Wash. App. at 23 (citing Commercial Waterway Dist. No. 1 of
King County v. Permanente Cement Co., 61 Wash. 2d 509, 513, 379 P.2d 178
(1963)(concluding that an easement held in trust for the public cannot be
vacated by adverse possession)). Our conclusion in Nelson in no way forecloses
the possibility that a county's conditional interest in land might terminate by
operation of law upon failure of a required condition. Indeed, if this were not the
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No. 74423-2-1/19
case, virtually any conditions placed on a county's use of conveyed land would
be ineffective.
Although no formal vacation proceeding is required for the County's
interest in the strip of land to revert back to the Railroad or its successors in
interest, a material issue of fact remains as to whether the County's interest has
otherwise failed. Kelley contends that it has. Yet, many of Kelley's assertions
regarding the history of the use of the strip of land are unsupported by the record
before us.
First, Kelley asserts that the County has admitted that the public no longer
uses the right-of-way. However, the letter from the County that he cites in
support of this assertion says nothing of the sort. Rather, it states the opposite.
In 1930, when the current alignment of Dorre Don Way... was
established in your area, the gravel road remained open to the
public as part of a short public loop-road starting and ending along
Dorre Don Road. . . .
Over the years, the former loop-road has seen reduced public use
such that the only portion of the former loop-road that has remained
open to vehicular traffic is your privately maintained gravel drive.
(Emphasis added.) The letter continues,"The County does not recognize the
restrictions and provisions included in the private easement recorded over the
public right-of-way since the easement was recorded over pre-existing public
right-of-way."
The mere fact that the right-of-way is used almost exclusively by the
residents who live alongside it does not mean that the County's interest has been
extinguished. See Foster v. Bullock, 184 Wash. 254, 259, 50 P.2d 892(1935)
("The fact that. . . the stretch here involved forms a Cu!de sac[] does not deprive
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No. 74423-2-1/20
it of its character as a public highway."). Indeed, the County concluded as
recently as 2009(by denying the vacation request) that the right-of-way has
value as part of the County road system.
Kelley also contends that the County's interest in the strip of land was
vacated by its failure to "open" the right-of-way. Yet Kelley provides no authority
requiring the County to open the right-of-way in order to preserve its interest as a
matter of law.9 Moreover, Kelley's assertion that the right-of-way was never
opened rests not on any evidence in the record but, rather, on the absence of
evidence to the contrary. This issue was not reached by the trial court, and the
record on appeal is insufficient to resolve it as a matter of law.
As the trial court granted summary judgment in favor of the Tondas based
on the 1907 agreement, and concluded that a formal vacation process was
required before the County's interest in the strip of land could be extinguished, it
did not reach the issue of whether the County's interest in the right-of-way has
otherwise failed. As this issue was not considered by the trial court, and the
record on appeal is insufficient to reach a conclusion as a matter of law, it is a
matter for the trial court to resolve on remand.19
9 The authority presumably relied on by Kelley that requires counties to "open" public
roads within five years of their dedication is RCW 36.87.090. Prior to 1909, any county road
which remained unopened for public use for a period of five years was vacated as a matter of
law. Leonard v. Pierce County, 116 Wn. App. 60,64,65 P.3d 28(2003). In 1909, the legislature
added a proviso exempting public roads and highways conveyed by deed to any county, city, or
town. In cases where the five-year period had not run by the time the 1909 proviso was added,
the proviso acted to save a county's interest in the road. Leonard, 116 Wash. App. at 65. Thus, the
County's interest in the right-of-way at issue here, which was conveyed by deed in 1908, would
have been saved by the 1909 proviso.
10 Kelley also contends that the trial court erred by concluding that neither claim
preclusion nor issue preclusion prevent the current litigation. We disagree. In 1995, the County
agreed to a stipulated judgment declaring that the County's interest in a 16-foot alleyway that
partially intersects the current location of the 40-foot right-of-way had been extinguished by
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No. 74423-2-1/21
IV
Finally, it is prudent to address the County's position taken on appeal in
this matter.
The property that Kelley and the Southworths now own was originally sold
to their predecessors in interest pursuant to a tax foreclosure sale. Kelley argued
before the trial court that the County did not expressly claim an interest in the
right-of-way during these tax foreclosure sales, which, he asserted, was evidence
that the right-of-way did not exist. The County moved for summary judgment,
asking the trial court to conclude that the merger doctrine—which, the County
asserted, was implicated by Kelley's claims—did not apply to invalidate the
County's interest in the right-of-way. The trial court granted the County's motion
and Kelley did not appeal that order.
On appeal from the trial court's grant of summary judgment in favor of the
Tondas, the County has taken the perplexing position that its interest in the right-
of-way is settled pursuant to the trial court's decision on the merger issue. To the
contrary, the County's interest in the right-of-way continues to be the center of
this litigation and the County will remain an indispensable party—with its interest
in the land still at issue—on remand.
operation of law. But the alleyway was vacated by operation of law before the 40-foot right-of-
way was ever conveyed to the County. The 1995 stipulated judgment did not involve the same
facts, legal principles, or parties as are involved in this dispute. Thus, claim and issue preclusion
are not applicable herein. See, e.g., Lemond v. Dep't of Licensing, 143 Wash. App. 797, 805, 180
P.3d 829(2008); Kelly-Hansen v. Kelly-Hansen, 87 Wash. App. 320, 330, 941 P.2d 1108(1997).
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No. 74423-2-1/22
Reversed and remanded.
We concur:
cie,C • 3eokee‘
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