Donald v. City of Vancouver

• Decision Date: 29 May 1986
• Docket Number: No. 7107-0-II,7107-0-II
• Citation: 43 Wn.App. 880,719 P.2d 966
• Parties: William M. DONALD, Appellant, v. CITY OF VANCOUVER, Respondent, and The Thunderbird Corporation, Edward H. Pietz and Tod E. McClaskey, a Washington partnership, Respondents.
• Court: Washington Court of Appeals

Page 880

43 Wn.App. 880

719 P.2d 966

William M. DONALD, Appellant, v. CITY OF VANCOUVER, Respondent and The Thunderbird Corporation, Edward H. Pietz and Tod E McClaskey, a Washington partnership, Respondents.

No. 7107-0-II.

Court of Appeals of Washington Division 2.

May 29, 1986.

Charles H. Buckley, Jr., Vancouver, for appellant.

Donald A. Greig, McClaskey, Greig Troutwine & Stoker, Vancouver, for respondent.

REED, Acting Chief Judge.

William M. Donald appeals a summary judgment for the City of Vancouver, the Thunderbird Corporation, and a partnership that controlled Thunderbird. The trial court dismissed Donald's action to obtain a declaration that a conveyance of public land from the City to the other defendants was illegal, and quieted title to the land in the grantees. The only issue before us is whether the defendants were entitled to summary judgment as a matter of law on any basis within the record considered by the trial court. We conclude that they were, and affirm the trial court.

On April 21, 1924, Anna R. Leverich conveyed land to the defendant City of Vancouver:

THE GRANTOR, Anna R. Leverich, ... in consideration of the affection which she has for the City ..., does by these presents give, grant and convey unto the City of Vancouver ... all of the following described real property [description]

TO HAVE AND TO HOLD unto the said City of Vancouver forever, but subject to the following conditions subsequent:

1. The said property shall be used forever for a public park and playground and for public festivals, fetes, pageants and celebrations and other similar uses.

2. The said property shall be known by the name of "LEVERICH PARK".

3. The grantor shall, on or before the 15th day of January, 1925, be paid the sum of Five Hundred ($500.00) Dollars and a like sum on the 15th day of January of each succeeding calendar year during the term of her natural life.

Respondents Edward H. Pietz and Tod E. McClaskey were partners who controlled Thunderbird/Red Lion Motor Inns, the headquarters of which was on property adjacent to Leverich Park. In return for the conveyance of a small strip of park land, which the corporation would add to its headquarters property, Thunderbird/Red Lion agreed in 1981 to undertake improvements to the park. The city council approved the conveyance and the mayor executed a quit claim deed to Pietz and McClaskey.

William M. Donald, who was a resident of Vancouver, learned of the land transfer proposal at a city council meeting on October 5, 1981, and during the following year he criticized some irregularities, such as a mistaken transfer of a second parcel of park land. On October 19, 1982, Donald brought a declaratory judgment action against Vancouver, Pietz, McClaskey, and Thunderbird to have the conveyances declared illegal. ¹ The grantee-defendants counterclaimed to quiet title. They then moved for summary judgment, supporting the motion with affidavits of the city attorney and an officer of Thunderbird Corporation who had been involved in the negotiations. Donald opposed, furnishing his own affidavit.

The trial court granted summary judgment to the defendants. The court proceeded to make findings of fact and conclusions of law, even though it was ruling on a motion for summary judgment. It dismissed Donald's complaints in their entirety and quieted title in the parcel in Pietz and McClaskey. Donald now appeals.

In reviewing a summary judgment, this court makes the same inquiry as did the trial court. The pleadings, affidavits, depositions and admissions of record must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. All facts are considered, and all reasonable inferences are made, in the light most favorable to the nonmoving party. Summary judgment is appropriate only if reasonable persons could reach but one conclusion. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Findings of fact and conclusions of law are not necessary on summary judgment, CR 52(a)(5)(B), and, if made, are superfluous and will not be considered by the appellate court. Duckworth v. Bonney Lake, 91 Wash.2d 19, 21-22, 586 P.2d 860 (1978); Dodd v. Gregory, 34 Wash.App. 638, 641, 663 P.2d 161, review denied, 100 Wash.2d 1007 (1983). ²

Even though the facts, and all reasonable inferences therefrom, are considered in the light most favorable to Donald, the construction of deeds is generally a matter of law for the court, Thomas v. Nelson, 35 Wash.App. 868, 871, 670 P.2d 682 (1983), and we interpret the deed in light of well-established principles of the law of real property. The issue is whether Vancouver had a legal right under the Leverich deed to dispose of any of the land comprising Leverich Park.

An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land,

(a) creates an estate in fee simple; and

(b) provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created.

Restatement of Property § 45 (1936); accord, Metropolitan Park Dist. of Tacoma v. Unknown Heirs of Rigney, 65 Wash.2d 788, 790-91, 399 P.2d 516 (1965).

The term "condition subsequent" denotes that part of the language of a conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, has the power to terminate the interest which has been created subject to the condition subsequent, but which will continue until this power is exercised.

Restatement of Property § 24 (1936).

Except when the attempted condition is illegal ... an estate in fee simple subject to a condition subsequent is created by an otherwise effective conveyance which contains

1. some one of the following phrases, namely, "upon express condition that," or "upon condition that," or "provided that," or a phrase of like import....

Restatement of Property § 45, comment j (1936).

Our purpose in construing the Leverich deed is to ascertain the intent of the parties, especially that of the grantor, and in doing so to give meaning to every word, if that is reasonably possible. Gold Bar v. Gold Bar Lumber Co., 109 Wash. 391, 393-94, 186 P. 896 (1920). Here, Leverich conveyed subject to three specific "conditions subsequent." The only language that might have been employed to more specifically define a fee simple subject to condition subsequent might have been language stating that a right of reentry remained in the grantor and her heirs. See Restatement of Property § 45, comment j (1936).

If Leverich did indeed convey a fee simple subject to condition subsequent, a suit to enforce those conditions may be pursued only by Mrs. Leverich, or her heirs or assigns. As Donald does not claim through Mrs. Leverich, he has no standing. "[A] person whose only interest in a legal controversy is one shared with citizens in general has no standing to invoke the power of the courts to resolve the dispute." Casebere v. Clark Cy. Civil Serv. Comm'n, 21 Wash.App. 73, 76, 584 P.2d 416 (1978); see also Kirk v. Pierce Cy. Fire Protec. Dist. No. 21, 95 Wash.2d 769, 772, 630 P.2d 930 (1981).

Donald therefore argues that the conveyance was a dedication and not of a fee simple defeasible.

[A] dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication.

11 E. McQuillin, Municipal Corporations § 33.02, at 636 (3d ed. rev. 1983); cf. RCW 58.17.020(3) (definition for purposes of statutory dedication). Dedication may be accomplished pursuant to a statutory scheme (RCW 58.17) designed for the dedication of publicly-used streets and other areas within a real estate development. However, a dedication, such as that which Donald asserts, may exist at common law. See McQuillin, supra, § 33.03, at 640. "An implied common law dedication arises from some act or course of conduct from which the law will imply an intention on the part of the owner of the property to dedicate it to the public use." Roundtree v. Hutchinson, 57 Wash. 414, 415-16, 107 P. 345, 27 L.R.A. (N.S.) 875 (1910).

Normally, the fee of dedicated property remains in the dedicator, and even when a park is so dedicated, the public gains only an easement. Rainier Ave. Corp. v. Seattle, 80 Wash.2d 362, 366, 494 P.2d 996, cert. denied, 409 U.S. 983, 93 S.Ct. 321, 34 L.Ed.2d 247 (1972). See generally Annot., Nature of estate conveyed by deed for park or playground purposes, 15 A.L.R.2d 975 (1951).

If Donald were correct, he might,...