Hodgins v. State
| Citation | 513 P.2d 304,9 Wn.App. 486 |
| Decision Date | 06 August 1973 |
| Docket Number | No. 1685--I,1685--I |
| Parties | Arthur HODGINS et al., Appellants, v. STATE of Washington and the University of Washington, Respondents. |
| Court | Washington Court of Appeals |
Westmoreland, French & Meagher, Joseph Meagher, Everett, for appellants.
Slade Gorton, Atty. Gen. of Wash., James B. Wilson, Senior Asst. Atty. Gen., Seattle, for respondents.
Appellants, successors in interest to the original grantors of certain real property, appeal from a summary judgment dismissing their quiet title action against the respondents State of Washington ('State') and the University of Washington ('University'), which were named as grantees in four deeds to the property in question.
The deeds executed in the 1930's conveyed a determinable fee estate in the State to 160 acres of Snohomish County forestland, referred to herein as 'Lee Forest.' Each of the deeds contained the following limitation in its granting clause:
To have and to hold said land only so long as the same shall be allocated for the use of the College of Forestry of the University of Washington for forestry experimental purposes under the exclusive direction and control of the Board of Regents of the University of Washington; it being the intent of the grantors herein to vest in the State of Washington an estate in determinable fee in said land which shall terminate upon the allocation of said land for any purposes other than those herein described.
Appellants alleged in their complaint:
That the College of Forestry of the University of Washington is not using the land described in said deeds for forestry experimental purposes under the exclusive direction and control of the Board of Regents of the University of Washington,
and asked for a decree quieting title in them.
It is not disputed that in 1969 the University's Board of Regents executed a license agreement with Cathcart Elementary School ('Cathcart') located near Lee Forest, in which the University 'gives permission . . . to Cathcart to enter and use Lee Forest for the purposes of an outdoor instructional and educational area . . .' on terms and conditions which included Cathcart's agreement that it would not 'change or alter any part of Lee Forest without the prior written permission of the Dean of the College of Forest Resources .. .' In its order granting summary judgment, the trial court held that the license agreement, contrary to appellants' contention, did not constitute an allocation of Lee Forest prohibited by the deeds, and that uncontroverted affidavits show that the land, in fact, has been allocated for forestry experiments. The court also determined that even if the license agreement were a technical violation of the deeds, it was De minimis and hence not sufficient to cause a reversion to the appellants. Accordingly, the court concluded that there was no issue of material fact, and granted summary judgment. This appeal followed.
Appellants assign error to the conclusions reached by the trial judge in granting judgment of dismissal, and essentially argue that the trial court incorrectly dismissed their action because (1) the terms of the license agreement with Cathcart created a question of material fact as to whether it amounted to an allocation of Lee Forest prohibited by the deeds; (2) the license agreement was, as a matter of law, an allocation of the forestland for a purpose other than those permitted by the deeds, causing an automatic reversion of the property to appellants; and (3) the De minimis rule does not apply to determinable fee estates where reversion to the grantor is self-executing, as distinguished from an estate in fee on condition subsequent where the property reverts to the grantor only when he exercises his right of reentry upon breach of the condition.
When no genuine issue exists as to any fact upon which the outcome of a litigation depends, and a party is entitled to judgment as a matter of law, summary judgment may be granted. CR 56; Capitol Hill Meth. Ch. v. Seattle, 52 Wash.2d 359, 324 P.2d 1113 (1958); See Balise v. Underwood,62 Wash.2d 195, 381 P.2d 966 (1963); Trautman, Motions for Summary Judgment--Their Use and Effect in Washington, 45 Wash.L.Rev. 1 (1970). The respondents State and the University as the moving parties have the burden of establishing the absence of any genuine issue of material fact. Hudesman v. Foley, 73 Wash.2d 880, 441 P.2d 532 (1968); Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960).
Respondents' motion for summary judgment was accompanied by supporting affidavits which recited facts indicating that since the original grant, a substantial number of long-term and continuing forestry experiments have been and are in progress in Lee Forest. The affidavits also support respondents' position that the use by Cathcart is a limited use not inconsistent with the College of Forest Resources' 1 experimental uses and which, to some extent, is supportive of such forestry experimental uses. The affidavit of Ernest M. Conrad, vice-president for Business & Finance at the University, states that he executed the license agreement with Cathcart upon the recommendation of the Dean of the College of Forest Resources with the understanding and belief that the use authorized by the agreement in no way interfered with, hindered, or was inconsistent with the allocation of Lee Forest for experimental purposes, and that the agreement left the control and supervision of Lee Forest in the College of Forest Resources. In addition, the affidavit of James S. Bethel, Dean of the College of Forest Resources, states that the uses permitted to Cathcart affirmatively contribute to the forestry experiments conducted by the College of Forest Resources.
The facts alleged by the respondents' affidavits in support of their motion for summary judgment required the appellants to respond with specific facts disclosing a genuine issue of material fact. Washington Osteo. Med. Ass'n v. King Cy. Med. Serv. Corp., 78 Wash.2d 577, 478 P.2d 228 (1970); W. G. Platts, Inc. v. Platts, 73 Wash.2d 434, 438 P.2d 867 (1968). Appellants filed two affidavits, but neither controverts the facts stated by Mr. Bethel and Mr. Conrad in their affidavits; rather, they assert essentially that the development of property around Lee Forest has led to trespassers, hikers, hunters, and others whose use of the forest has resulted in littering and created conditions which make it impossible to leave expensive forestry experimental equipment on the tract. Thus, the affidavit of Henry A. Harrison, a 1935 graduate of the University of Washington College of Forestry, states that use of the forests for class and laboratory teaching, and practice in forestry techniques does not constitute experimental work. He then gives his opinion that the license granted by the University to Cathcart is not 'a forestry experimental purpose within the contemplation of the parties in the 1930's and that it is a substantial violation of the terms of the Deeds.' The affidavit of Olin A. Lee is to similar effect.
Appellants' affidavits not only fail to controvert the facts asserted by respondents' pleadings and affidavits, but they do not include specific facts based on personal knowledge creating admissible evidence, as required by CR 56(e), and so do not indicate any issue of material fact. Therefore, we need only decide whether the respondents are entitled to judgment as a matter of law, based on the uncontroverted facts set forth in their affidavits. Balise v. Underwood, Supra.
In granting judgment as a matter of law, the trial judge properly considered the evidence and all inferences from it most favorably to the nonmoving party. His order states in part:
(A)ssuming the facts were decided most favorably to the claimants and that the license agreement to Cathcart School was not for forestry experimental purposes, the complained of license agreement did not constitute an allocation of Lee Forest prohibited by the deeds to the Defendants . . .
We agree. The facts asserted by appellants showing unauthorized entry and use of the land are not material facts because they have no bearing on the question of allocation of the land for prohibited purposes--the fundamental issue before us. Such facts having no bearing on the outcome are not material facts and need not be considered further. Capitol Hill Meth. Ch. v. Seattle, Supra.
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