King County v. Hanson Inv. Co.

• Decision Date: 11 July 1949
• Docket Number: 30771.
• Citation: King County v. Hanson Inv. Co., 208 P.2d 113, 34 Wn.2d 112 (Wash. 1949)
• Court: Washington Supreme Court
• Parties: KING COUNTY v. HANSON INV. CO. (HORNE et ux., Interveners).

208 P.2d 113

34 Wn.2d 112

KING COUNTY v. HANSON INV. CO. (HORNE et ux., Interveners).

No. 30771.

Supreme Court of Washington

July 11, 1949

Department 1

Eminent domain proceeding by King County against Hanson Investment Company to acquire title to described realty for use as a public park, wherein W. Frank Horne and Marie I. Horne, his wife, and others intervened. From a judgment of dismissal named intervenors appeal.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Karr, Karr & Tuttle, Carl G. Koch, Robert K Keller, Seattle, for appellants.

Charles O. Carroll, L. C. Brodbeck, Seattle, for respondent.

STEINERT Justice.

Petitioner King County, instituted proceedings in eminent domain to acquire full and unrestricted title to certain described real property, situated near Lake Sawyer, within the county, and consisting of 3.5 acres, more or less, designated as tract 92 on a plat of that general area. The public objects and uses for which this land was sought to be condemned are, as declared in the county's petition, 'a public park, camping, scenic view and recreational site for public use and enjoyment.'

Hanson Investment Company, a corporation, named as respondent in the petition, entered a formal appearance through its attorney. At about the same time, W. Frank Horne and Marie I. Horne, his wife, having obtained leave of court, filed their complaint in intervention in which they claimed a fee interest in the property through an alleged common law reverter.

Thereafter, upon a hearing duly had, the trial court entered its order adjudicating public use and necessity with respect to the land described in the petition and setting a time for hearing on the question of damages as compensation for its appropriation. On that same day, George A. Eipper and fifty-seven other owners of property in the general vicinity of tract 92 were permitted to intervene in the action for the purpose of ascertaining and determining any rights which they might have to damages occasioned by the condemnation of the property for the uses stated in the petition.

On the day set for the second hearing, but Before impaneling a jury to assess the amount of damages, the trial court heard legal argument with relation to the respective property interests of the parties to, and the interveners in, the action. Upon conclusion of the argument, and after full consideration of the matter, the trial court rendered its memorandum opinion wherein it expressed the view that there was no necessity for the condemnation suit, inasmuch as, under the law, King County already had full title to the property for use as a public park, by virtue of certain prior instruments of conveyance and dedication, and that neither Hanson Investment Company nor any of the interveners had any residuary right, title, or interest in tract 92 which would entitle them to an award of damages in condemnation for the objects and uses stated in the petition. In accordance with its expressed view, the trial court made findings of fact and conclusions of law and entered judgment dismissing the action.

Interveners W. Frank Horne and Marie I. Horne thereupon sought to have this court review, by writ of certiorari, the findings and conclusions previously made and entered by the trial court. That proceeding was disposed of in this court by an opinion directing that the writ be quashed, on the ground and for the reason that the judgment of dismissal entered by the trial court in the condemnation action was a final adjudication of the rights of the interveners and therefore the proper remedy was by appeal, rather than by writ of certiorari. State ex rel. Horne v. McDonald, Wash., 201 P.2d 723. These same interveners thereupon perfected their present appeal in the condemnation proceeding and they are now the only parties prosecuting such appeal.

The evidence adduced in the trial court is documentary only and presents to this court an undisputed factual situation, for a determination of the law applicable thereto.

On January 5, 1932, Hanson Investment Company, a corporation, to which we shall hereinafter refer as Hanson, executed and delivered to King County, the respondent upon this appeal, a quitclaim deed, the record copy of which contains the following language:

'The grantor herein Hanson Investment Company for the consideration of One & oo/100 Dollars and also of benefits to accrue to them by reason of laying out and establishing a public road through their property, and which is hereinafter described, conveys, releases, and quit-claims to the County of King, State of Washington, for use of the public forever, as a public road and highway, all interest in the fllowing described real estate, viz:

'A strip of land in Govt. Lot 5, Section 4, Twp. 21 N.R. 6 E.W.M., described as follows:

'[Description by metes and bounds.] Right-of-way A. J. Hanson Road, situated in the County of King, State of Washington.'

The westerly portion of the property described in, and conveyed by, this deed consists of a narrow rectangular strip of ground, uniform in width. The easterly portion, however, extending to the shore of Lake Sawyer, is irregular in shape and includes a far greater area than would reasonably be required for the construction of a public road or highway.

Thereafter, on May 12, 1939, Hanson executed and dedicated a plat of 'North Shore of Lake Sawyer.' On this plat the land previously deeded to King County in the manner above set forth is delineated as consisting of two contiguous tracts. The southernmost tract appears as a uniform sixty-foot strip of land, extending from the west boundary of Government lot 5 in an easterly direction to the shore line of Lake Sawyer, and is designated on the plat as an 'Existing County Road.' The other tract appears approximately triangular in shape, its northwesterly dimension being three hundred seventy-five feet, its southerly dimension six hundred thirty feet, and its shore line along Lake Sawyer, constituting its third, or northeasterly, dimension, being about five hundred forty feet; this triangular tract lies immediately north of the easterly portion of the sixty-foot strip above mentioned, and is designated on the plat as tract 92. By inscription appearing upon the face of the plat as recorded, and within the designated lineal boundaries of tract 92, the dedicatory instrument recites that this tract was 'Deeded to King County as Public Park Jan. 5, 1932.' However, so far as the record discloses, the only deed to King County from Hanson under date of January 5, 1932, is the one set forth above.

The pertinent language of dedication appearing upon the plat is as follows:

'Know All Men by These Present--That We, the Undersigned Hanson Investment Company Owners in Fee Simple of the Land Hereby Platted, Hereby Declare This Plat and Dedicate to the Use of the Public Forever, All Streets Shown Hereon and the Use Thereof for All Public Purposes Not Inconsistent With the Use Thereof for Public Highway Purposes: Also All Parks and Sewer Easements: * * *.'

This plat was examined and approved by the board of county commissioners of King County and by the King County planning commission on August 1, 1939, and, on the following day, was filed for record at the request of King County. The only portion of the plat which is designated as a park is tract 92, such designation being by way of the recital hereinabove quoted.

On October 16, 1943, Hanson conveyed tracts 87, 88, 89. 90, and 91, plat of North Shore of Lake Sawyer, to the appellants herein, W. Frank Horne and Marie I. Horne. Tract 91 abuts tract 92 on the west, and it is upon the ownership of tract 91 that appellants have based their claim to a fee interest in tract 92.

To justify their claim for an award of damages in this proceeding, appellants have advanced an elaborate and ingenious argument. They contend that, by the deed of January 5, 1932, Hanson conveyed what is now tract 92 to King County for road purposes only; that because of such expressed limitation of use, the deed created a determinable fee simple estate in King County, with the possibility of reverter remaining in the grantor, Hanson; that since the deed contained no provision requiring re-entry by the grantor in order to terminate the grantee's interest in the land, the conveyance constitutes what is technically known as a determinable, defeasible, or qualified fee, subject to be defeated absolutely and immediately upon the happening of a designated event; that the contemplated use of the property for park purposes is inconsistent with the use thereof for road purposes as granted by the deed, and any attempted use of the property for any such inconsistent purpose would be unlawful; that the condemnation proceedings brought by the county, upon the resolution of the county commissioners, evidenced the intention of the county to abandon its right to use the property for road purposes; that in consequence of the commencement and maintenance of such condemnation proceedings, a reverter of the county's defeasible estate immediately took place; that by virtue of the deed from Hanson to appellants in 1943, conveying tract 91, which is the only privately owned land abutting upon tract 92, the possibility of reverter referred to above passed from Hanson to appellants; and that, consequently, appellants, as sole abutting owners, are entitled to a jury award for damages measured by the market value of their present fee simple estate in tract 92.

We are unable to agree with this chain of reasoning.

In the first place, the deed of January 5, 1932, from Hanson to King County, does not say that the land is conveyed for road purposes only, as appellants would construe its phraseology, but simply that it is 'for...