Metropolitan Park Dist. of Tacoma v. Rigney's Unknown Heirs

• Decision Date: 25 February 1965
• Docket Number: No. 37301,37301
• Citation: 65 Wn.2d 788,399 P.2d 516
• Court: Washington Supreme Court
• Parties: The METROPOLITAN PARK DISTRICT OF TACOMA, a municipal corporation, Respondent, v. UNKNOWN HEIRS OF John L. RIGNEY, deceased, et al., Defendants, Anne Henly Freeman et al., Appellants.

Page 788

65 Wn.2d 788

399 P.2d 516

The METROPOLITAN PARK DISTRICT OF TACOMA, a municipal corporation, Respondent, v. UNKNOWN HEIRS OF John L. RIGNEY, deceased, et al., Defendants Anne Henly Freeman et al., Appellants.

No. 37301.

Supreme Court of Washington, Department 2.

Feb. 25, 1965.

Rehearing Denied April 21, 1965.

Binns & Petrich, James J. Mason, W. Gerald Lynch, Tacoma, for appellants.

Willis C. Oldfield, Tacoma, for respondent.

HAMILTON, Judge.

The Metropolitan Park District of Tacoma initiated this action against the known and unknown heirs of one John L. Rigney, seeking to quiet title to a certain parcel of real estate located in the city of Tacoma and originally owned and conveyed by John L. Rigney. The defendant heirs counterclaimed, alleging breach of a condition subsequent specified in the conveyance of John L. Rigney and a resultant forfeiture. All parties moved for summary judgment. The trial court granted the motion of the Metropolitan Park District and entered a decree quieting title in the district. Certain of the heirs appeal.

The essential facts are not in dispute. On August 2, 1884, John L. Rigney and his wife conveyed by deed the property in question to the Tacoma Light and Water Company, a corporation. The deed, in substance, recites that the property is to be used for the purpose of providing a right of way 'to conduct fresh water by ditch, canal, flume or other conduit for the supply of the City of Tacoma and its inhabitants,' and the grant is made subject to the following provision:

'* * * that if the said strip of land shall not be appropriated by said Company, its successors or assigns, nor by them be used for the purpose aforesaid, by or before the 1st day of January, 1886, or if at any time thereafter said Company, its successors or assigns should change the line of their said aqueduct and cease to use said strip of land for the purpose of conducting such water for the supply of the City of Tacoma, that then and from thenceforth, and at all times afterwards, it shall and may be lawful to and for the said party of the first part their heirs, or assigns into and upon the said strip of land hereby granted to re-enter, and the same to have again, repossess and enjoy in his and her first and former Estate, this Indenture or anything herein to the contrary thereof notwithstanding. * * *'

The Tacoma Light and Water Company entered upon and utilized the property for the purpose intended prior to January 1, 1886, and until 1893 when, by deed dated June 22, 1893, and recorded September 27, 1894, it conveyed the property to the city of Tacoma. The deed to the city provided that title to the property was 'subject to the same conditions to which the same are now subject.' The city continued the water supply usage until sometime prior to February 1, 1905, when such use was discontinued and the property, by ordinance, set aside for park purposes. The Metropolitan Park District was created in 1907, and succeeded the city in the management of the property as a part, with ownership being formalized in the district by deed dated March 13, 1951. In 1920, or thereabouts, tennis courts for public use were constructed and have since been maintained upon the property, although in recent years the courts have fallen in disrepair and are rarely, if ever, used.

All parties and the trial court proceeded upon the basis that the Rigney deed of the property in question conveyed a fee simple estate subject to a condition subsequent; that the condition had been permanently broken prior to 1905; and that neither the Rigneys nor their heirs had claimed a forfeiture or right of re-entry until the counter-claim in the instant suit.

On appeal, we are not called upon to interpret or treat the original grant as conveying anything other than a fee simple estate subject to a condition subsequent. The only questions presented for our determination are (1) whether the grantee of such an estate may acquire title by adverse possession following a breach of the condition subsequent but prior to a claim of forfeiture, and, if not, (2) whether the lapse of an extensive period of time between a breach and an election of forfeiture waives or otherwise extinguishes the condition.

We answer the first question in the negative and the second in the affirmative.

A fee estate subject to a condition subsequent is the kind of defeasible estate in fee which does not terminate automatically by the breach or happening of the condition or event specified. Title to and enjoyment of the estate following the occurrence remains in the grantee or his successors until affirmative action is taken by the grantor or his heirs to bring about a forfeiture or reversion of the estate. Mouat v. Seattle, Lake Shore & Eastern R. Co., 16 Wash. 84, 47 P. 233 (1896); Lewiston Water & Power Co. v. Brown, 42 Wash. 555, 85 P. 47 (1906); Halvorsen v. Pacific Cy., 22 Wash.2d 532, 156 P.2d 907 (1945); Restatement, Property § 57, p. 196; 1 Tiffany, Real Property (3d ed.) §§ 187, 188, pp. 301, 302, 303; 4A Thompson on Real Property (1961) § 1979, pp. 405--410; 2 Powell on Real Property 188, 191, pp. 39, 57. The future interest retained in the grantor under such a grant is termed a 'right of entry' or ...