Scurry v. City of Seattle

• Decision Date: 16 November 1909
• Citation: Scurry v. City of Seattle, 56 Wash. 1, 104 P. 1129 (Wash. 1909)
• Parties: SCURRY et al. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

104 P. 1129

56 Wash. 1

SCURRY et al. v. CITY OF SEATTLE.

Supreme Court of Washington

November 16, 1909

Department 1. Appeal from Superior Court, King County; George E. Morris Judge.

Action by Nellie M. Scurry and others against the City of Seattle. From a judgment for defendant, plaintiffs appeal. Affirmed.

James Kiefer, for appellants.

Scott Calhoun and Stephen V. Carey, for respondent.

FULLERTON J.

On February 7, 1890, the appellants executed and delivered to the city of Seattle a deed conveying to the city a triangular tract of land situated at the junction of Broadway and Terrace avenues. The deed, while it contained no covenants of warranty, contained no words of limitation of any kind. The city desired the property for the purpose of constructing an engine house thereon, and shortly after receiving the deed did construct an engine house on the property, and installed therein a fire engine and other fire-extinguishing apparatus. The city maintained the house as a fire station until some time in the year 1904 when it constructed a more commodious fire station some little distance away, and moved its fire-extinguishing apparatus thereto, abandoning the old house as an active fire station, although still using it as a place to store old equipment, or equipment not then in active use. This action was begun by the appellants in 1905 to recover the property from the city. In their complaint the appellants alleged that the property was conveyed to the city on the express condition that it should remain the property of the city as long, and as long only, as it should use the same as a fire station in which it kept therein for active use a steam fire engine and hose cart as part of the fire department system of the city; which conditions, it was further alleged, although not included in the deed proper, were set forth in a separate writing and delivered to the city along with the deed and as a part thereof, and that the city had abandoned the property as a fire station and ceased to use it as such. The allegations as to the conditions on which the property was conveyed to the city were put in issue by the city, and a trial had thereon, which resulted in a judgment in the city's favor.

The writing containing the conditions on which the deed was delivered could not be produced at the trial, and the appellants sought to establish its terms by parol evidence. To prove the contents of the lost instrument there was only one witness, the husband of one of the appellants, and his memory of the language in which the agreement was stated although he testified that he prepared it himself, was so indistinct as scarcely to rise to dignity of proof. While he stated with clearness his understanding of the legal effect of the instrument, he did not relate even the substance of the contents of the writing itself. In order to establish a lost instrument on behalf of a party asserting rights under it, the evidence must be clear and positive and of such a character as to leave no reasonable doubt as to terms and conditions of the instrument. It is not enough that it be established that an instrument containing some form of limitation at some time existed, nor is it enough that some witness is able to state his understanding of the legal effect of the instrument. The contents of the instrument must be substantially proven, and with such clearness that the court can determine its legal effect from the...