      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BRYAN KELLEY, a married man as his                )
separate property, and DORRE DON LLC,             )        DIVISION ONE
                                                  )
                     Appellants,                  )        No. 74423-2-I
                                                  )
                   v.                             )
                                                  )
BEVERLY L. TONDA and MICHAEL E.                   )
TONDA, husband and wife and the marital           )        PUBLISHED OPINION
community composed thereof, KENNAN T.             )
SOUTHWORTH and PATRICIA C.                        )
SOUTHWORTH, husband and wife, KING                )
COUNTY WASHINGTON, a Washington                   )
municipal corporation, CHICAGO,                   )
MILWAUKEE & ST. PAUL RAILWAY                      )
COMPANY OF WASHINGTON (or its                     )
successors in interest),                          )
                                                  )
                     Respondents.                 )        FILED: March 27, 2017
                                                  )

       DWYER, J. — Some cases simply must be tried. In today's legal culture,

there seemingly prevails a belief that all lawsuits are somehow, someway subject

to resolution by dispositive motion. But that never has been—and never will be—

true. Instead, even where, as here, all of the key participants and eye witnesses

are long since dead, a trial is necessary when the material facts are not agreed.

       In this lawsuit, the key material fact in question is the bilateral intent of the

parties to a conveyance of real property. The conveyance took place more than

a century ago. Those involved in negotiating the transaction died long ago.

Almost all of the pertinent evidence is documentary in nature. But none of these
No. 74423-2-1/2


circumstances renders a trial unnecessary. To the contrary, because the

evidence proffered raises competing inferences as to the intent of the parties to

the transaction, fact-finding by trial is indispensable. Because the superior court

viewed the situation otherwise, we reverse.

                                         1

       Bryan Kelley owns real property abutting Dorre Don Way in Maple Valley,

Washington. His property adjoins Kennan and Patricia Southworths' property,

which adjoins Beverly and Michael Tondas' property. In dispute is a 40-foot strip

of land adjacent to Kelley's and the Southworths' property, extending down from
                            1
Dorre Don Way and terminating before reaching the Tondas' property (labeled

"Right of Way" below). A gravel driveway extends down the right-of-way,

providing the Southworths and the Tondas with access to Dorre Don Way. From

the end of the right-of-way to the edge of the Tondas' property is a separate tract

of land that is not here at issue.



                          Right of
                            Way




                                         2
No. 74423-2-1/3


        Since moving to Maple Valley in 1995, the Tondas have routinely used the

driveway to reach Dorre Don Way and, from there, have crossed a small strip of

land leading down to a public trail known as the Cedar River Trail. The Tondas

state that the Southworths have taken numerous steps to prevent them from

using the driveway, including planting trees in the driveway, moving boulders to

block the driveway, and installing a locked gate to prevent the Tondas from

accessing Dorre Don Way and the driveway upon returning home from the trail.

For his part, Kelley maintains a fence around his property that partially protrudes

into the right-of-way, although it does not prevent vehicles from accessing the

driveway.

       Unable to amicably resolve their neighborly differences, the Tondas

sought assistance from King County. In a letter addressed to all three neighbors

in 2005, the King County Road Services Division stated that it had determined

that the driveway is "wiihin a 40-foot strip of land that was originally deeded to

King County for public highway purposes in 1908." In this letter the County also

stated that it does not recognize the restrictions and provisions included in a

recorded private easement purported to extend over the public right-of-way, that

the County would install road signage at the intersection of the driveway and

Dorre Don Way, and that all fencing within the right-of-way needed to be

removed. The King County Division of Parks and Recreation also sent a letter to

the Southworths, informing them that they needed to remove the fence along the

trail corridor.




                                          3
No. 74423-2-1/4


       The County has repeatedly attempted to obtain compliance from Kelley

and the Southworths. In early 2006, a county attorney sent a letter to the

Southworths ordering them to remove all trees, rocks, and fencing within the

right-of-way. In September of the same year, the King County Department of

Development and Environmental Services sent a letter to Kelley ordering him to

remove the portion of his fence that partially blocked the right-of-way, stating that

he would be billed for all subsequent compliance inspections.

      The Tondas then petitioned the County for permission to restore the

driveway to its 1994 width—which would necessitate removing the trees and

rocks extending down the sides of the driveway. The County required the

Tondas to obtain the relevant permits and surveys prior to restoration. Before

they could do so, the Southworths filed a petition asking the County to vacate the

right-of-way. A hearing was held on the matter in April of 2009. A hearing .

examiner denied the petition. The Southworths appealed the hearing examiner's

decision to the King County Council, which adopted the findings of the hearing

examiner and denied the petition. Thereafter, the Tondas received a boundary

line adjustment and the County granted them a permit to build a residence on

their second lot, restore the width of the driveway, and remove obstructions from

the right-of-way.

       Kelley commenced this action before such work began. The trial court

granted summary judgment in favor of the Tondas, concluding that the public




                                         4
No. 74423-2-1/5


right-of-way was originally conveyed to the County in 1907 and is still in

existence today. Kelley timely appealed.'

                                               11

                                               A

        We review de novo a trial court's order granting summary judgment,

performing the same inquiry as the trial court. MacMeekin v. Low Income Hous.

Inst., Inc., 111 Wn. App. 188, 195, 45 P.3d 570 (2002). An order granting

summary judgment may be entered when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In

reviewing a summary judgment order, we view the facts and all reasonable

inferences therefrom in the light most favorable to the nonmoving party.

Holmquist v. Kina County, 182 Wn. App. 200, 207, 328 P.3d 1000(2014).

       "The object and function of summary judgment procedure is to avoid a

useless trial. A trial is not useless, but is absolutely necessary where there is a

genuine issue as to any material fact." Barber v. Bankers Life & Cas. Co., 81

Wn.2d 140, 144, 500 P.2d 88(1972). "A material fact is one upon which the

outcome of the litigation depends." Balise v. Underwood,62 Wn.2d 195, 199,

381 P.2d 966 (1963). Importantly, "even if the basic facts are not in dispute, if

the facts are subject to reasonable conflicting inferences, summary judgment is

improper." Southside Tabernacle v. Pentecostal Church of God, Pac. Nw. Dist.,



        I Although the Southworths are named as respondents in this matter, they side with
Kelley on appeal and ask us to conclude that the trial court erred by granting summary judgment.
The Tondas ask us to strike the Southworths' brief. No authority is cited that would compel such
an action. Instead, we will consider the Southworths' contentions to the extent that they are
relevant and properly raised.

                                             -5-
No. 74423-2-1/6


Inc., 32 Wn. App. 814, 821,650 P.2d 231 (1982). Indeed, Isiummary judgment

procedures are not designed to resolve inferential disputes." Sanders v. Day, 2

Wn. App. 393, 398, 468 P.2d 452(1970). "It seems obvious that in situations

where, though evidentiary facts are not in dispute, different inferences may be

drawn therefrom as to ultimate facts such as intent, . . . a summary judgment

would not be warranted." Preston v. Duncan, 55 Wn.2d 678, 681-82, 349 P.2d

605 (1960); accord Weisert v. University Hosp., 44 Wn. App. 167, 172, 721 P.2d

553(1986).

      The purpose of contract interpretation is to ascertain the intent of the

parties. Roats v. Blakely Island Maint. Comm'n, Inc., 169 Wn. App. 263, 274,

279 P.3d 943(2012). Washington courts "follow the objective manifestation

theory of contracts." Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d

493, 503, 115 P.3d 262(2005). Under this approach, "[w]hen interpreting an

agreement, we focus on the agreement's objective manifestations to ascertain

the parties' intent." Martin v. Smith, 192 Wn. App. 527, 532, 368 P.3d 227,

review denied, 186 Wn.2d 1011 (2016).

      A contract may consist of one or several writings. Smith v. Skone &

Connors Produce, Inc., 107 Wn. App. 199, 206, 26 P.3d 981 (2001). All writings

that are part of the same transaction are interpreted together. RESTATEMENT

(SECOND)OF CONTRACTS § 202(2)(1981).

      [T]he terms of agreement may be expressed in two or more
      separate documents, some of these containing promises and
      statements as to consideration, and others, such as deeds.. .
      embodying performances agreed upon rather than a statement of
      terms to be performed. In every such case, these documents


                                       -6 -
No. 74423-2-1/7


       should be interpreted together, each one assisting in determining
       the meaning intended to be expressed by the others.

5 MARGARET N. KNIFFEN, CORBIN ON CONTRACTS § 24.21, at 216 (1998). Writings

are one indication of the parties' intent, but are not necessarily determinative of

that intent. Indeed, this is why writings—not contracts—are reformed to reflect

the true intent of the parties. W. Coast Pizza Co. v. United Nat'l Ins. Co., 166

Wn. App. 33, 41, 271 P.3d 894(2011)(citing A&A Sign Co. v. Maughan,419

F.2d 1152, 1156 (9th Cir. 1969)).

       In Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222(1990), our

Supreme Court rejected the theory that contract language must be ambiguous

before evidence of the surrounding circumstances is admissible. Accordingly, we

may consider extrinsic evidence to assist us in ascertaining the intent of the

parties in entering into a contract, regardless of whether the language used in the

writings is deemed ambiguous. Hearst Commc'ns, Inc., 154 Wn.2d at 502

("[I]ntent of the contracting parties cannot be interpreted without examining the

context surrounding an instrument's execution." (citing Berg, 115 Wn.2d at 668)).

      The court may consider (1)the subject matter and objective of the
      contract,(2) the circumstances surrounding the making of the
      contract,(3) the subsequent conduct of the parties to the contract,
      (4) the reasonableness of the parties' respective interpretations,(5)
      statements made by the parties in preliminary negotiations,(6)
      usages of trade, and (7)the course of dealing between the parties.

Spectrum Glass Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 129 Wn. App.

303, 311, 119 P.3d 854(2005)(citing Berg, 115 Wn.2d at 666-68). However,

admissible extrinsic evidence does not include:(1)"[e]vidence of a party's

unilateral or subjective intent as to the meaning of a contract word or term;"(2)


                                         7
No. 74423-2-1/8


"[e]vidence that would show an intention independent of the instrument; or"(3)

"[e]vidence that would vary, contradict or modify the written word." Hollis v.

Garwall, Inc., 137 Wn.2d 683, 695, 974 P.2d 836(1999).

       Contract interpretation is a question of fact when a court relies on

inferences drawn from extrinsic evidence, but is a question of law when "(1) the

interpretation does not depend on the use of extrinsic evidence or(2) only one

reasonable inference can be drawn from the extrinsic evidence." Spectrum Glass

Co., 129 Wn. App. at 311. As noted above, summary judgment is inappropriate

when more than one reasonable inference can be drawn from the extrinsic

evidence. Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98, 120, 362

P.3d 974(2015). Similarly, if two or more meanings are reasonable, a question of

fact is presented. GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126, 135, 317

P.3d 1074 (2014).

                                         B

       The pertinent history of the 40-foot strip of land dates back to the early

twentieth century, when it was owned by the Chicago, Milwaukee & St. Paul

Railway Company of Washington (Railroad). During that time, the Railroad was

engaged in a project to expand to the Pacific Northwest. In order to secure the

land necessary for such an expansion, the Railroad entered into a number of

agreements with local governments for the exchange or purchase of land.

Several such agreements occurred between the Railroad and King County.

       In 1907, the Railroad identified several strips of land owned by King

County that it wished to obtain for purposes of constructing a railway from King


                                         8
No. 74423-2-1/9


County to Idaho. The parties subsequently entered into a written agreement to

memorialize the desired exchanges of land. This 1907 writing describes the

county land that the Railroad wished to obtain as well as the obligations and

promises to be carried out by the parties in order to effectuate the desired land

exchanges.

              Whereas, the [Railroad] desires the right to appropriate, use
       and occupy the County road first above described between the
       southerly line of the right of way of a certain "Y" track of the said
       Columbia & Puget Sound Railway, and a point upon Block one (1) of
       the town of Maple Valley, and also desires to discontinue the use of
       that portion of the County road secondly above described. . . upon
       the terms and conditions hereinafter set forth.

(Emphasis added.)

       The remainder of the 1907 writing similarly describes primarily future

obligations, promises, and conditions. However, the writing also contains fleeting

statements of present-tense actions interspersed between the contemplated

obligations to be carried out in the future. The land at issue in this matter is

described by the third paragraph of the 1907 writing.

              1st. The [County] hereby grants to the [Railroad], its
       successors and assigns, upon the performance of the conditions
       hereinafter mentioned, the right, privilege and authority to
       appropriate, use and occupy for railroad purposes a portion of that
       certain County road. . .[description of other land].

             2nd. In consideration of the foregoing agreement, the
      [Railroad] agrees to, and does hereby, dedicate to the [County]for
      highway purposes, a strip of land forty (40)feet in width ...
      [description of other land].

             3rd. The [Railroad] hereby agrees to, and does hereby
      dedicate, to the [County], for highway purposes, a strip of land forty
      (40)feet in width . . .[description of strip of land at issue]... and in
      consideration of such dedication, the [County] agrees to vacate and


                                          9
No. 74423-2-1/10


      'discontinue the use of[other land]; it being the intention hereof to
       discontinue and avoid a grade crossing of the railway ....

              4th. The [Railroad] agrees that it will grade and place in a
       suitable condition for public travel, the strips of land hereinbefore
       agreed to be dedicated for the purposes of County roads as
       aforesaid.

               5th. Attached hereto is a plat showing the portion of the
       County road to be used and appropriated by the [Railroad], and the
       portion of the County road to be discontinued within the lines of the
       right of way of the [Railroad]. . . and the strips of land to be
       dedicated to the [County]for the purposes of County roads. . . .

(Emphasis added.)

       Although the 1907 writing was recorded, it neither purports to be a deed

nor a conveyance. Rather, it concludes that "the parties hereto have caused this

agreement to be executed." (Emphasis added.)

       The following year, the Railroad executed a deed. This 1908 deed states

that the Railroad, "in consideration of one dollar ($1.00)to it in hand paid, and

other considerations, does hereby grant, convey and dedicate to the [County], in

the State of Washington, the following described tracts of land . . . ." The deed

then describes the 40-foot strip of land at issue in this matter. The 1908 deed

continues,

               TO HAVE AND TO HOLD unto the County of King and its
       successors, so long as the said strips of land shall be used for the
       purposes of public roads or highways, and in case such use of said
       strips, or either of them, shall cease, all the right, title and interest
       hereby granted and conveyed shall, as to the strip or strips so
       ceased to be used as foresaid, revert to the [Railroad], its
       successors or assigns.

              This instrument of dedication is executed in pursuance of
       two certain agreements between said railway company and the
       County of King, one dated July 28th, 1907, and recorded April 21st,
       1908, in Volume 572 of Deeds, Page 355, covering tracts Numbers

                                        -10-
No. 74423-2-1/11


        1 and 2, above described, and one dated June 18th, 1907, and
        recorded April 21st, 1908 in Volume 530 of Deeds, page 500
        covering tract Number 3 above described.

Thus, the 1908 deed purports to convey an interest in the same 40-foot strip of

land to the County as was described in the 1907 writing, although this time with

certain conditions and differing terms regarding the use of that land.

        The parties here agree that the County came to have an interest in the 40-

foot strip of land. They dispute, however, by which document of conveyance the

County received that interest. The Tondas contend that the language in the third

paragraph of the 1907 writing was sufficient to convey an interest to the County.

Conversely, Kelley contends that the 1907 agreement was an unenforceable

executory contract and that the County received its interest by means of the 1908

deed. Resolution of this dispute requires us to examine the intent of the parties.

Roats, 169 Wn. App. at 274. In determining the parties' intent, we are not

precluded from considering the circumstances surrounding the contract and the

subsequent acts of the parties. Berg, 115 Wn.2d at 666-67. Moreover, we will

not adopt a contract interpretation that renders part of the contract absurd or

meaningless. Spectrum Glass Co., 129 Wn. App. at 312.

        We first note that the language of the third paragraph of the 1907 writing

appears clear and unambiguous—stating that the Railroad "hereby agrees to,

and does hereby dedicate" the strip of land to the County.2 This language gives


         2 Kelley asserts that the consideration contemplated by the third paragraph failed. Thus,
he contends, any conveyance of land also failed. He cites to nothing in the record to support
such an assertion. In any event, even assuming that the consideration did fail, a conveyance of
land will not be set aside for a failure of consideration. Inv. & Sec. Co. v. Adams, 192 Wash.41,
50, 72 P.2d 288(1937)('[I]n the absence of fraud, a deed or lease of real estate will not be set
aside as for a failure of consideration, on the sole ground that the promises and agreements

                                              - 11-
No. 74423-2-1/12


rise to an inference that the parties intended the 1907 agreement to convey an

interest in land. But our inquiry does not end when encountering perceived

clarity.3 When the specific language of the third paragraph is considered in light

of the entire writing, the intent to presently convey an interest in land becomes

less certain. As discussed above, the 1907 writing primarily contemplates future

obligations and an intent to exchange land. When considered as a whole, the

writing appears to be an exchange of promises.

        The mixed language of the 1907 writing—seemingly contemplating both

present and future conveyances, obligations, and conditions—obfuscates the

intent of the parties. Indeed, although the specific language of the third

paragraph gives rise to an inference that the parties intended to presently convey

an interest in land, the unconditional dedication of land seems out of place when

considered in light of the writing as a whole.

        To aid us in determining the intent of the parties, we next consider the

context of the entire transaction. Particularly illuminating is the subsequent

conduct of the parties. Just one year after entering into an agreement

concerning the disputed 40-foot strip of land, the Railroad caused to be drafted a

deed, executed "in pursuance of" the 1907 agreement, purporting to convey to

the County an interest in that same land. The County then accepted that deed

and caused the deed to be recorded. These overt actions indicate that the


which entered into its execution and were to be performed in futuro have not been performed."
(quoting 4 RULING CASE LAW Cancellation of Instruments § 14, at 500 (1914))).
         3 See, 5 MARGARET N. KNIFFEN, supra,§ 24.7, at 36 ("Before the meaning of words in a
contract can be plain and clear, at least some of the surrounding circumstances must be known;
and proof of the circumstances may make plain and clear a meaning that was not apparent when
in the absence of such proof some other meaning seemed plain and clear.")

                                            -12-
No. 74423-2-1/13


parties did not operate with the understanding that the Railroad had already

dedicated that land to the County in 1907. Rather, such actions give rise to an

inference that the parties intended to convey an interest in the land in 1908.

        The Tondas contend that any competing inference arising from the

existence of the 1908 deed cannot be considered. This is so, they assert,

because such an inference would vary the terms of the 1907 writing and

therefore constitute inadmissible extrinsic evidence. The Tondas' reasoning

rests on the basic principle that one cannot impose conditions on the use of land

after one's interest in that land has already been conveyed. But this assertion

requires us to presuppose that the parties intended to convey an interest in land

in 1907. Inferences drawn from the context of the 1907 agreement and the

subsequent conduct of the parties preclude us from making such an assumption

as a matter of law.4 Indeed, a contract interpretation that ignores the 1908 deed

necessarily renders that document meaningless, contrary to the applicable

principles of contract interpretation. Spectrum Glass Co., 129 Wn. App. at 312.

        The trial court herein granted summary judgment in favor of the Tondas,

concluding that the language of the 1907 writing was effective to convey a right-

of-way to the County and that the 1908 deed, insofar as it purports to place any

restrictions or conditions on the use of that land, is ineffective. In so concluding,




          The Tondas' assertion that competing inferences arising from the 1908 deed cannot be
considered on a motion for summary judgment led to the strange assertion during oral argument
that the 1908 deed would not even be admissible in a trial to resolve the question of whether the
land was conveyed by the 1907 document or by the 1908 document. Wash. Court of Appeals
oral argument, Kelley & Don v. Tonda, No. 74423-2-1 (Jan. 18, 2017), at 16 min. to 16 min., 45
sec.(on file with court).
                                             -13-
No. 74423-2-1/14


the trial court necessarily determined that the existence of the 1908 deed raised

no competing inferences as to the intent of the parties. By ruling thusly, it erred.

       Contract interpretation is a question of fact when extrinsic evidence is

relied on and more than one reasonable inference can be drawn from that

evidence. Spectrum Glass Co., 129 Wn. App. at 311. The language of the 1907

writing, context of the 1907 agreement, and subsequent acts of the parties in

executing a deed and causing that deed to be recorded give rise to competing

inferences. When considered in the light most favorable to the nonmoving party,

we cannot declare that no genuine issues of material fact remain in this matter.

Accordingly, the trial court erred by disregarding the 1908 deed and by granting

summary judgment in favor of the Tondas based solely on the 1907 writing. The

parties' intent in this matter is an issue of fact, unresolvable by summary

judgment.

                                         C

      The parties also dispute the type of interest in land that the County

received from the Railroad. Although we do not decide by which document of

conveyance the County received an interest, it is nevertheless prudent to discuss

those interests in land that are contemplated by the documents here at issue.

      "In general, when construing a deed, the intent of the parties is of

paramount importance and the court's duty to ascertain and enforce." Brown v.

State, 130 Wn.2d 430, 437, 924 P.2d 908 (1996). "So long as" language in a

deed is limiting language that creates a reversionary interest in the grantor.

Wash. State Grange v. Brandt, 136 Wn. App. 138, 150, 148 P.3d 1069 (2006).


                                       -14-
No. 74423-2-1/15


However, such language may convey either a fee or an easement, depending on

the context of the entire agreement. King County v. Squire Inv. Co., 59 Wn. App.

888, 894, 801 P.2d 1022(1990).

       The dedication of a strip of land to serve as a public road or highway

indicates an easement over that land, rather than a fee. See Kiely v. Graves,

173 Wn.2d 926, 934, 271 P.3d 226(2012)("In our many railroad cases, we have

held that when a grant specifies a strip of land is to be used for a particular

purpose, for example as a right-of-way, the grant generally creates an

easement."(citing Brown, 130 Wn.2d at 439-40)).

      "Any deed to a local government specifically for highway, right of
      way, or any public purpose could be interpreted as a dedication
      conveying an easement only. If the intent is to grant a fee interest,
      that intent should be clearly stated and the use should be
      unrestricted or, if the use is a condition, the condition should be
      clearly stated with a specific right of reversion."

Kiely, 173 Wn.2d at 934 (quoting 6 Washington State Bar Association,

Washington Real Property Deskbook § 91.9(1)(3d ed. 2001)).

       The words of conveyance in the 1907 writing give rise to the inference that

the County received an easement. The 1907 writing "dedicate[s]" to the County

a strip of land "for highway purposes." This language is consistent with language

commonly used to grant an easement over land. Moreover, the 1907 writing

contains no clearly stated intent to grant a fee interest. See Kiely, 173 Wn.2d at

932. Accordingly, we are satisfied that—if it is finally determined to be the

document of conveyance—the 1907 agreement contemplates the dedication of

an easement.



                                        -15-
No. 74423-2-1/16


         The interest contemplated by the 1908 deed is not so apparent.5 The

1908 deed is not substantially in the form of a statutory deed.6 Thus, no

presumption arises that the deed conveyed a fee. Ray v. King County, 120 Wn.

App. 564, 576, 86 P.3d 183(2004). The 1908 deed uses the determinable

language "so long as" and "revert to the [Railroad]," commonly used when

conveying a determinable fee, but it also expresses a purpose for the

conveyance, rather than a mere restriction on the use of the land. See Pac. Iron

Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 505, 111 P. 578

(1910)(conveyance "forever, for railway purposes, but if it should cease to be



          5 It is clear, however, that the 1908 deed does not convey a fee simple subject to
condition subsequent, as the Tondas claim. A grant of a fee simple subject to condition
subsequent contains the words "subject to" or "but if coupled with the words "right of re-entry" or
"right to enter and retake" and further requires that the grantor re-enter and retake the land upon
failure of the specified condition. Metro. Park Dist. of Tacoma v. Rioney's Unknown Heirs, 65
Wn.2d 788, 790-91, 399 P.2d 516(1965); 17 WILLIAM B. STOEBUCK & JOHN W.WEAVER,
WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 1.11, at 15(2d ed. 2004). None of these
words are present in the 1908 deed. Thus, the Railroad or its successors in interest were not
required to take any action upon the failure of the condition to trigger or facilitate the reversion of
the interest to the grantor or its successors.
          6 Washington law during 1908 provided for three types of deeds:
                     Form of Warranty Deed. §3. That warranty deeds for the conveyance
          of land, may be substantially in the following form: The grantor (here insert the
          name or names and place of residence,) for and in consideration of(here insert
          consideration), in hand paid, convey and warrant to (here insert the grantee's
          name or names), the following described real estate (here insert description),
          situated in the county of , State of Washington....
                       . Form of Bargain and Sale Deed. §4. Bargain and sale deeds for
          the conveyance of land may be substantially in the following form: The grantor
         (here insert name or names and place of residence), for(and) in consideration of
         (here insert consideration) in hand paid, bargain, sell and convey to (here insert
          the grantee's name or names,) the following described real estate (here insert
          description,) situated in the county of , State of Washington. . . .
                    ... Form of Quit Claim Deed. §5. Quit-claim deeds may be in
          substance in the following form: The grantor(here insert name or names and
          place of residences), for the consideration (here insert consideration,) convey
          and quit-claim to (here insert grantee's name or names)all interest in the
          following described real estate (here insert description), situated in the county of
               State of Washington....
PIERCE'S CODE § 4451-53(Supp. 1905). Here, the 1908 deed does not use the words "warrant,"
"bargain," or "quit-claim." Rather, it "grant[s], convey[s] and dedicate[s]" the land to the County.
Thus, the 1908 deed is not substantially in the form of any statutory deed.
                                                - 16 -
No. 74423-2-1/17


used for a railway the said premises shall revert to said grantors," created an

easement rather than a determinable fee). The character of the land and

circumstances surrounding the 1908 deed also give rise to an inference that the

parties contemplated an easement. The conveyance is for a strip of land for

highway purposes—out of character for a fee conveyance—and was executed in

pursuance of the 1907 writing, which also contemplated an easement.

        The language of the 1908 deed and the context surrounding the deed give

rise to competing inferences regarding the type of interest that was conveyed by

the Railroad.7 Here, as before, the intent of the parties to convey an easement

or a fee is a question of fact that may be illuminated by additional evidence

presented on remand. Accordingly, we do not conclude as a matter of law the

precise interest in land contemplated by the 1908 deed.

                                                   III

        Kelley next contends that the trial court erred by concluding that the

County's interest in the strip of land can only be extinguished by complying with a

statutory vacation process. Even in the absence of a determination of the

precise interest the County received, it is clear the statutory vacation process8

discussed by the trial court is not applicable.

        The County's interest in the strip of land, whether an easement or

determinable fee, cannot exceed the interest granted to it by the documents of

conveyance. The Railroad or its successors in interest thus retains either a



       7 Again, this issue only arises if, on remand, the trier of fact finds that the 1908 deed was
the document of conveyance.
       8 RCW 36.87.010, .060; King County Code 14.40.010,.015.

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possessory interest encumbered by a servitude or a possibility of reverter,

respectively. A statute which acts to destroy that interest would constitute the

taking of a property interest without just compensation. Cf. WASH. CONST. art. 1, §

16; see NoIlan v. Cal. Coastal Comm'n,483 U.S. 825, 831-32, 107 S. Ct. 3141,

97 L. Ed. 2d 677(1987)(concluding that a statutory scheme requiring property

owners to make an easement across their property available to the public on a

permanent basis constitutes a taking); see also Lawson v. State, 107 Wn.2d 444,

457, 730 P.2d 1308(1986)(concluding that the plaintiffs held reversionary

interests in land over which an easement was granted, requiring the payment of

just compensation before the land could be acquired by the county).

       Nelson v. Pacific County, 36 Wn. App. 17, 671 P.2d 785(1983), upon

which the trial court relied, is inapt. The right-of-way in dispute in Nelson was

unconditionally dedicated to the public by way of a plat, and the issue therein

was whether the county's prior stipulation that it had no interest in that right-of-

way constituted an abandonment of the right-of-way. We concluded in Nelson

that the county could not abandon a right-of-way held in trust for the public in

such a manner. 36 Wn. App. at 23 (citing Commercial Waterway Dist. No. 1 of

King County v. Permanente Cement Co., 61 Wn.2d 509, 513, 379 P.2d 178

(1963)(concluding that an easement held in trust for the public cannot be

vacated by adverse possession)). Our conclusion in Nelson in no way forecloses

the possibility that a county's conditional interest in land might terminate by

operation of law upon failure of a required condition. Indeed, if this were not the




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case, virtually any conditions placed on a county's use of conveyed land would

be ineffective.

       Although no formal vacation proceeding is required for the County's

interest in the strip of land to revert back to the Railroad or its successors in

interest, a material issue of fact remains as to whether the County's interest has

otherwise failed. Kelley contends that it has. Yet, many of Kelley's assertions

regarding the history of the use of the strip of land are unsupported by the record

before us.

       First, Kelley asserts that the County has admitted that the public no longer

uses the right-of-way. However, the letter from the County that he cites in

support of this assertion says nothing of the sort. Rather, it states the opposite.

       In 1930, when the current alignment of Dorre Don Way... was
       established in your area, the gravel road remained open to the
       public as part of a short public loop-road starting and ending along
       Dorre Don Road. . . .
       Over the years, the former loop-road has seen reduced public use
       such that the only portion of the former loop-road that has remained
       open to vehicular traffic is your privately maintained gravel drive.

(Emphasis added.) The letter continues,"The County does not recognize the

restrictions and provisions included in the private easement recorded over the

public right-of-way since the easement was recorded over pre-existing public

right-of-way."

       The mere fact that the right-of-way is used almost exclusively by the

residents who live alongside it does not mean that the County's interest has been

extinguished. See Foster v. Bullock, 184 Wash. 254, 259, 50 P.2d 892(1935)

("The fact that. . . the stretch here involved forms a Cu!de sac[] does not deprive

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No. 74423-2-1/20


it of its character as a public highway."). Indeed, the County concluded as

recently as 2009(by denying the vacation request) that the right-of-way has

value as part of the County road system.

        Kelley also contends that the County's interest in the strip of land was

vacated by its failure to "open" the right-of-way. Yet Kelley provides no authority

requiring the County to open the right-of-way in order to preserve its interest as a

matter of law.9 Moreover, Kelley's assertion that the right-of-way was never

opened rests not on any evidence in the record but, rather, on the absence of

evidence to the contrary. This issue was not reached by the trial court, and the

record on appeal is insufficient to resolve it as a matter of law.

        As the trial court granted summary judgment in favor of the Tondas based

on the 1907 agreement, and concluded that a formal vacation process was

required before the County's interest in the strip of land could be extinguished, it

did not reach the issue of whether the County's interest in the right-of-way has

otherwise failed. As this issue was not considered by the trial court, and the

record on appeal is insufficient to reach a conclusion as a matter of law, it is a

matter for the trial court to resolve on remand.19


         9 The authority presumably relied on by Kelley that requires counties to "open" public
roads within five years of their dedication is RCW 36.87.090. Prior to 1909, any county road
which remained unopened for public use for a period of five years was vacated as a matter of
law. Leonard v. Pierce County, 116 Wn. App. 60,64,65 P.3d 28(2003). In 1909, the legislature
added a proviso exempting public roads and highways conveyed by deed to any county, city, or
town. In cases where the five-year period had not run by the time the 1909 proviso was added,
the proviso acted to save a county's interest in the road. Leonard, 116 Wn. App. at 65. Thus, the
County's interest in the right-of-way at issue here, which was conveyed by deed in 1908, would
have been saved by the 1909 proviso.
          10 Kelley also contends that the trial court erred by concluding that neither claim
preclusion nor issue preclusion prevent the current litigation. We disagree. In 1995, the County
agreed to a stipulated judgment declaring that the County's interest in a 16-foot alleyway that
partially intersects the current location of the 40-foot right-of-way had been extinguished by

                                             - 20 -
No. 74423-2-1/21


                                                  IV

        Finally, it is prudent to address the County's position taken on appeal in

this matter.

        The property that Kelley and the Southworths now own was originally sold

to their predecessors in interest pursuant to a tax foreclosure sale. Kelley argued

before the trial court that the County did not expressly claim an interest in the

right-of-way during these tax foreclosure sales, which, he asserted, was evidence

that the right-of-way did not exist. The County moved for summary judgment,

asking the trial court to conclude that the merger doctrine—which, the County

asserted, was implicated by Kelley's claims—did not apply to invalidate the

County's interest in the right-of-way. The trial court granted the County's motion

and Kelley did not appeal that order.

        On appeal from the trial court's grant of summary judgment in favor of the

Tondas, the County has taken the perplexing position that its interest in the right-

of-way is settled pursuant to the trial court's decision on the merger issue. To the

contrary, the County's interest in the right-of-way continues to be the center of

this litigation and the County will remain an indispensable party—with its interest

in the land still at issue—on remand.




operation of law. But the alleyway was vacated by operation of law before the 40-foot right-of-
way was ever conveyed to the County. The 1995 stipulated judgment did not involve the same
facts, legal principles, or parties as are involved in this dispute. Thus, claim and issue preclusion
are not applicable herein. See, e.g., Lemond v. Dep't of Licensing, 143 Wn. App. 797, 805, 180
P.3d 829(2008); Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 330, 941 P.2d 1108(1997).

                                                 21
No. 74423-2-1/22


      Reversed and remanded.




We concur:



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