Citation. 22 Ill.46 Wn. App. 1, 728 P.2d 1091 (Ct. App. 1986)
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The C.B. Dodge Company, by quitclaim deed in 1908, conveyed to the City of Seattle a narrow strip of land which bordered Lake Washington, so that the city could construct what is now Lake Washington Boulevard. The deed was subject to a condition that the grantor retained, for its successors and assigns, the right to build and maintain a boathouse along the shore of Lake Washington, which the city was responsible for acquiring the land for the boathouse and allowing the building and use of the boathouse.
Synopsis of Rule of Law.
The City of Seattle took title to the property in fee simple subject to a condition subsequent, and the denial of the successor’s right to property upon which to build a boathouse constituted an unconstitutional taking without compensation by inverse condemnation.
Facts.
The C.B. Dodge Company, by quitclaim deed in 1908, conveyed to the City of Seattle a narrow strip of land which bordered Lake Washington, so that the city could construct what is now Lake Washington Boulevard. The deed was subject to a condition that the grantor retained, for its successors and assigns, the right to build and maintain a boathouse along the shore of Lake Washington, which the city was responsible for acquiring the land for the boathouse and allowing the building and use of the boathouse. Between the years of 1908 and 1983 neither C.B. Dodge nor any successors had asked the city to allow them to construct a boathouse on city land. The Court found that the evidence supported a conclusion of fact that no such boathouse was ever constructed. In 1983 the Martins and two other successors made a demand of the city for the land upon which to construct a boathouse, which the city refused. Thereafter, the Plaintiffs brought suit to exercise their right to forfeit the cit
y’s interest in the land on which Lake Washington Boulevard is constructed, to obtain a declaratory judgment as to the validity of the deed and their election to forfeit or, in the alternative, for damages. The trial court found that the deed was valid, that the condition in the deed was breached, and that the Plaintiffs were entitled to $50,000 in damages. However, the trial court ruled that the Plaintiffs did not have a right to reenter the land or forfeit the city’s interest in the land, plus, the trial court denied the Plaintiff’s attorney fees. The city appealed on the grounds that the 1908 deed should not have continuing validity as to the condition subsequent. The Plaintiffs cross-appealed on the grounds that the damages were not adequate, that they could not reenter the land, and that their attorney fees were denied.
Issue.
Are the provisions in the 1908 deed legally sufficient to vest in the successors of the grantor rights which may not be unilaterally denied by the grantee?
Held.
Yes. The city cannot prohibit the Plaintiffs from building a boathouse without paying just compensation, and the denial of that right is an unconstitutional taking by inverse condemnation. The Plaintiffs are awarded $60,000 as damages and the case is remanded to the trial court for a determination of attorneys fees and expert witness fees.
The condition subsequent in the deed is valid due to the fact that the language of the deed reserved the right to build a boathouse for the grantor and its successors and assigns. This is true even though the right was not sought to be exercised from 1908 until 1983, and contrary to prior decisions which found that a lack of exercise of a right of forfeiture within a reasonable time caused the right to be waived.
The city urged a defense of impossibility which is herein rejected by the Court. The city noted that Lake Washington had been lowered by the state and that the new land created was granted to the city for the purpose of building a park and therefore, to permit the Plaintiffs to build a boathouse on the shoreline is impossible. The Court found that the facts of the case indicated that the parties to the 1908 deed were aware of the plans to lower the lake and that impossibility would not lie as a defense.
The Plaintiffs asserted a vested right to build a boathouse on the shore of Lake Washington and that the city’s unilateral denial of that right amounted to an unconstitutional taking of property without just compensation. The Court found that the maintenance and use of a boathouse fell within a broad definition of property which includes the unrestricted right to use , enjoy and dispose of the land.
That the Plaintiffs’ suit was therefore in the nature of inverse condemnation. The Court found the proper measure of damages to be full and fair compensation for the loss of the property right. The trial court found that the right to have a boathouse was worth $60,000, but reduced the amount by $10,000 to reflect the other parties’ interest in the boathouse. The Court held this to be improper reduction of damages and that the amount awarded to Plaintiffs should be $60,000. Also, the Court held that it was error to refuse the Plaintiffs’ attorney fees.
Discussion.
This is an example of the court giving credence to the “magic words” of successors and assigns in the 1908 deed. One should consider if the intent of the City of Seattle was to be forever liable to allow the successors and assigns of the C.B. Dodge Company the right to build a boathouse on city land. This is an example of strict construction of terms within a deed.
