Bryan Kelley And Dorre Don Llc v. Beverly L. Tonda
198 Wash. App. 303
Wash. Ct. App. U2017Background
- Dispute over a 40-foot strip (right-of-way) adjacent to private properties in Maple Valley; driveway in the strip provides access to Dorre Don Way and a public trail.
- King County asserts an interest in the strip dating to early 20th-century transactions between the Chicago, Milwaukee & St. Paul Railway Co. (Railroad) and King County: a 1907 written agreement and a 1908 deed.
- Tondas argued the 1907 agreement itself dedicated the strip to the County (creating a public right-of-way); Kelley (and the Southworths) argued the 1907 document was executory and the County’s interest arose from the 1908 deed.
- The trial court granted summary judgment for the Tondas, concluding the 1907 writing conveyed the right-of-way and that the 1908 deed’s restrictions were ineffective; Kelley appealed.
- The Court of Appeals reversed and remanded, holding that extrinsic evidence and the 1908 deed create competing reasonable inferences about the parties’ intent and the nature/timing of the conveyance, so summary judgment was improper.
Issues
| Issue | Plaintiff's Argument (Kelley) | Defendant's Argument (Tonda) | Held |
|---|---|---|---|
| Whether the 1907 writing conveyed a present interest in the strip to King County | 1907 agreement was executory; County’s interest arose from the 1908 deed | 1907 language (“hereby agrees to, and does hereby dedicate”) effectuated a present conveyance | Reversed: genuine factual dispute — reasonable competing inferences exist; summary judgment improper |
| Whether the 1908 deed may be considered when interpreting the 1907 writing | 1908 deed is irrelevant or inadmissible extrinsic evidence that would vary the 1907 writing | 1908 deed and parties’ subsequent conduct are probative of intent and admissible | Court may consider 1908 deed and conduct; ignoring it would render the deed meaningless; factual inquiry required |
| Nature of interest conveyed (easement vs. fee/determinable fee) | County’s interest had been extinguished / was limited | 1907/1908 documents created a public highway interest; characterization varies by document and context | Not decided as a matter of law; documents give rise to competing inferences — question of fact for trial |
| Whether County’s interest can be extinguished only by statutory vacation | County’s interest was extinguished by nonuse or other operation of law without formal vacation | Trial court erred to treat statutory vacation as sole means; reversion could occur if condition failed | Court: statutory vacation is not the exclusive mechanism; whether County’s interest failed is a factual question for remand |
Key Cases Cited
- Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493 (extrinsic evidence admissible to show intent and context of contract)
- Berg v. Hudesman, 115 Wn.2d 657 (rejects rule that contract language must be ambiguous before considering surrounding circumstances)
- Spectrum Glass Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 129 Wn. App. 303 (contract interpretation and when questions of fact exist based on extrinsic evidence)
- Kiely v. Graves, 173 Wn.2d 926 (dedication language to public for highway purposes generally indicates an easement)
- Brown v. State, 130 Wn.2d 430 (deed construction: ascertain and enforce intent of parties)