60 Wash. 502 | Wash. | 1910
This is an appeal from a judgment of the superior court of King county, reversing a decision of the board of state land commissioners, which awarded to the appellant the preference right to purchase certain shore lands of the first class on Lake Union. By §§ 6750 and 6754, Rem. & Bal. Code, the preference right to purchase tide and shore lands of the first class is granted, for a limited period, to the following persons, and in the following order: First, to the owners of valuable improvements in actual use, prior to the 26th day of March, 1890, for commerce, trade, residence or business; second, to bona fide purchasers from the abutting upland owners; and third, to the abutting upland ■owners.' The respondent claims the preference right solely as an improver of the shore lands, while the appellant claims as an improver, an upland owner, and as a bona fide purchaser from the upland owner.
In view of the singleness of its claim, we will first consider the case presented by the respondent. The facts, in brief, are as follows: Some time prior to the 24th day of December, 1889, Goddard Brothers, the predecessors in interest of the respondent, Pacific Iron Works, purchased lots 10 and 11 of Denny & Hoyt’s Supplemental plat to the city of Seattle, and constructed a foundry and machine shops thereon. At or about the same time, one Mary A. F. Phillips, predecessor in interest of the appellant, Bryant Lumber & Shingle Mill Company, purchased lots 8 and 9 of the same plat, and
We will next consider the basis of the appellant’s claim. Whether it acquired a preference right by reason of the improvements which were destroyed by fire on December %4>, 1889, we deem it unnecessary to inquire, nor will we inquire whether any part of lots 8 and 9 is upland as claimed. This leaves only the question of its rights as a purchaser from the abutting upland owner. The predecessor in interest of the appellant was confessedly a purchaser in good faith from the upland owners, unless her grantors ceased to be upland owners prior to the date of the conveyance under which the appellant claims, by reason of a grant of a right of way to the Seattle Lake Shore & Eastern Railway Company. The facts in relation to this latter grant are as follows: On the 6th day of September, 1887, Thomas Burke and wife, owners of the abutting upland, conveyed a right of way to the Seattle Lake Shore & Eastern Railway Company along the shore of Lake Union. Immediately in front of the lots in question, the right of way extended to or below the line of ordinary high water in the lake. The right of way deed remised, released, and forever quitclaimed to the company, a right of way 100 feet in width “to have and to hold the said premises with the appurtenances unto the said party of the second part and to its successors and assigns forever, for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors, their heirs, executors, administrators or assigns.” If this were a
While some of the language contained in the deed might imply such a grant, when the instrument is construed as a whole and in the light of the purpose for which' the grant was made, it is a grant of a right of way or easement and nothing more.
“The grant of a right of way to a railroad company is the grant of an easement merely and the fee of the soil remains in the grantor. Although the language used in the granting part of the deed and in the habendum is appropriate, and that commonly used to convey the fee, yet the clause descriptive of the use to be made of the land may so limit or qualify the grant as to change it from a fee to an easement.” 14 Cyc. 1162; Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 Atl. 522.
Such being the nature of the grant, it neither conferred a preference right to purchase the adjacent shore lands on the grantee, nor deprived the grantors of their rights as upland owners. Gifford v. Horton, 54 Wash. 595, 103 Pac. 988, and cases cited.
We are therefore of opinion that the appellant has the preference right to purchase the shore lands in question as a bona fide purchaser from the abutting upland owners, and the judgment of the court below is accordingly reversed, with directions to enter judgment affirming the decision of the board of state land commissioners.
Dunbae, Ceow; Moeeis, and Chadwick, JJ., concur.