Appeal from a judgment of the superior court for King
county, McDonald, J., entered July 3, 1948, upon findings,
dismissing a condemnation proceeding on the ground that
the petitioner already had full title to the property involved
for the purposes desired. Affirmed.
Karr, Karr & Tuttle, Carl G. Koch, and Robert K. Keller,
Charles O. Carroll and L. C. Brodbeck, for respondent.
STEINERT, J.-Petitioner, King County, instituted proceedings
in eminent domain to acquire full and unrestricted title
to certain described real property, situated near Lake
Sawyer, within the county, and consisting of 3.5 acres, more
or less, designated as tract 92 on a plat of that general area.
The public objects and uses for which this land was sought
to be condemned are, as declared in the county's petition,
"a public park, camping, scenic view and recreational site
for public use and enjoyment."
Hanson Investment Company, a corporation, named as
respondent in the petition, entered a formal appearance
through its attorney. At about the same time, W. Frank
Horne and Marie I. Horne, his wife, having obtained leave
of court, filed their complaint in intervention in which they
claimed a fee interest in the property through an alleged
Thereafter, upon a hearing duly had, the trial court
entered its order adjudicating public use and necessity with
respect to the land described in the petition and setting a
time for hearing on the question of damages as compensation
for its appropriation. On that same day, George A. Eipper
and fifty-seven other owners of property in the general
vicinity of tract 92 were permitted to intervene in the action
for the purpose of ascertaining and determining any rights
which they might have to damages occasioned by the
condemnation of the property for the uses stated in the
On the day set for the second hearing, but before impaneling
a jury to assess the amount of damages, the trial court
heard legal argument with relation to the respective property
interests of the parties to, and the interveners in, the
action. Upon conclusion of the argument, and after full
consideration of the matter, the trial court rendered its
memorandum opinion wherein it expressed the view that
there was no necessity for the condemnation suit, in as
much as, under the law, King county already had full title
to the property for use as a public park, by virtue of certain
prior instruments of conveyance and dedication, and that
neither Hanson Investment Company nor any of the interveners
had any residuary right, title, or interest in tract 92
which would entitle them to an award of damages in condemnation
for the objects and uses stated in the petition. In
accordance with its expressed view, the trial court made
findings of fact and conclusions of law and entered judgment
dismissing the action.
Interveners W. Frank Horne and Marie I. Horne thereupon
sought to have this court review, by writ of certiorari,
the findings and conclusions previously made and entered by
the trial court. That proceeding was disposed of in this
court by an opinion directing that the writ be quashed, on
the ground and for the reason that the judgment of
dismissal entered by the trial court in the condemnation action
was a final adjudication of the rights of the interveners and
therefore the proper remedy was by appeal, rather than by
writ of certiorari. State ex rel. Horne v. McDonald, 32 Wn.2d 272,
201 P.2d 723. These same interveners thereupon perfected
their present appeal in the condemnation proceeding, and
they are now the only parties prosecuting such appeal.
The evidence adduced in the trial court is documentary
only and presents to this court an undisputed factual
situation, for a determination of the law applicable thereto.
On January 5, 1932, Hanson Investment Company, a
corporation, to which we shall hereinafter refer as Hanson,
executed and delivered to King county, the respondent upon
this appeal, a quitclaim deed, the record copy of which
contains the following language:
"The grantor herein Hanson Investment Company for the
consideration of One & 00/100 Dollars and also of benefits
to accrue. to *them* by reason of laying out and establishing
a public road through their property, and which is hereinafter
described, conveys, releases, and quit-claims to the
County of King, State of Washington, for use of the public
forever, as a public road and highway, all interest in the
following described real estate, viz:
The westerly portion of the property described in, and
conveyed by, this deed consists of a narrow rectangular
strip of ground, uniform in width. The easterly portion,
however, extending to the shore of Lake Sawyer, is
irregular in shape and includes a far greater area than would
reasonably be required for the construction of a public road
"A strip of land in Govt. Lot 5, Section 4, Twp. 21 N. R. 6
E. W. M., described as follows:
"[Description by metes and bounds.] Right-of-way A. J.
Hanson Road. situated in the County of King, State of
Thereafter, on May 12, 1939, Hanson executed and dedicated
a plat of "North Shore of Lake Sawyer." On this plat
the land previously deeded to King county in the manner
above set forth is delineated as consisting of two contiguous
tracts. The southernmost tract appears as a uniform
sixty-foot strip of land, extending from the west boundary of
government lot 5 in an easterly direction to the shore line
of Lake Sawyer, and is designated on the plat as an
"Existing County Road." The other tract appears approximately
triangular in shape, its northwesterly dimension being three
hundred seventy-five feet, its southerly dimension six
hundred thirty feet, and its shore line along Lake Sawyer,
constituting its third, or northeasterly, dimension, being
about five hundred forty feet; this triangular tract lies
immediately north of the easterly portion of the sixty-foot
strip above mentioned, and is designated on the plat as tract
92. By inscription appearing upon the face of the plat as
recorded, and within the designated lineal boundaries of tract
92, the dedicatory instrument recites that this tract was
"Deeded to King County as Public Park Jan. 5, 1932."
However, so far as the record discloses, the only deed to King
county from Hanson under date of January 5, 1932, is the one
set forth above.
The pertinent language of dedication appearing upon the
plat is as follows:
"KNOW ALL MEN BY THESE PRESENTS-THAT WE THE UNDERSIGNED
HANSON INVESTMENT COMPANY OWNERS IN FEE SIMPLE OF THE LAND
HEREBY PLATTED, HEREBY DECLARE THIS PLAT AND DEDICATE TO THE
USE OF THE PUBLIC FOREVER, ALL STREETS SHOWN HEREON AND THE
USE THEREOF FOR ALL PUBLIC PURPOSES NOT INCONSISTENT WITH THE
USE. THEREOF FOR PUBLIC HIGHWAY PURPOSES: ALSO ALL PARKS AND
SEWER EASEMENTS: . . ."
This plat was examined and approved by the board of
county commissioners of King county and by the King
county planning commission on August 1, 1939, and, on the
following day, was filed for record at the request of King
county. The only portion of the plat which is designated as
a park is tract 92, such designation being by way of the
recital hereinabove quoted.
On October 16, 1943, Hanson conveyed tracts 87, 88, 89,
90, and 91, plat of North Shore of Lake Sawyer, to the
appellants herein, W. Frank Horne and Marie I. Horne.
Tract 91 abuts tract 92 on the west, and it is upon the
ownership of tract 91 that appellants have based their claim
to a fee interest in tract 92.
To justify their claim for an award of damages in this
proceeding, appellants have advanced an elaborate and
ingenious argument. They contend that, by the deed of
January 5, 1932, Hanson conveyed what is now tract 92 to King
county for road purposes *only*; that because of such
expressed limitation of use, the deed created a determinable
fee simple estate in King county, with the possibility of
reverter remaining in the grantor, Hanson; that since the deed
contained no provision requiring re-entry by the grantor
in order to terminate the grantee's interest in the land,
the conveyance constitutes what is technically known as
a determinable, defeasible, or qualified fee, subject to be
defeated absolutely and immediately upon the happening
of a designated event; that the contemplated use of the
property for park purposes is inconsistent with the use
thereof for road purposes as granted by the deed, and any
attempted use of the property for any such inconsistent
purpose would be unlawful; that the condemnation
proceedings brought by the county, upon the resolution of
the county commissioners, evidenced the intention of the
county to abandon its right to use the property for road
purposes; that, in consequence of the commencement and
maintenance of such condemnation proceedings, a reverter
of the county's defeasible estate immediately took place;
that, by virtue of the deed from Hanson to appellants in
1943, conveying tract 91, which is the only privately owned
land abutting upon tract 92, the possibility of reverter
referred to above passed from Hanson to appellants; and that,
consequently, appellants, as sole abutting owners, are
entitled to a jury award for damages measured by the market
value of their present fee simple estate in tract 92.
We are unable to agree with this chain of reasoning'
In the first place, the deed of January 5, 1932, from
Hanson to King county, does not say that the land is conveyed
for road purposes only, as appellants would construe its
phraseology, but simply that it is "for use of the public
forever, as a public road and highway."
In the next place, the construction to be placed upon the
deed here in question will not support the contention that it
created, in itself, a determinable, defeasible, or qualified fee,
subject to a possibility of reverter.
 A determinable, qualified, or defeasible fee is an
estate which is limited to a person and his heirs, with a
qualification annexed or subjoined thereto, by which it is
provided that the fee must determine whenever that
qualification is at an end. Ballentine's Law Dictionary 346, 370,
1059; Bouvier's Law Dictionary, Vol. 1, 857 and Vol. 3, 2776.
As stated in 4 Thompson, Real Property (Perm. ed.) 709,
SS 2171, a determinable or qualified fee has all the attributes
of a fee simple, except that it is subject to be defeated by the
happening of the condition which is to terminate the estate,
the grantor retaining at most a mere possibility of reverter.
This court has so held in Loose v. Locke, 25 Wn.2d 599,
171 P.2d 849, and other cases therein cited.
It will be noted that the deed here involved expressly
states that the grantor "conveys" *all interest* in the land to
King county. It will also be noted that the deed does not, of
its own force, make the estate held thereunder by the county
one of an expressly conditional nature, nor does it contain
any provision, express or implied, to the effect that the
grantee's estate was to terminate upon the happening of
any specified event.
 It is the almost universal rule that, in order to make
an estate conditional, the words used in the deed must
clearly indicate such an intent, either by express terms or
by necessary implication from the language used. 4 Thompson,
Real Property (Perm. ed.) 563, SS 2037; 1 Tiffany, Real
Property (3d ed.) 309, SS 192; 19 Am. Jur. 492, Estates, SS 32;
26 C. J. S. 479, Deeds, SS 147.
 It is also the settled rule in this state, as elsewhere,
that a deed which by its terms conveys the land to a grantee
operates as a grant of the fee, although it may also contain
a recital designating, or even restricting, the use to which
the land may be put. Aumiller v. Dash, 51 Wash. 520, 99
Pac. 583; Loose v., Locke, supra, and cases therein cited;
Fitzgerald v. Modoc County, 164 Cal. 493, 129 Pac. 794, 44
L. R. A. (N.S.) 1229; Holloman v. Board of Education, 168
Ga. 359, 147 S. E. 882; Wright & Taylor v. County Board of
Education, 151 Ky. 560, 152 S. W. 543; Texas & Pacific R.
Co. v. Martin, 123 Tex. 383, 71 S. W. (2d) 867, writ of
certiorari denied in 293 U.S. 598, 79 L. Ed. 691, 55 S. Ct. 121;
2 Thompson, Real Property (Perm. ed.) 8, SS 459; 19 Am.
Jur. 496, Estates, SS 36; 26 C. J. S. 508, Deeds, SS 162.
The effect of such recitals in a deed of conveyance is well
stated in 19 Am. Jur. 536, Estates, SS 71, as follows:
"A condition will not be raised by implication from a
mere declaration in the deed that the grant is made for a
special and particular purpose without being coupled with
words appropriate to make such a condition. Such recitals
are usually construed as giving rise, at most, to an implied
covenant that the grantee will use the property only for
the specified purpose. They are merely to restrain the
generality of the preceding clauses; and in the case of sales
to municipal and other corporations, they are considered
as having been inserted merely for the purpose of showing
the grantee's authority to take, even though the
authorization under which the land is taken itself limits its
use to the purpose specified."
 Without attempting to define, by technical terminology,
the exact type of estate taken by King county under the
deed of 1932, we are convinced that the parties intended
that the deed convey, and that the grantee take, the highest
estate that a municipal corporation is empowered to hold.
Any "reverter," or possibility thereof, must therefore come
about through operation of law peculiar to land tenure for
specified purposes by such municipal bodies, and not through
any conditional limitation contained in the deed itself.
 Appellants seemingly recognize that their claim to
reverter, or possibility of reverter, must arise by operation
of law, for their principal contention, as contained in their
expressed chain of reasoning, is that the condemnation
proceedings brought by the county evidenced the county's
intention to abandon its right to use the property for road
purposes, and that, in consequence of the commencement
and maintenance of such proceedings, a reverter of the
county's defeasible estate immediately took place. We do
not agree with either the premise or the conclusion of this
One of the cases strongly relied upon by appellants is
Johnston v. Medina Imp. Club, 10 Wn.2d 44,116 P.2d 272,
which was an action to quiet title. King county, upon
being joined as a defendant in that action, filed a disclaimer
of interest in the property, and this court held that such
disclaimer operated as an abandonment or relinquishment
which terminated the rights of the public. The pertinent
language of the decision reads:
"In disclaiming all interest in the dedicated property, the
county, in effect, may be said to have either (1) abandoned
the property or (2) refused to execute the express specific
purpose of the dedication. By the weight of authority,
where property dedicated to the public is abandoned or
relinquished, the public's rights are terminated and the
land by operation of law reverts to the dedicator."
By its petition in eminent domain, King county, far from
indicating an intention to abandon or vacate any portion
of the premises conveyed by the deed of 1932, merely
sought to appropriate the unused portion of the property to
additional specified purposes. It is undisputed that the
existing road is still in use and has in no sense been actually
abandoned. There was no disclaimer by the county, and
hence it cannot be inferred that the county abandoned the
property or refused to execute the express specific purpose
of the original grant; in fact, every inference to be drawn
from the circumstances presented in this case is to the
In further support of their contention that the fee title
to tract 92 has reverted to them by operation of law,
appellants cite a number of cases involving easements in
streets by virtue of dedicatory plats, and subsequent vacations
by the grantee municipalities.
Those cases are not in point, for the reason that in the
present instance there is not the slightest suggestion that
any existing road or street, abutting any property now
owned by appellants, has been, or will be, vacated by the
appropriation of tract 92 to the purposes herein sought, or
by any other act of the county.
Concluding our present reference to appellants'
argument, we may say further that we do not agree with their
contention that the use of tract 92 for park purposes is,
under the circumstances of this case, inconsistent with the
grant for road purposes as contained in the deed. We shall
refer to this point more in detail a little later herein.
After due consideration of appellants' contentions and
argument, we have come to the conclusion and now hold
that, even though some infirmity may possibly now inhere,
or may in the future develop, in the title presently held
by King county under the deed of 1932, any possible
rights in the nature of reversionary interests in either
Hanson or the present abutting owners, accruing by
operation of law, have not as yet come into existence.
Appellants have acquired no title to, nor interest in, tract 92
and, consequently, are not entitled to any damages arising
out of condemnation of the tract, under any of the contentions
here advanced by them.
This conclusion would, ordinarily, be sufficient to dispose
of this case.
However, there still remains the question whether King
county has the legal right to use tract 92 for *park purposes*,
and, in the interest of all parties concerned, including the
public generally, it is necessary that we decide that
question and definitely determine the rights of all such parties,
thereby obviating further litigation upon that same subject.
If King county now has the right to use tract 92 for
park purposes, it must, of course, be by virtue of the deed
of January 5, 1932, from Hanson to the county, supplemented
by the terms, provisions, and effect of the duly
executed, accepted, and recorded Hanson plat of May 12,
Throughout appellants' brief, various references are
made to a former proceeding brought by the appellants
against King county to restrain the county from developing
tract 92 as a public park. As pointed out by respondent,
however, no part of the record in that proceeding was ever
put in evidence or made a part of the record in this case,
and therefore it cannot be considered in determining the
present controversy. Nevertheless, from appellants' own
assertions respecting the grounds and result of that former
proceeding, it is abundantly clear that the county commissioners
of King county were originally of the belief that the
county had sufficient title to enable it to use the land
here in question for park purposes but, in view of the claims
made against it in the former proceeding then pending,
resolved to condemn any possible or alleged outstanding
adverse interests and to make compensation therefor. If
not virtually conceded, it is at least clearly deducible, from
what does appear in this record, that the present action
was instituted because of the circumstances, and for the
reasons, above stated.
The trial court, after taking the matter under
advisement, rendered a memorandum opinion announcing the
conclusion that "there was no necessity for this condemnation
suit, as under the law it was apparent that King County
already had title to the property for the use as a public
park, which is the very object of this proceeding." The
reasons given by the trial court for its conclusion were
expressed as follows:
"It is quite apparent that the Hanson Investment Company,
in giving the deed of January 5, 1932, never intended to
have that portion which is now Tract 92, amounting to 3 1/2
acres consisting of the land in question, used for a public
road. On the face of it, it just doesn't make sense. It must
have been the intention of the grantor at the time he [it]
gave the deed of January 5, 1932, to give the 31/2 acres for
a public park. This is apparent when in 1939 the donors,
as dedicators of the plat, put the words 'Deeded to King
County as Public Park, January 5, 1932' on lot 92 of the
plat, being the land under condemnation for park purposes. ...
We are in accord with the trial court's reasoning and
conclusion as above expressed. As has heretofore been
shown, this whole controversy stems from the fact that
the Hanson deed of January 5, 1932, included not merely
a uniformly rectangular strip of ground sixty feet in width,
extending easterly to the shore of Lake Sawyer, but also
a triangular-shaped area of land comprising three and
one-half acres immediately north of the easterly portion of
the sixty-foot strip and abutting upon the lake.
"The more I have reflected on this question the more it
appears to me that the true basis for my decision is not
estoppel but a clear intent, deducible from the record, of
the grantor and dedicator to have given this tract in
question to King County for park purposes. . . . In 1939
this grantor made clear that what it really intended as to
the tract in question was to give it for park purposes."
It is puzzling that a deed, given for "road" purposes,
should include, in the easterly portion of its description, a
tract of land of so large an area and of such irregular shape.
It is inconceivable, however, that the parties contemplated
that the entire area in that locality could, or would, be
covered by an improved road. It becomes the more
incomprehensible when we note the fact that the deed on its face
explicitly refers to "Right-of-way A. J. Hanson Road," and
consider the further fact that the record specifically
discloses that the A. J. Hanson road was at about that same
time actually surveyed and constructed as a sixty-foot road
running along the south line of government lot 5, which
was included in the plat of North Shore of Lake Sawyer.
In the words of the trial court, the situation "just doesn't
It would be equally illogical to deduce from the language
of the deed that the excess property, over and above that
actually improved as a road, was to be held by the county
in vacuo, for no purpose whatever, and, of course, none of
the parties herein draws or favors any such deduction.
 We have little, if any, precedent for resolving the
question, unanswered by the words of the deed itself, of.
what uses might properly be made of this excess property.
Consequently, we must avail ourselves of such evidence
pertaining thereto as will best accord with the apparent
intention of the parties, and thus endeavor to arrive at that
solution which is the most definitive of the rights of *all* the
parties, and the least in derogation of the rights of *some*.
In an analogous situation confronting this court in the early
case of Aumiller v. Dash, supra (51 Wash. 520, 99 Pac. 583),
the court stated that, inasmuch as the ordinary canons of
construction were not applicable, about the only thing the
court could do would be to examine carefully the deed
there involved and determine as best it could what was
intended by the grantor to be conveyed.
The deed of January 5, 1932, expresses, as the primary
consideration for the conveyance of the land therein described,
the benefit accruing to the grantor, Hanson, through
the construction and maintenance of a road by the county.
It would appear that, in return for such contemplated
benefit, more land than would reasonably be required for
road purposes was included in the terms of the grant. It is
not disputed that this consideration for the grant has been
executed by the county by its construction and
maintenance of the county road.
Rejecting, as we do, the theory that such excess property
was to be used either for *road* purposes or else for *no*
purpose, and giving full effect to the consideration respectively
given and received by the parties to the deed, we think it
is a fair and logical inference that the parties contemplated
that such uses could be made of the excess property as were
not *inconsistent* with the use of the remaining portion as
a county road. It is at this juncture that the matter of the
plat of 1939 comes into play as throwing light upon what
the parties contemplated by the deed.
However, before considering the effect of the execution,
acceptance, and recording of the plat, and the recitals
contained therein, it is important to note that, between the
respective dates of execution of the deed and of the plat,
the rights of no person, so far as can be determined from
the record, had intervened to inhibit the parties to the deed
from making an agreement between themselves with respect
to the nature and scope of permissible user of the
excess property. During that period, the right to question
the use made of such property, whether under the theory
of implied covenant or of something in the nature of an
equitable servitude, remained in Hanson alone, for it still
owned all the abutting property, and, consequently, the
question of whether any particular use was or was not
inconsistent with the use of the remaining property for
road purposes might have been made, at Hanson's instance,
the subject of judicial determination.
Though apparently conceding that Hanson and King
county by appropriate action might have had reformation
of the deed of 1932 in order to clarify the question of
permissible user, appellants have instead attacked the capacity
of Hanson to dedicate, by plat or otherwise, land or an
interest in land, the title to which Hanson no longer held.
 Whatever may have been the right or remedy of the
parties in that respect, we do not think it furnishes the
only key to the proper solution of the problem created by
the terms of the deed. We are of the opinion that the
execution and acceptance of the plat, and the recitals
contained therein, constituted a definitive statement on the
part of Hanson that the use, for park purposes, of the excess
portion, comprising tract 92, was *not*, in fact, a use
inconsistent with the use of the other portion which was already
rendering service as a road. In short, we are of the opinion
that the recitals in the plat, acquiesced in by all interested
parties, and placed of record for the benefit of others, amount
to a practical construction, by the parties in interest, with
respect to an uncertainty or latent ambiguity contained in
the deed of 1932.
 In Gold Bar v. Gold Bar Lbr. Co., 109 Wash. 391,
186 Pac. 896, this court approved the following rule
regarding the construction of deeds:
"Where a deed is of doubtful meaning, or the language
used is ambiguous, the construction given by the parties
themselves, *as elucidated by their conduct or admissions*,
will be deemed the true one unless the contrary be shown."
In 16 Am. Jur. 536, Deeds, SS 174, appears the following
statement of the rule:
"A deed which is ambiguous or uncertain may be definite
and certain by the practical construction of the parties to
it *while in interest*. The construction put on such a deed by
the parties is an indication of their intention. Therefore,
where the construction of a deed is doubtful, great weight
is to be given to the construction put upon it by the parties,
especially in the case of doubtful questions which must be
presumed to be within their knowledge, and such practical
interpretation of the parties themselves by their acts under
a deed is entitled to great, if not controlling, influence."
In 26 C. J. S. 346, Deeds, SS 93, the rule is similarly stated
in the following language:
"Where a deed is of doubtful meaning, or the language
used is ambiguous, the construction given by the parties
themselves, as elucidated by their conduct or admissions,
will be deemed the true one, unless the contrary is shown.
So, where all the parties have acted on a particular
construction, such construction should be followed unless it is
forbidden by some positive rule of law."
Among the more recent cases expounding the rule are
Cummings v. Midstates Oil Corp., 193 Miss. 675, 9 So. (2d)
648; Trumbla v. State, 191 Okla. 119, 126 P.2d 1015; Rhodes
Cemetery Ass'n v. Miller, 122 W. Va. 139, 7 S. E. (2d) 659.
Under circumstances such as we have here before us,
where no concurrent or conflicting rights, public or private,
have intervened since the execution of the original deed,
no rule of law prevents the parties to the deed from agreeing
upon or clarifying the scope of uncertain or ambiguous
limitations suggested in, but undefined by, such deed.
We conclude our opinion with this statement: The decision
rendered by the trial court, and by this court as well,
is not to be taken as holding or indicating that the title held
by King county is sufficient to permit an appropriation of
the land to *any and all purposes*, but simply that its title
is sufficient for the permissible use of the property for park
The judgment of dismissal entered by the trial court is
JEFFERS, C. J., BEALS, MALLERY, and HILL, JJ., concur.
1. Reported in 208 P.2d 113.