[No. 9041. Department Two. November 15, 1910.]
Pacific Iron Works, Respondent,
Bryant Lumber & Shingle Mill Company, Appellant. /1
Appeal from a judgment of the superior court for King
county, Kauffman, J., entered June 30, 1910, upon findings
in favor of the plaintiff, upon an appeal from a decision of
the state board of land commissioners, in a contest over the
preference right to purchase shore lands. Reversed.
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are two versions of Pacific Iron Works v. Bryant Lumber on this website. This version has added emphasis to highlight the meaning of the words "right-of-way" in a railroad deed. A second version is unedited.
This opinion construes the 1887 Burke right-of-way deed to the Seattle Lake Shore and Eastern Railway. Significant portions of the Burke right-of-way deed are shown in Northlake Marine Works v. Seattle (1993).
The portions of this decision that deal with the meaning of the words "right-of-way" in railroad deeds are in dark green font. Further emphasis is made by use of bold font.
View the unedited version of Pacific Iron Works v. Bryant Lumber (1910).
Open Northlake Marine Works v. Seattle (1993) in a separate window in order to view significant portions of the Burke right-of-way deed.
Roberts, Battle, Hulbert & Tennant and J. L. Corrigan,
James Kiefer, for respondent.
RUDKIN, C. J. - 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 SSSS 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 tinge 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
soon thereafter she, or her successor in interest, the Freemont
Manufacturing Company, built a wharf and constructed
three-story sash and door factory thereon. The sash and
door factory was destroyed by fire on the 24th day of
December, 1889, and whatever rights Goddard Brothers acquired
as improvers were so acquired between that date and the
day of March, 1890, a period of about three months. The
testimony is very meager and indefinite as to the extent or
character of the improvements made by Goddard Brothers, or
as to the time when they were made, and there is an entire
lack of testimony as to the value of any such improvements.
The fire which destroyed the sash and door factory established
by the Freemont Manufacturing Company on lots 8 and
left the piling, and a part of the covering on which the
superstructure was erected, intact. Some time after the fire, but
whether prior to March 26, 1890, is extremely doubtful,
Goddard Brothers built what is called an office building on this
piling or platform. There is no description of the building
in the record except such as the name might indicate, and no
testimony whatever as to its value. It does appear, however,
that it took one of the Goddards two or three days to
construct the building. A coke shed was likewise constructed,
partly on these lots and partly on an adjacent railroad
right of way. This was, in all probability, after March 26,
1890. The testimony is equally indefinite as to the
character of this building, aside from the fact that it was an
open shed capable of holding about a half ton of coke. Its
value it not shown. These two structures are the sum total
of the improvements upon which the respondent bases
preference right to purchase, and we have no hesitation in
declaring that Goddard Brothers were not the owners of
valuable improvements on these lots in actual use for
commerce, trade, residence or business, on or at any time prior
to March 26, 1890, within the meaning of the law. Globe
Mill Co. v. Bellingham Bay Imp. Co., 10 Wash. 458, 38 Pac. 1112;
Barlow v. Gainwell, 12 Wash. 651, 42 Pac. 115.
By section 1 of article 17 of the state constitution, which
became operative November 11, 1889, the state asserted its
title to all tide and shore lands, and the Goddards were
aware of this, both as a matter of law and as a matter of fact.
It is highly improbable that they would thereafter construct
improvements of any considerable value on state property,
and all examination of the record convinces us that they did
not. The judgment of the court below must therefore be
reversed, in so far as it awards the preference right of
purchase to the respondent.
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 24,
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 this 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
grant in fee simple, it would, perhaps, have the effect claimed
for it by the respondent, but, in our opinion, it was not.
Pacific Iron Works v. Bryant Lumber (1910)
Note from John Rasmussen:
The right-of-way deed construed in the paragraph below is from Thomas Burke and his wife, Carrie, to the Seattle Lake Shore and Eastern Railway Company (SLS&E). Since Thomas Burke was the co-founder and lead attorney for the Railway, this deed is from Thomas Burke, as a landowner, to Thomas Burke and his partners, as owners of the SLS&E. This is a quitclaim deed, which is a different deed form than used to obtain other SLS&E deeds at that time. It is similar to the other 1887 SLS&E deeds in the fact that a "right of way" is conveyed in the granting clause. I speculate that it was made a quitclaim deed because the location of the right-of-way included tide lands. As an adjoining landowner, I believe the Burkes had no ownership of those tide lands and, by using a quitclaim deed, they protected themselves from the liability of conveying something they didnít own. This is only speculation, based on facts stated below and reading parts of "Orphan Road" (K.E. Armbruster, Washington State University Press 1999). In any case, the Burke right-of-way deed is a quitclaim deed and different to the SLS&E form deeds used to establish the right-of-way along East Lake Sammamish and other parts of King County.
Thomas Burke became Chief Justice of the Supreme Court of Washington Territory in 1888, a year after he wrote this deed. He was considered an expert in property law. Judge Burke was a vital community leader in 1910 when this decision was rendered. Considering his status as a skilled attorney and former Chief Justice of the Washington Supreme Court, it seems very unlikely that the court, in this decision, would misconstrue Burke's intent in this grant to the SLS&E. The court found Thomas and Carrie Burke intended the grant to be an easement.
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
"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."
Cyc. 1162; Robinson v. Missisquoi R. Co., 59 Vt. 426, 10
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. 505, 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
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.
DUNBAR, CROW, MORRIS, and CHADWICK, JJ., concur.
1. Reported in 111 Pac. 578.