Opinion
No. 25430-5-III.
January 24, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 00-2-01645-7, Cameron Mitchell, J., entered July 14, 2006.
Reversed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown, J., and Stephens, J. Pro Tem.
Frank and Janet Tiegs signed an agreement with Milo and Donna Bauder concerning the use of the Tiegses' property for a road to the Bauders' planned development. The Tiegses signed a quit claim deed to the city of Richland for a right-of-way for the road and a temporary easement, and the documents were placed in escrow pending the Bauders' resolution of a boundary line adjustment with the city. The Bauders were to construct the road and install a sewer in the right-of-way, provide the Tiegses with free access to the utility, and pay the Tiegses $30,000.
When the boundary line adjustment was resolved, the Bauders demanded release of the documents. The Tiegses and their produce company filed an action against the Bauders to resist release of the documents because the Bauders had not met the terms of the agreement. Because the escrow agreement expressly provided that the documents were to be released upon the resolution of the boundary adjustment, the court ordered that the documents be released for recording.
The Tiegses learned that the Bauders had abandoned their application to place the road in the specified right-of-way. The Tiegses then asked the city council not to accept the dedication of the right-of-way because the road for which the grant was conveyed was not going to be constructed. When the city accepted the dedication, the Tiegses filed an action against the city to quiet the title. The city's summary judgment motion was granted.
We conclude that the Tiegses have presented numerous issues of fact. We therefore reverse. But we deny the Tiegses' request for attorney fees as premature.
FACTS
In 1994, the Bauders' proposal for the West Cliff development in Richland, Washington, was approved. The West Cliff development provided for an east-west 60-foot public street. The Bauders wanted to change the access to the West Cliff subdivision to a north-south street, Westcliff Boulevard, connecting to east-west Shockley Road, along the Tiegses' cherry orchard. The Tiegses and the Bauders, who had been apple orchard partners since 1986, entered into an agreement on April 1, 1999 for use of a backward L-shaped piece of the Tiegses' property for the street (street agreement), which consisted of a short east-west portion to connect the road from the east and bend into a north-south route.
In the street agreement, the Tiegses agreed to quit claim to the city of Richland a 60-foot street right-of-way and to grant a temporary 20-foot easement for ingress and egress to the city of Richland during the construction of the road. The Bauders agreed to: (1) construct a dedicated street right-of-way to the city's specifications; (2) install sewer within the right-of-way; (3) pay $30,000 to the Tiegses prior to commencement of construction; and (4) allow the Tiegses access to utilities free of charge. The Tiegses signed the documents and an escrow agreement, placing the documents in escrow pending the resolution of the Bauders' boundary line adjustment with the city. The escrow agreement also provided that release of the documents did not relieve the Bauders of their obligations under the agreement.
The Tiegses and their produce company, Baker Produce, Inc., sued the Bauders concerning the release of the documents. In October 1999, the trial court in the Baker Produce action ruled that the escrow conditions had occurred and ordered that the documents be released. Both the deed and the easement were recorded on December 9, 1999.
On February 22, 2000, the Bauders withdrew their application for a change in access. The Tiegses requested that the city not accept the deeded dedication. Over the Tiegses' objection, the Richland city council formally accepted the quitclaimed public right-of-way on August 15.
The Tiegses filed a quiet title complaint on September 5. The city filed an ordinance condemning a different strip of the Tiegses' land, 2,119 feet long and consisting of 3.55 acres, for which compensation of $147,000 was ultimately awarded to the Tiegses. See City of Richland v. Tiegs, noted at 115 Wn. App. 1019 (2003). This strip of land is now being used to construct an east-west Westcliff Boulevard, connecting the new street to Keene Boulevard, which runs northwest-southeast. The city also used the east-west portion of the original dedication. The street configuration is illustrated below.
Exhibit
The city moved for summary judgment on March 29, 2006. The city conceded, for the purposes of the motion, that the common law rules of dedication applied and the Tiegses could revoke their dedication. But, it claimed, the right-of-way deed was accepted by the city on December 9, 1999, before the Tiegses revoked their dedication.
The Tiegses resisted the motion, asserting that the city must either accept the right-of-way deed as a dedication pursuant to common law rules, which it had failed to do, or obtain the property through condemnation.
The city later learned that the deed was recorded by a third party rather than a city agent. At oral argument, the city therefore asserted that the right-of-way deed was an irrevocable transfer. The city also argued that the trial judge in the Baker Produce case ordered the Tiegses to convey the property to the city.
After hearing argument on May 26, 2006, the court granted the city's motion and quieted title in its favor. The trial court concluded that the right-of-way deed was accepted when it was recorded. The court entered a decree quieting title in fee simple to the city of Richland on July 14, 2006. This appeal follows.
DISCUSSION
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). When reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court. Folsom, 135 Wn.2d at 663. Facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
Dedication
A common law dedication is the setting aside of land, or of an interest in land, to the public use. Richardson v. Cox, 108 Wn. App. 881, 890-91, 26 P.3d 970, 34 P.3d 828 (2001). In order for a dedication to be valid, there must be (1) an intentional offer by the owner of real property, to appropriate the property, or an easement or interest in the land (2) to a public use and (3) acceptance of the offer, express or implied, by the public or public body. City of Seattle v. Hill, 23 Wash. 92, 97, 62 P. 446 (1900); Donald v. City of Vancouver, 43 Wn. App. 880, 885, 719 P.2d 966 (1986).
Dedication is a mixed question of law and fact; an owner's intent to dedicate is a factual question, but whether a common law dedication has occurred is a legal issue. Sweeten v. Kauzlarich, 38 Wn. App. 163, 166, 684 P.2d 789 (1984).
Here, the Tiegses contend that they intended to make a dedication of the property for a specific public use, contingent on certain conditions. They assert that the specific use was a right-of-way for a public road. The conditions upon which the offer was made, the Tiegses claim, was the use of the land for a public road. They argue that because the city accepted the dedication with the conditions, and the object of the dedication failed when the city built the road in a different location, they are entitled to return of the property or reasonable compensation. Alternatively, they argue that they withdrew their offer before acceptance by the city. Additionally, they assert that if an interest in the property were conveyed to the city, the interest conveyed was merely a right-of-way, not fee simple as the trial court ordered when it quieted title to the city.
Therefore, the Tiegses contend, they have, at a minimum, raised an issue of fact concerning quieting title in favor of the city, which precludes summary judgment. The city does not dispute any of the Tiegses' contentions. Instead, the city argues that the Tiegses are collaterally estopped from raising the issue.
Offer. An express common law dedication may be in the form of a deed containing an express grant, which operates as evidence of the owner's intent to dedicate property to public use. 6 Washington State Bar Ass'n, Washington Real Property Deskbook §§ 91.4(2) (3d ed. 1996). In construing a dedication or grant of land, the court is not concerned with the individual meaning of the words used, but rather with the intent of the donor in using them. Miller v. King County, 59 Wn.2d 601, 605, 369 P.2d 304 (1962). Because intent is of "'paramount importance'" when construing a deed, the intent to convey an interest in real property can be ascertained by examining the circumstances surrounding a conveyance, even absent ambiguity. Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass'n, 156 Wn.2d 253, 271-72, 126 P.3d 16 (2006) (quoting Brown v. State, 130 Wn.2d 430, 437, 924 P.2d 908 (1996)).
In response to the summary judgment motion, the Tiegses proffered the street agreement and escrow agreement they made with the Bauders. These materials are helpful to determine the intent of the parties. Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) (extrinsic evidence is admissible only for the purpose of elucidating the meaning of the terms of the writing and is inadmissible for the purpose of adding to, modifying, or contradicting these terms). These documents are properly considered in the examination of the Tiegses' intent as well as the city's intent.
The deed in this case stated:
THE GRANTOR, FRANK S. TIEGS AND JANET L. TIEGS, for and in consideration of the City of Richland operating and maintaining a public street, conveys and quit claims to the City of Richland, Washington, a municipal corporation, the following described real estate, situated in the County of Benton, State of Washington, together with all after acquired title of the grantor(s) therein.
A STREET RIGHT-OF-WAY (Legal Description Attached)
The slope easement shall terminate upon completion of construction of the street.
Clerk's Papers (CP) at 94 (emphasis added).
The street agreement and escrow agreement show that the Bauders needed the property for a street in their development. And it was in this context that the offer was made. The Tiegses have presented issues of fact as to the intended offer.
The escrow agreement states that "[t]he [quit claim deed and temporary easement] are only being executed by Tiegs . . . for the purpose of assisting Bauder in Bauder's proceedings with the City of Richland for the development of certain residential property commonly known as the 'Westcliff Property' which is owned by Bauder." CP at 89. The street agreement states that the Bauders were to "[c]onstruct the dedicated street [right-of-way] to city specifications at the sole cost of Bauder." CP at 85.
Acceptance. Public acceptance may be proved by an express act, implication from the acts of municipal officers, or implication when the public uses the property for the purposes for which it was dedicated. City of Spokane v. Catholic Bishop of Spokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949). The Tiegses presented evidence that the offer was orally accepted by the city council on August 15, 2000.
The recording of a deed creates a strong presumption of delivery to a party. Hampton v. Gilleland, 61 Wn.2d 537, 545, 379 P.2d 194 (1963). But that presumption can be overcome by clear and convincing evidence to the contrary. Id. Because the city conceded below that the deed was not delivered, the presumption does not prevail here.
Revocation. A dedication of land to a public use may be revoked at any time before it is accepted. Smith v. King County, 80 Wash. 273, 278, 141 P. 695 (1914). Revocation may be express or implied. See id. (conveyance of an unaccepted street or highway revokes the dedication). "What constitutes a revocation of an offer to dedicate depends very largely upon the circumstances of the particular case, and is usually a question of fact." 11A Eugene McQuillin, The Law of Municipal Corporations §§ 33.60, at 495 (3d ed. 2000) (citing Hanford v. City of Seattle, 92 Wash. 257, 262, 158 P. 987 (1916)).
In this case, Mr. Tiegs wrote to the city planning department on February 28, 2000, and informed the city that the use of the land originally contemplated by the Tiegses and the city was not going to take place due to Mr. Bauder's withdrawal of the application to change the access to the development. He stated that the Bauders did not provide the consideration to the Tiegses for the Tiegses' dedication to the city, and that the city was also subject to the consideration set forth in the conveyance — which required the city to operate and maintain a public street. The letter "requested that the street right-of-way and the temporary emergency access easement be rescinded and reconveyed to the original Grantors, Frank Tiegs and Janet Tiegs." CP at 28. The Tiegses' counsel also appeared at the August 15, 2000 city council meeting and objected to the acceptance of the right-of-way. The Tiegses have presented issues of fact as to the timely revocation of the dedication.
Restrictions. A dedicator may impose reasonable conditions or restrictions on the property offered for dedication. N. Spokane Irrigation Dist. No. 8 v. County of Spokane, 86 Wn.2d 599, 602, 547 P.2d 859 (1976). Acceptance of the offer by the public body is an agreement to be bound by such conditions and restrictions. Id. A condition or restriction is reasonable unless it interferes with the primary use and purpose of the dedication or with the rights and use of the public body. Id. at 604.
A restriction as to use will not be recognized as a condition unless conditional language is used. King County v. Hanson Inv. Co., 34 Wn.2d 112, 119, 208 P.2d 113 (1949). If a restriction as to use is regarded as a condition and the public authority relinquishes its rights to use the property for that purpose by abandonment, the property may revert to the dedicator. Johnston v. Medina Improvement Club, Inc., 10 Wn.2d 44, 57, 116 P.2d 272 (1941).
Pointing to the deed, the Tiegses argue that they restricted the use of the dedication to the use set forth in the deed and accepted by the city. The city does not dispute this point. The deed states that the consideration by the city was "the City of Richland operating and maintaining a public street." CP at 94. The Tiegses have presented evidence sufficient to allow a fact finder to decide the issue of reasonable restriction.
Abandonment. Abandonment of interest in land can occur if the specific use for which the property was dedicated becomes impossible or if there is a complete failure of the object of the use. Johnston, 10 Wn.2d at 57-59. What constitutes abandonment is generally a question of fact. 11A McQuillin, supra, §§ 33.78, at 545 (citing Horton v. Okanogan County, 98 Wash. 626, 634, 168 P. 479 (1917)).
The Tiegses contend that the city's relocation of the proposed road evinces the intent to abandon the dedication for public use because there is a complete failure of the object of the use. The city does not challenge this assertion. The Tiegses have presented sufficient evidence to survive summary judgment on the issue of abandonment.
Partial acceptance. The Tiegses argue that the city could not partially accept the dedication. In other words, although the city used some of the conveyance, it did not use the conveyance as it was offered. Further, they claim, the city accepted the entire dedication. This issue also touches on intent, which is a factual question.
Collateral Estoppel
The city argues that the Tiegses' claim is barred by collateral estoppel. Though the Tiegses do not assert that the city may not raise the issue of collateral estoppel for the first time on appeal, we believe that might be the case. See RAP 9.12 (providing that on review of a summary order the "appellate court will consider only evidence and issues called to the attention of the trial court"). Even giving the city the benefit of the doubt, we are not persuaded.
The city did not brief the issue below and made only a cursory mention of a collateral estoppel-like defense in its oral argument on summary judgment. The Tiegses briefly mentioned collateral estoppel in their brief opposing summary judgment but only to the extent that it did not apply.
Collateral estoppel bars the relitigation of an issue after the party estopped has had a full and fair opportunity to present his or her case, even if the subsequent litigation of the issue is presented in a different claim or cause of action. In re Marriage of Mudgett, 41 Wn. App. 337, 342, 704 P.2d 169 (1985). The purpose of collateral estoppel is to prohibit the relitigation of any issue that was actually litigated in a prior lawsuit. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993). The doctrine applies only if four basic requirements are met: (1) the identical issue was decided in the prior action, (2) the first action resulted in a final judgment on the merits, (3) the party against whom preclusion is asserted must have been a party to or in privity with a party to the prior adjudication, and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied. Id. at 562; State v. Mullin-Coston, 152 Wn.2d 107, 113-14, 95 P.3d 321 (2004).
We conclude that the Baker Produce case involved only the specific enforcement of the escrow agreement. The order directed release of the deeds, but the trial court did not interpret the deed and stated that the efficacy of the deeds was not at issue. The trial court also directed that the Tiegses grant an easement to the Bauders "for the Boundary Line Adjustment." CP at 304.
The matter at issue here is the title to the land based on one of the documents released as a result of the enforcement of the escrow agreement. As the Tiegses point out, the trial court in the Baker Produce action noted that the property conveyances subject to the escrow agreement were not at issue. Nor was the city a party to or in privity with a party in the first action.
A dedication is like a contract between the grantor and the city body. Catholic Bishop of Spokane, 33 Wn.2d at 521. The contract is not formed until the city body accepts. Id. Here, the city did not accept until August 15, 2000. And the city could not accept, as a practical matter, until the documents were released. The documents were not released until the Baker Produce matter was decided. Finally, application of the doctrine would arguably work an injustice on the Tiegses. The Tiegses' title was not clouded until the Baker Produce action was decided.
Attorney Fees
The Tiegses seek attorney fees under RCW 8.25.075. RCW 8.25.075(3) provides that a superior court rendering a final judgment for the plaintiffs awarding compensation for the taking of real property for public use without just compensation having been first made to the owners shall award or allow to such plaintiffs costs including reasonable attorney fees. The statute is mandatory in its terms, and entitles the plaintiffs to their attorney fees in the superior court proceeding. Brazil v. City of Auburn, 93 Wn.2d 484, 497, 610 P.2d 909 (1980).
There has been no final judgment in condemnation. If such a judgment were to be entered in the future, the Tiegses would then be entitled to attorney fees incurred on this appeal.
CONCLUSION
We conclude that the court erred by dismissing the Tiegses' suit. Accordingly, we reverse. We deny the Tiegses' request for attorney fees at this time, as it is premature.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
BROWN, J.
STEPHENS, J. Pro Tem.