Nelson v. McKinney , 163 Wash. 529 ( 1931 )

Not all the instrument of conveyance in question is set out in the majority opinion. Another pertinent and important part of it, is the granting clause, which, after naming the grantors and expressing the consideration, reads, "do hereby grant, sell and convey to J.E. Leonard, a married man, his heirs and assigns forever, the following described property," then followed by the clause quoted by the majority.

With the granting clause so reading, I cannot construe the conditions following, nor agree to the inapplicability of theSkamania Boom Co., Healy and France cases, by this court, as do the majority.

As is said by the majority, approving the law pronounced in the Hendrickson case, "Parties may so frame their contract as to give the purchaser of timber an unlimited time for its removal," which must be clearly and definitely expressed. It is equally well settled that,

"A deed is to be construed so as to give force, effect and meaning to every portion of the instrument and carry out the real intention of the parties. If a deed admits of more than one construction, it must be construed most strictly against the grantor, and most favorably to the grantee." Healy v. Everett Cherry Valley Traction Co., 78 Wn. 628, 139 P. 609.

See, also, McFadden v. Allen-Nelson Mill Co., 150 Wn. 249,272 P. 714, and cases cited.

And, as was said in the Skamania Boom Co. case, supra, the real value and essence of the grant on the east half, was the timber.

The conveyance to Leonard was all in one instrument. He and his successors in interest, having a grant of the fee of the west half, had the perpetual right to remove the timber therefrom at will, forever. All subsequent grantees had the same right. Whenever they chose to exercise that right, and within one year after the removal of the timber from that west half, then the timber should be removed from the east half.

It seems clear to me that the terms of the instrument in this case fall within the terms of the instruments passed upon in theSkamania Boom Co., Healy and France cases, referred to by the majority, and that the judgment should be affirmed.

I therefore dissent.