## Facts

- In 1884, John L. Rigney and his wife conveyed a strip of land to Tacoma Light and Water Company for use as a right-of-way to conduct fresh water to Tacoma.
- The deed created a fee simple subject to a condition subsequent, reserving to Rigney and his heirs a right of entry if the land ceased to be used for the water-supply purpose.
- The grantee used the land for the intended water purpose before 1886; in 1893 it conveyed the land to the City of Tacoma subject to the same condition.
- Around 1905, the city stopped using the land for the water system and began using it as a park; a metropolitan park district later managed the property, and the city deeded it to the district in 1951.
- The property was used as a public park for more than 50 years; tennis courts were built in 1920 and maintained, though later rarely used.
- No heir attempted to exercise the right of entry or declare forfeiture until the heirs asserted it as a counterclaim in the park district’s quiet-title action filed decades after the change in use.

## Issues

1. Whether a grantee holding a fee simple subject to a condition subsequent can obtain an indefeasible fee by adverse possession merely by remaining in possession after breach, before any election of forfeiture by the holder of the right of entry.
2. Whether an extensive delay between breach of the condition and an election to declare forfeiture waives or extinguishes the right of entry.

## Decision

- The Washington Supreme Court affirmed summary judgment quieting title in the Metropolitan Park District.
- Continued possession by the holder of a fee simple subject to a condition subsequent is not adverse to the holder of the right of entry until the latter elects forfeiture.
- The holder of a right of entry must act within a reasonable time after breach; prolonged inaction causes the power to declare forfeiture to expire.
- The heirs’ delay from the early 1900s to the 1960s was unreasonable, so the right of entry had lapsed.

## Legal Principles

- A fee simple subject to a condition subsequent does not terminate automatically upon breach; the grantee remains in possession until the grantor or heirs take affirmative action to enforce the right of entry.
- Adverse possession does not run against a non-possessory right of entry based solely on the grantee’s continued possession after breach; adversity arises only after an election to forfeit.
- A right of entry must be exercised within a reasonable time after breach, and an extreme lapse of time without action extinguishes the power of termination.

## Conclusion

Because the condition subsequent did not automatically divest the grantee and the heirs waited an unreasonable time to declare forfeiture, the heirs’ right of entry expired and title was properly quieted in the Metropolitan Park District.


Metropolitan Park Dist. of Tacoma v. Unknown Heirs of Rigney, 65 Wn.2d 788, 399 P.2d 516 (Wash. 1965)