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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 01-35610
D.C. No.
CV-00-01637-BJR
OPINION

KING COUNTY, a political subdivision of the State of Washington,
Plaintiff-counter-defendant-Appellee,
v.
JOHN RASMUSSEN; NANCY RASMUSSEN, husband and wife, and their marital community,
Defendants-counterclaimants-Appellants.

Appeal from the United States District Court for the Western District of Washington
Barbara J. Rothstein, Chief District Judge, Presiding

Argued and Submitted
June 13, 2002—Seattle, Washington

Filed August 9, 2002

Before: Betty Binns Fletcher and Ronald M. Gould,
Circuit Judges, and Mary H. Murguia, District Judge.(1)

Opinion by Judge B. Fletcher

COUNSEL

J. Jarrette Sandlin, Sandlin Law Firm, Zillah, Washington,
for the defendants-counter-plaintiffs-appellants.

Howard P. Schneiderman and Scott Johnson,
King County Prosecuting Attorney's Office, Seattle, Washington,
for the plaintiff-counter-defendant-appellee.



    Please read a disclaimer for the statements I make on this website accusing judges, politicians and activists of criminal actions.

    Note from John Rasmussen:

    This "legal opinion" is a CRIMINAL ACT from the bench.

            This is not a legal opinion, but rather it is an intentional criminal act from the bench by Senior Ninth Circuit Judge Betty Binns Fletcher. This dishonest opinion must be read in the context of the lower court opinion it protects, King County v. Rasmussen (2001). Federal District Judge Barbara Jacobs Rothstein is responsible for King County v. Rasmussen (2001). As fellow Seattle based federal judges, I assume that Fletcher and Rothstein are personal friends. As a Senior Ninth Circuit judge, I assume that Fletcher requested my appeal so she could protect her friend.
            My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

            There are two basic elements in the resolution of this lawsuit: the facts and the law. Our disagreement with material facts was briefed to Fletcher. Under the law, Fletcher's only option was to send the lawsuit back to lower court for a jury trial. Fletcher refused, and then illegally and dishonestly settled questions of fact herself. While an occasional mistake is inevitable in legal opinions, this "legal opinion" has critical mistakes in essentially every paragraph. The reason for Fletcher's "mistakes" is found in the effect of her mistakes. Fletcher's "mistakes" cover-up the East Lake Sammamish federal tax fraud scheme, protecting Rothstein and the other active participants in the crime from criminal prosecution. My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

            With respect to the facts, Fletcher illegally settles disputed material facts and denies my right to resolve these questions of fact before a jury. Just one example of Fletcher's manipulation of facts is her treatment of the Statutory Warranty deed from Bill and Louise Hilchkanum to Chris Nelson on March 15, 1904. That deed granted fee simple title of 96% of the land involved in this lawsuit to Chris Nelson. This establishes the material fact that Hilchkanum believed he and his wife owned that land when they sold it to Chris Nelson in 1904. Since a person can't sell the same parcel of land to two different parties, this 1904 deed strongly suggests that Hilchkanum believed he didn't previously sell the same piece of land to the Seattle Lake Shore and Eastern Railway in 1887. Therefore, this 1904 deed strongly suggests that Hilchkanum believed he granted an easement over the same parcel with his right-of-way deed to the SLS&E in 1887. But, Fletcher ignores this logical consequence when she decides the Hilchkanum right-of-way deed granted fee simple title to the Railway. The outcome of this lawsuit hinges on whether Hilchkanum granted fee simple title or an easement to the SLS&E in 1887. Fletcher admitted that this 1904 deed to Nelson sold the land involved in this lawsuit, but then declared it didn't provide a "scintilla" of evidence to suggest Hilchkanum understood he had granted an easement with his right-of-way deed in 1887. Hilchkanum's intentions in his deeds are critical material facts in this lawsuit. His intentions in this 1904 deed to Chris Nelson becomes particularly important in this opinion because Fletcher admits the 1887 Hilchkanum right-of-way deed would be an easement if it were not for the intentions Hilchkanum demonstrated in his later real estate deeds. In real courts of law, the disputed material fact of Hilchkanum's intentions in his deeds would be resolved by a jury. Here, the material facts are manipulated by this dishonest Ninth Circuit federal judge. My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

            With respect to the law, Fletcher misapplies the law time-and-again in this opinion. Just one example is her refusal to acknowledge the common law precedent established in King County v. Squire (1990). The Squire court construed the 1887 Squire right-of-way deed to the SLS&E. The Court found that the Squire granting clause "...strongly suggests conveyance of an easement...". Based largely on that finding, the Squire court determined that the deed granted an easement. The Hilhkanum granting clause to the SLS&E is identical to Squire's, yet Fletcher irrationally finds the identical Hilchkanum granting clause conveys fee simple title. We carefully briefed the importance and effect of this most critical precedential opinion. Fletcher intentionally ignored our briefs on Squire and refused to acknowledge this legal precedent in this opinion. King County v. Squire is established property law in Washington State. Fletcher demonstrates that she believes she in not bound by the law.
            My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

            As stated above, Judge Fletcher's dishonest manipulation of the facts and the law covers-up the East Lake Sammamish federal tax fraud scheme and protects the active participants in the crime from criminal prosecution.
            My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    There are three versions of this opinion on this website.

      First, the published version:

        View King County v. Rasmussen (2002) in PDF format, without my additional comments.

      Second, the version, which you are viewing here, contains only brief comments. This version is built to maintain the continuity of Judge Fletcher's opinion, but make the reader aware of the violation of constitutional rights, the massive dishonesty, and the intentional misapplication of the law by this judge and her fellow panel members. My suggestion is to read this version and, when interested in viewing expanded justification and documentation, use the hyperlink at the bottom of each note to open the detailed version of that note in a separate window.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Third, a version containing detailed analysis of this very dishonest opinion. It provides links to supporting argument, historical documents, and precedential opinions. This third version breaks up the continuity of Judge Fletcher's opinion, but supplies the justification for my description of the opinion as a criminal act.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        View King County v. Rasmussen (2002), with detailed comments and documentation.

    Color Scheme:

            Fletcher's opinion is presented here in bold blue font color. I've broken her opinion into small sections for the purpose of analysis. Each portion of Fletcher's opinion is preceded with the notice: "The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher."

            I have added my comments and analysis in black font color, indented, and bracketed by horizontal reference lines, as shown here. My comments are preceded with the words "Note from John Rasmussen:".

    Reference:

      View the briefs presented to Senior Circuit Judge Fletcher in this appeal of King County v. Rasmussen (2001).

      Read a description of the federal tax fraud scheme that Judge Rothstein covered-up with this decision.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

OPINION

B. FLETCHER, Circuit Judge:

This case arises from a dispute over a 100-foot-wide strip of land running along a portion of the eastern shore of Lake Sammamish in King County, Washington, that was formerly used as part of a railway corridor. King County filed suit against the Rasmussens to quiet title over this strip of land, which bisects the Rasmussens' property, and to obtain a declaratory judgment that it is entitled to quiet enjoyment of the strip.

King County claims it owns a fee simple estate in the strip. The Rasmussens, in turn, claim that their predecessors in interest granted only an easement over the strip and that the rights in the easement have reverted to the Rasmussens so that they now have fee simple title to the strip. The district court granted summary judgment in favor of King County and dismissed the Rasmussens' counterclaims. Because we conclude that no genuine issues of material fact exist for trial and that King County holds the strip in fee simple, we affirm.



    Note from John Rasmussen:

        Senior Federal Circuit Judge Betty Binns Fletcher actually got out five sentences before her first big lie in this decision.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Fletcher states, above, "Because we conclude that no genuine issues of material fact exist for trial...". This "conclusion" is a ridiculous lie, and is one of the methods used by dishonest judges to take complete control of a case before them. There must be no genuine issues of material fact in order for a judge to control a case using the rules of summary judgment. Because it's almost impossible to hold a judge responsible for misconduct, illegal application of summary judgment has become a method dishonest judges use to predetermine and guarantee the outcome of cases before them.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    Here are significant material facts that were not in agreement:

      It is a material fact to establish who wrote the Hilchkanum deed.

      The intention of the Hilchkanums in their right-of-way deed is a material fact.

      The intention of the Hilchkanums in their subsequent real estate deeds is a material fact.

      The purpose of the deed is a material fact.

      The ability of the Hilchkanums to participate in their railroad right-of-way deed is a material fact.

      It is a material fact to determine what was conveyed in the deed.

      It is a material fact to determine if King County's actions against me constituted a violation of my civil rights.

      It is a material fact that King County participated in a federal tax fraud scheme.

        No legitimate jury would agree to the ridiculous material facts that Fletcher used to decide this lawsuit. In order to keep determination of the facts away from a jury, Fletcher simply declared we agreed with all the material facts she used to decide the case. This is a lie. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

I.

Factual and Procedural Background

In 1876, homesteaders Bill Hilchkanum and Mary Hilchkanum claimed property along the eastern shore of Lake Sammamish in King County, Washington. They received their final ownership certificate in 1884 and their fee patent in 1888. On May 9, 1887, the Hilchkanums conveyed an interest in the strip to the Seattle Lake Shore and Eastern Railway Company ("the Railway"). The text of the "Right of Way Deed" is as follows:

      In consideration of the benefits and advantages to accrue to us from the location construction and operation of the Seattle Lake Shore and Eastern Railway in the County of King in Washington Territory, we do hereby donate grant and convey unto said Seattle Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands in said County described as follows to wit

      Lots one (1) two (2) and three (3) in section six (6) township 24 North of Range six (6) East.

      Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said railway company which location is described as follows to wit [legal description in metes and bounds].

      And the said Seattle Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.

      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.

The deed was handwritten by a notary public.



    Note from John Rasmussen:

    There is more to this deed than Judge Fletcher publishes in this opinion.

        Fletcher omits the signature portion of the deed. This is important because Bill Hilchkanum and his wife, Mary, signed this right-of-way deed with an "X". They were illiterate Natives and unable to even sign their own names in the English language. It was important for Fletcher to omit this fact because she and her sister judge (Federal District Judge Barbara Jacobs Rothstein) irrationally and illegally establish Hilchkanum as the author of the words in this deed.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Fletcher omits the portion of the deed that shows that D.T. Denny was a witness. This is significant because David Denny was Hilchkanum's "white man" advocate in those days. But, at the same time, David Denny was one of the thirteen owners of the railway. This was a significant conflict of interest which Fletcher and the other Ninth Circuit judges hide in their decisions. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

        Fletcher changes the words of the deed and then analyzes her substituted words. Later in this decision, Judge Fletcher states that the Hilchkanums conveyed a "'strip' of land" to the Railway. This would be a good chance to look at the Hilchkanum granting clause, above, and see that the Hilchkanums conveyed a "right of way". This substitution, and blending, of these contradictory terms is an essential element of Norm Maleng's "legal theory" In Washington State/Territory the grant of a "right-of-way" to a railroad has always been held to be the grant of an easement. Federal Judge Fletcher didn't want the grant to be an easement, so she changed the words of this 1887 deed when she analyzed its language.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Fletcher could not find the clearly stated purpose of the deed. Judge Fletcher not only determined that a "'strip' of land" was conveyed, but she stated that there was no railroad right-of-way purpose in the deed. Ridiculous! The deed grants a "right of way" to a railroad. The dimensions of the right-of-way is defined as "fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said railway company" . Essentially every portion of the deed deals with the purpose of conveying a right-of-way to the SLS&E Railway. This conclusion by Fletcher, that there is no purpose to convey a right-of-way to a railroad, demonstrates the corruption and arrogance in this federal judge. My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Judge Fletcher leaves out important parts of the Hilchkanum right-of-way deed to the SLS&E because those facts contradict her dishonest predetermined conclusions.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

Mary Hilchkanum later conveyed lots 1 and 3 of the homestead property to her husband by quitclaim deed. The conveyance is "less (3) acres right of way of Rail Road." Bill Hilchkanum then conveyed lot 1 to Chris Nelson "less three (3) acres heretofore conveyed to the Seattle and International Railway for right of way purposes." The deed by which the Hilchkanums conveyed lot 2 of their homestead property did not contain an exception for the railroad right of way. The Rasmussens claim that the right of way bisects portions of lots 2, 3, and 5.(2)



    Note from John Rasmussen:

    Why does Fletcher concentrate of the subsequent transfer of land that is not the subject of this lawsuit?

        Judge Fletcher "cherry-picked" the extrinsic evidence. None of the land that is the subject of this lawsuit is on Government Lot 1. 1% (one percent) of the land that is the subject of this lawsuit is on Government Lot 3. The most relevant subsequent deeds did not exempted the right of way. Fletcher "went shopping" through less relevant extrinsic evidence for a subsequent Hilchkanum deed that she then wrongly construed to support her ridiculous contrived fact that an illiterate Duwamish Indian wrote his own deed to the railroad in 1887, and intended to convey unrestricted fee simple title.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        There were three deeds that conveyed the land construed in this lawsuit to outside parties. These are the deeds most relevant to this lawsuit. None of these three deeds excepted the right-of-way or the land under the right-of-way.

        The questions that Fletcher would not allow to go to a jury: What did these words excepting a right-of-way mean to the parties in those early days? Why is Hilchkanum inconsistent with this exception language in his subsequent deeds, including it in some, and not in others? Did Hilchkanum have adequate legal experience, or advice, to protect his interests in the execution of these deeds, considering the fact that he was an illiterate American Indian? Honestly answering those important questions would not support Rothstein's and Fletcher's dishonestly contrived facts and "legal" conclusions.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

The Railway, and its successor Burlington Northern, built a track on the strip of land and used the track regularly for rail service until approximately 1996. In 1997, Burlington Northern sold its railway corridor, including the Hilchkanum strip, to The Land Conservancy of Seattle and King County ("TLC").

On June 11, 1997, TLC petitioned the United States Surface Transportation Board ("STB") to abandon use of the corridor for rail service under the National Trail System Act, 16 U.S.C. § 1247(d) ("Rails to Trails Act"). The STB approved interim trail use of the corridor — called railbanking — by King County and issued a Notice of Interim Trail Use. The County then purchased the corridor from the TLC and obtained title to the right of way carved from the Hilchkanum property.(3)

The Rasmussens oppose King County's efforts to railbank the right of way and claim that King County has no right to use the right of way as a trail because the Railway and its successors held only an easement for railroad purposes. As a result, King County brought this action in state court to quiet title and to obtain a declaration of its rights in the strip. The Rasmussens removed the action to federal court and counterclaimed with allegations that King County violated their First, Second, Fifth, and Fourteenth Amendment rights and violated 16 U.S.C. § 1267(d), 42 U.S.C. § 1983, 28 U.S.C. § 1358, and Article 1, Section 16 of the Washington state constitution.

King County moved for summary judgment on its claim to the property and moved to dismiss the Rasmussens' counterclaims for failure to state a claim and for lack of subject matter jurisdiction. In response to these motions, the Rasmussens filed two over-length briefs and a declaration from Mr. Rasmussen containing several additional pages of legal argument. King County filed its reply and moved to strike the overlength portions of the Rasmussens' briefs and the legal arguments in Mr. Rasmussen's declaration. They also moved to strike inadmissible evidence from the briefs and the declaration. The Rasmussens filed a brief in response to King County's motion to strike as well as a separate surrebuttal brief. King County moved to strike the surrebuttal brief.

In a published opinion, the district court struck the overlength portions of the Rasmussens' response brief as well as the legal arguments in Mr. Rasmussen's declaration. See King County v. Rasmussen, 143 F. Supp. 2d 1225, 1227 (W.D. Wash. 2001). It also struck a paragraph in the response brief that indicated that Bill Hilchkanum was a Native American and was illiterate; the Rasmussens cited no evidence in support of this assertion in their brief to the district court. Id. at 1227-28. The district court also agreed to strike the surrebuttal brief. Id. at 1228. Finally, it granted King County's motion for summary judgment and dismissed the counterclaims. Id. at 1231. The Rasmussens appeal.



    Note from John Rasmussen:

    Did Judges Fletcher and Rothstein unfairly strike much of our argument and exhibits?

          Federal District Judge Rothstein struck all evidence of the East Lake Sammamish federal tax fraud scheme, and then failed to turn it over to federal prosecutors. Judge Fletcher does the same in this opinion.

          Fletcher is beyond strict in her use of the rules to strike our briefing and exhibits, but then she corrects King County's error when the County makes a goof. It's nice when the judge is on your legal team.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    After holding me to an unreasonable standard, Fletcher is incredible sloppy and inaccurate in her statements above.

          Judge Fletcher got the above facts almost right. The truth is that TLC did not railbank the ELS right-of-way as Fletcher states above. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

          Fletcher observes that we briefed the fact that Bill Hilchkanum was an illiterate Indian in our reply brief to District Court Judge Rothstein. This statement was struck by Rothstein and upheld here by Fletcher. The Hilchkanum right-of-way deed is signed with an "X" by both Hilchkanum and his wife. His illiteracy is established by that fact alone. Is Fletcher admitting she did not carefully read the Hilchkanum deed which she construes here? Fletcher and Rothstein ignore the fact of Hilchkanum's illiteracy and then manufactured ridiculous facts about Hilchkanum's authorship of his right-of-way deed without any evidence or documentation in support, and in violation of the rules of summary judgment. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

    The rules of procedure are not to be misused by a judge to manipulate the facts of a case and favor one party.

          The rules of procedure are designed for the efficient and fair operation of the court, not for judges to use to deny the establishment of the facts for only one of the parties in a lawsuit. As one reads this annotated version of Judge Fletcher's decision, one will realize that Fletcher and Rothstein used excessively strict application of the rules in order to deny my right to establish the facts before the court. Yet, in this opinion, Fletcher corrects a major error by King County. This favoritism, and the strict application of the rules of procedure and subsequent striking of our briefs and exhibits, goes hand-in-hand with their illegal application of summary judgment, in which my right to reestablish those facts before a jury was denied. My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

II.

Jurisdiction

The district court had jurisdiction over this removal action if King County could have brought the case in federal court in the first place. 28 U.S.C. § 1441(a). King County could have brought this action in federal court initially because the district court would have had federal question jurisdiction pursuant to 28 U.S.C. § 1331. King County's complaint included an allegation that it had a legal right to the strip of land in question even if the original deed conveyed only an easement. King County relied on 16 U.S.C. § 1247(d) as the source of this right. Thus, there was a federal question on the face of the well-pleaded complaint. See Patenaude v. Equitable Life Assurance Soc'y of United States, 290 F.3d 1020, 1023 (9th Cir. 2002) ("The presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule . . . ." (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)) (internal quotation marks omitted)).

This court has appellate jurisdiction over the district court's summary judgment pursuant to 28 U.S.C. § 1291.

III.

Motions to Strike

The Rasmussens argue that we should consider materials struck by the court below. The district court struck the overlength portions of the Rasmussens' briefs in response to King County's motions for summary judgment and to dismiss the counterclaims. It also struck legal arguments contained in John Rasmussen's declaration as well as the Rasmussens' surrebuttal brief.

The district court struck these materials on the basis of Western District of Washington Local Civil Rule 7, which limits the length of summary judgment briefs to twenty-four pages, limits the length of briefs relating to other motions to eight pages, and makes no allowance for surrebuttal briefs. Parties may file over-length briefs if they obtain prior permission from the court. The Rasmussens violated this rule by filing two thirty-four-page briefs without obtaining prior permission.(4) Mr. Rasmussen's declaration added further briefing well beyond the twenty-four-page limit. Declarations, which are supposed to "set forth facts as would be admissible in evidence," should not be used to make an end-run around the page limitations of Rule 7 by including legal arguments outside of the briefs. Fed. R. Civ. P. 56(e). As for the surrebuttal brief, the Rasmussens claim that it merely contained a response to the motion to strike. This is not so. It contains legal arguments on the motion to dismiss the counterclaims. The Rasmussens filed a separate response to the County's motion to strike, which the district court considered. Thus, the district court acted properly in granting King County's motions to strike.



    Note from John Rasmussen:

    What did Fletcher and Rothstein strike?

        King County actively participated in the federal tax fraud scheme used to railbank the East Lake Sammamish BNSF spur line. Here, Judge Fletcher upholds Rothstein's decisions to strike evidence of King County's crime.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      View the information struck by Rothstein in King County v. Rasmussen (2001), and upheld by Fletcher, here.

    Did Fletcher and Rothstein have the right to strike my legal arguments?

        Fed. R. Civ. P. 56(e) contains no restriction on legal argument, as Fletcher claims above. A rule denying a party the right to make legal argument would be in violation of the United States Constitution.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    To be fair, the rules must be applied equally to both parties.

        When we pointed out that King County's title officer had identified the wrong lot in his "expert declaration" and we called into question the validity of the County's claim to my land, Judge Fletcher went searching through the documents available to the court in order to reestablish the County's claim, and to correct King County's error. But, Judge Fletcher upheld Rothstein's striking of our statements about Hilchkanum's illiteracy and inability to participate in the construction of his deed. Documents supporting our argument were provided to Rothstien, yet she refused to search through our exhibits in order to establish our claim and refused oral arguments to clarify the issue. In Fletcher's case, she refused to acknowledge these documents even after they were briefed to her. The rules of the court are not for the purpose of dishonest judges manipulating the facts. That happened in this opinion with Fletcher and Rothstein ignoring Hilchkanum's disadvantage as an illiterate Native.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    Was it fair to strike the overlength portions of our briefs?

        Shortly before our initial briefing was due to the district court, my lawyer called Judge Rothstein's clerk, Christian Halliburton, to request overlength briefs. After a short conversation, the two agreed that it would be acceptable to request overlength briefs in the first paragraph of each submitted brief. Judge Rothstein's clerk should not have agreed to this procedure, on her behalf, if this were not a method acceptable to the judge. If Christian Halliburton acted on Rothstein's behalf, without her consent, Judge Rothstein, and now Judge Fletcher, should not have punished us for the clerk's mistake.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

For the most part, however, the fact that this material has been struck will not affect our review. The final pages of the summary judgment response brief do not contain separate legal arguments that are waived because they were not raised in the first twenty-four pages of the brief. Instead, they contain comparisons between the facts of this case and the facts of a Washington Court of Appeals case dealing with a railroad right of way. We must consider the effect of any case relevant to the arguments raised, regardless of whether the Rasmussens briefed the particular case.



    Note from John Rasmussen:

        Why did Judge Fletcher refer to "...the facts of a Washington Court of Appeals case dealing with a railroad right of way.", and not simply identify King County v. Squire (1990) as the case we briefed? A comparison of the Hilchkanum and Squire right-of-way deeds to the SLS&E, combined with the Squire court's analysis of the Squire deed, absolutely destroys Fletcher's and Rothstein's assignment of Hilchkanum as author of his deed. Fletcher was so concerned about drawing attention to Squire that she refused to even name the decision when she referred to it in her above statement. In her analysis of the easement-or-fee issue, Fletcher refused to acknowledge the precedent established in Squire.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



    The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

As for the counterclaims, the only claims not addressed in the first twenty-four pages of the brief opposing Rule 12(b) dismissal are the Rasmussens' takings claims. However, the district court did not consider these claims waived and instead dismissed them for failure to state a claim. Rasmussen, 143 F. Supp. 2d at 1231 (disposing of Fifth Amendment and state constitutional takings claims). Thus, we will address all of the Rasmussens' counterclaims.

IV.

Summary Judgment

A. Standard of Review

A grant of summary judgment is reviewed de novo. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). This court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001).



    Note from John Rasmussen:

        Summary Judgment is the vehicle that Ninth Circuit judges use to dishonestly force their preordained outcomes to the cases before them. Summary judgment is allowed under a limited number of circumstances. The critical issue is that the facts that control a case are in agreement. These are called material facts. If the material facts are in agreement, a judge can apply the law to the material facts to resolve the case, saving the cost and time of a jury trail. There is absolutely no agreement with the material facts in this opinion, but Fletcher lies and declares that there is agreement, granting herself complete control of the decision.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    Here are significant material facts that were not in agreement (in my opinion):

      It is a material fact to establish who wrote the Hilchkanum deed.

      The intention of the Hilchkanums in their right-of-way deed is a material fact.

      The intention of the Hilchkanums in their subsequent real estate deeds is a material fact.

      The purpose of the deed is a material fact.

      The ability of the Hilchkanums to participate in their railroad right-of-way deed is a material fact.

      It is a material fact to determine what was conveyed in the deed.

      It is a material fact to determine if King County's actions against me constituted a violation of my civil rights.

      It is a material fact that King County participated in a federal tax fraud scheme.

        No legitimate jury would agree to the ridiculous material facts that Fletcher used to decide this lawsuit. In order to keep determination of the facts away from a jury, Fletcher simply declared we agreed with all the material facts she used to decide the case. This is a lie. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

B. Validity of Conveyance Prior to Obtaining Fee Patent

The Rasmussens claim that Bill Hilchkanum did not have the power to convey anything more than an easement to the Railway because he had not perfected his title to the homestead when he made the conveyance in 1887. Under the Act of March 3, 1873, ch. 266, 17 Stat. 602 (1873),(5) a homesteader could convey a right of way to a railroad before perfecting his title. The use of the term "right of way" in the statute may have limited a homesteader to conveying only an easement, not a fee simple, to a railroad.

However, we need not answer this question to decide this case because Bill Hilchkanum perfected his title to the homestead property in 1884, three years before he conveyed the interest in the strip of land to the Railway in 1887. He entered the subject property in 1876 and took up residence there. The Homestead Act of 1862 provided that he could receive a certificate or patent at the expiration of five years from the date of entry if he provided proof that he had resided or cultivated the land for these five years, that he had not alienated any of the land, and that he had borne true allegiance to the United States. See Homestead Act, ch. 75, 12 Stat. 392 (1862). Bill Hilchkanum submitted the necessary proof and obtained his certificate of ownership in 1884. Since he had fulfilled all the necessary conditions of ownership, his title was perfected in 1884. As a result, he did not need to act within the restrictions of the Act of March 3, 1873 to alienate his property nor did he need to include an after-acquired property clause in his conveyances; he had title free and clear and could convey to the Railway whatever he wished.

Although Hilchkanum did not obtain his patent deed until 1888, the Rasmussens cite no authority suggesting that the certificate of ownership did not perfect his title, and their own expert opined that Hilchkanum obtained "unqualified and perfect fee simple ownership" in 1884. Graddon Decl. Ex. 1, §1 at 2. We affirm the district court's conclusion that there are no genuine issues of fact as to whether Hilchkanum had the power to convey a fee simple interest to the Railway in 1887.



    Note from John Rasmussen:

    Fletcher is wrong that Hilchkanum held "perfect" title in 1884:

          The Homestead Act does not support Fletcher's statement that Hilchkanum's title was perfected in 1884. The United States Supreme Court defined legal title as the issuance of patent. The United States Supreme court defined Hilchkanum's property interest in 1884 as an "inceptive title". An "inceptive title" is far inferior to a "perfect title" and would not allow Hilchkanum the property right that Fletcher describes above.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    Fletcher failed to realize that Hilchkanum, an "Indian", could not sell his land until five years after receiving patent:

          Hilchkanum did not file for homestead entry under the Homestead Act of 1862. Hilchkanum was not qualified for homestead entry under the Homestead Act of 1862 because he was a Native American "Indian". The right of Native Americans to homestead was not authorized until Congress passed the Act of March 3, 1875. The "Act of March 3, 1875" allowed Native Americans to homestead, but restricted "Indians" from selling their homestead land for five years from the date of patent. This federal law prohibited Hilchkanum from transferring fee simple of his homestead land until 1893.

    Fletcher failed to understand that Congress intended the grant of a "right of way" to be the grant of an easement, not fee title to the land:

          In the "Act of March 3, 1873", Congress intended an un-patented homesteader's grant of a right-of-way to convey only an easement, not fee simple title. Judge Fletcher had no right to assume that the grant of a right-of-way under 17 US Statute 602 as the grant of fee simple title. The United Supreme Court had found the intent of Congress, with those words, was to grant an easement.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

C. Easement or Fee Simple

King County claims that under Washington state law the Hilchkanum deed conveyed a fee simple estate in the strip of land to the Railway. The Rasmussens argue that, even if Hilchkanum had the power to convey a fee simple estate to the Railway, he intended to convey only an easement. The district court agreed with King County, as do we.

[1] A conveyance of a right of way to a railroad may be in fee simple, or it may be an easement. Veach v. Culp, 599 P.2d 526, 527 (Wash. 1979). The intent of the parties is of paramount importance in determining what interest the deed conveyed. Brown v. State, 924 P.2d 908, 911 (Wash. 1996). It has been said that it is a factual question to determine the intent of the parties. Veach, 599 P.2d at 527. But the intent of parties to a deed as well as the legal consequences of that intent are in reality mixed questions of law and fact: legal rules of deed interpretation determine how the underlying facts reflect the intent of the parties. See Brown, 924 P.2d at 912 (determining intent from undisputed underlying facts on summary judgment). To ascertain the intent of the parties, one must look to the language of the deed as well as the circumstances surrounding the deed's execution and the subsequent conduct of the parties.(6)Id. However, the parties must "clearly indicate" an intent to make a conveyance conditional. King County v. Hanson Inv. Co., 208 P.2d 113, 119 (1949) (cited in Brown, 924 P.2d at 912).



    Note from John Rasmussen:

        Above, Judge Fletcher correctly identifies the intent of the parties as the critical material fact in construing a deed. The intent is derived from contributing material facts which interact and combine to establish the material fact that is the intention of the Hilchkanums in their right-of-way deed. Summary judgment is allowed only when there is agreement with the material facts. Judge Fletcher knew that we disagreed with her about the intentions of the Hilchkanums in their right-of-way deed to the SLS&E, yet she dishonestly declared we were in agreement with that material fact, and denied my constitutional right to establish the Hilchkanum's intent before a jury.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        The Hilchkanums were Native American Indians. In their short lifetimes they had experienced the loss of their native lands and the establishment of white men as the dominant controllers of their lives. In Fletcher's statement above, she states "...the intent of parties to a deed as well as the legal consequences of that intent are in reality mixed questions of law and fact: legal rules of deed interpretation determine how the underlying facts reflect the intent of the parties [] To ascertain the intent of the parties, one must look to the language of the deed as well as the circumstances surrounding the deed's execution and the subsequent conduct of the parties.". Fletcher refused to look at the "...circumstances surrounding the deed's execution and the subsequent conduct of the parties.". American Indians in that time of our history cooperated with the white men who dominated their lives. If they resisted the white man's wishes, frequently they died. That is a historical fact. Instead of acknowledging the disadvantage the Hilchkanums and other Native Americans endured at that time of our history, Fletcher and Rothstein elevated the illiterate native American Hilchkanums to be clever lawyers, with full knowledge and the power of the law. Nothing in the history of the times or the documents presented to these dishonest judges suggests this conclusion of fact.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        In her last statement, above, Judge Fletcher takes us to King County v. Hanson Investment Company (1949). Norm Maleng's "legal theory" relies on a misapplication of Hanson as a basic element of its dishonest argument. Fletcher gives us her first "taste" of Hanson here.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

The Washington Supreme Court provided its most recent guidance on this issue in Brown.(7) The Brown court identified various factors to consider in determining whether a deed conveyed a fee simple or an easement:

    [W]e have relied on the following factors: (1) whether the deed conveyed a strip of land and did not contain additional language relating to the use or purpose to which the land was to be put, or in other ways limiting the estate conveyed; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal;(8) (7) whether the conveyance did or did not contain a habendum clause, and many other considerations.

Brown, 924 P.2d at 912.

The Brown court further explained that whether the parties to a railroad right of way deed used a statutory form deed is a significant factor in determining their intent. Brown, 924 P.2d at 912; see Roeder Co. v. K&E Moving & Storage Co., 4 P.3d 839, 841 (Wash. Ct. App. 2000). The court ruled that "where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed."(9) Brown, 924 P.2d at 912.

In this case, however, the Hilchkanum deed did not follow the statutory warranty form. The statutory form is as follows:

    The grantor (here insert the name or names and place of residence) for and in consideration of (here insert consideration), in hand paid, convey and warrant to (here insert the grantee's name) the following described real estate (here insert description), situated in the county of _____, state of Washington.

Laws of 1886, §3, pp. 177-78. The Hilchkanum deed used a slightly different form:

    In consideration of (here insert consideration), grantor (here insert name of grantor) does hereby donate grant and convey unto grantee (here insert name of grantee) the following described right of way (here insert description).

As a result, the Hilchkanum deed does not give rise to the presumption that the deed conveyed a fee simple. See Roeder, 4 P.3d at 843; Veach, 599 P.2d at 527 (no presumption that quitclaim deed conveyed fee simple). A failure to use the statutory warranty deed form, however, does not necessarily mean that the parties did not intend to convey a fee simple. The court must consider whether other factors indicate that the parties intended a fee simple.

Another factor on which the Brown court focused was if and how the deed uses the term "right of way." The court noted that use of the term in the granting clause as a limitation or to specify the purpose of the grant generally creates only an easement. Brown, 924 P.2d at 913. The term "right of way," however, can have two purposes: "(1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway." Id. at 914.

In Brown, the term "right of way" appeared only in each deed's legal description or in the description of the railroad's obligations, instead of in the granting or habendum clauses. The court concluded that "used in this manner, 'right of way' merely describes a strip of land acquired for rail lines." Brown, 924 P.2d at 914. Since the term did not qualify or limit the interest expressly conveyed in the granting and habendum clauses of the deeds at issue, the court concluded it did not indicate an intent to grant an easement only.(10)

[2] Here the term "right of way" appears in the granting clause as well as in the legal description.(11) In this sense, the Hilchkanum deed suggests a possible intent to create only an easement in a way the deeds at issue in Brown did not. However, neither the granting nor the habendum clauses contains language clearly limiting the use of the land to a specific purpose. In virtually all cases where Washington courts have found only an easement, the granting or the habendum clauses contained such language. See Swan v. O'Leary, 225 P.2d 199, 199 (Wash. 1950) (granting premises "for the purpose of a Railroad right-of-way"); Morsbach v. Thurston County, 278 P. 686, 687 (Wash. 1929) (conveying a "right of way for the construction of said company's railroad"); Pacific Iron Works v. Bryant Lumber & Shingle Mill Co., 111 P. 578 (Wash. 1910) (holding that deed providing "to have and to hold the said premises . . . for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors" granted easement); Reichenbach v. Washington Short Line Ry. Co., 38 P. 1126 (Wash. 1894) (construing deed which provided "so long as the same shall be used for the operation of a railroad" as an easement); King County v. Squire Inv. Co., 801 P.2d 1022, 1022 (Wash. Ct. App. 1990) (granting premises to railroad "so long as said land is used as a right-of-way by said railway Company, Expressly reserving to said grantors their heirs and assigns all their riparian rights. . . ."). Without such additional language, the use of the term "right of way" merely "begs the question" since a railroad could own a right of way either as an easement or in fee. Brown, 924 P.2d at 914.



    Note from John Rasmussen:

        Fletcher's above analysis identifies her as an active participant in the East Lake Sammamish federal tax fraud scheme. It is impossible to correlate her analysis with well understood common law in Washington State. She ignores one hundred years of consistently upheld common law which holds the grant of a "right-of-way" to a railroad conveys only an easement. Instead, for precedent, Fletcher provides citations which do not compare to the wording in the Hilchkanum deed. Further, Fletcher misrepresents the conclusions of the Squire court in her abbreviated citation above. The opinion of the Squire court that Squire's granting clause "...strongly suggests conveyance of an easement..." should be controlling precedent in this opinion because the Hilchkanum granting clause is identical to the Squire granting clause.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Instead of recognizing common law precedent, Fletcher dishonestly adopts Norm Maleng's "legal theory" which claims the Washington State Supreme Court reversed one hundred years of common law in Brown v. State of Washington (1996). Fletcher claims that the Hilchkanum deed grants fee simple title because "neither the granting nor the habendum clauses contains language clearly limiting the use of the land to a specific purpose". Later in her paragraph, Fletcher states that a deed cannot be an easement "[w]ithout such additional language". So, Fletcher now requires "additional language", a separate statement limiting the grant, in order to find an easement. This is a misapplication of King County v. Hanson Investment Company (1949), and is not supported in common law. The Hilchkanum deed granted a "right of way" to the SLS&E. For over one hundred years the grant of a "right of way" to a railroad has been held to convey only an easement in Washington State/Territory. Fletcher dishonestly denies that long held common law precedent in this pathetic excuse for a "legal opinion". My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

[3] The Hilchkanum deed contained precatory language indicating that the parties expected that the right of way would be used to construct and operate a railroad, but it did not actually condition the conveyance on such use.(12) Brown, 924 P.2d at 912-13. Also, in Brown, the court noted that identifying the general purpose of a conveyance, i.e., for railroad purposes, is not helpful in discerning intent because it does not clarify whether the right of way is an easement or a fee. Id. at 913.



    Note from John Rasmussen:

        Judge Fletcher finds the "consideration" language in the Hilchkanum deed to be "precatory". For authority, Fletcher cites Brown, 924 P.2d at 912-13. If one goes to Brown, they will find no discussion relating to this subject. But, there is legal precedent to consider. In King County v. Hanson Investment Company (1949), the court considered very similar words to be an expression of real compensation, and a condition of the grant. Hanson is legal precedent in Washington State and, if Judge Fletcher chooses to overturn that precedent, she has an obligation to provide some justification. Instead, we get her arrogant conclusion based on a citation to nowhere.
        (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

One Washington case, Veach, supports the Rasmussens' contention that the mere use of the term "right of way" in the granting clause of the Hilchkanum deed, without additional language conditioning the use of the interest, creates an easement. 599 P.2d at 527. In Veach, the 1901 deed stated:

    The said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars, . . . do by these presents remise, release, and forever quit claim unto said party of the second part, and to its assigns, all that certain lot, piece or parcel of land situated in Whatcom County . . . to-wit: "A right of way one hundred feet wide, being fifty feet on each side of the center line of the B.B. & Easter R.R. . . . . To have and to hold, all and singular, said premises, together with the appurtenances unto the said party of the second part, and to its assigns forever."

Id. Like the Hilchkanum deed, the language in the Veach deed did not expressly limit the use to a particular purpose. However, the district court distinguished Veach on the basis of other language in the Hilchkanum deed and extrinsic evidence indicating an intent to convey a fee simple estate, neither of which was present in Veach. Rasmussen, 143 F. Supp. 2d at 1230 n.4.



    Note from John Rasmussen:

        Here, Fletcher admits her previous discussion is incorrect, by agreeing that the material elements construed in Veach compare well to the elements in the Hilchkanum right-of-way deed. But then, she distinguishes the Veach deed from the Hilchkanum deed because of the secondary grant in Hilchkanum and the extrinsic evidence. Both of these reasons to distinguish are dishonest, and are discussed in detail in the expanded and documented discussion of this opinion.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Early in this opinion, Fletcher promised to discuss a certain unnamed "Washington Court of Appeals case dealing with a railroad right of way" at the appropriate position in her opinion. This is the position where she is required by law to discuss King County v. Squire (1990). She fails, miserably, to uphold her promise. An honest comparison of the Hilchkanum and Squire right-of-way deeds to the SLS&E destroys her legal argument in this opinion, so Fletcher simply ignores her obligation to consider King County v. Squire, and ignores the conclusions in that opinion.
        (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

[4] First, the district court compared the Hilchkanum deed's language granting an interest in the strip of land with its language granting the Railway the right to enter the adjacent land to cut trees:

    The deed grants a "strip" of land described in metes and bounds rather than merely a right "over" the land (as it does with the tree-cutting grant). The deed uses the word "convey" when granting the strip, which is associated with fee transfers (notably, "convey" is absent in the tree-cutting grant). See Hanson, 208 P.2d at 119.

Id. We agree with the district court that these factors indicate that Hilchkanum intended to convey a fee simple interest in the strip of land described. Furthermore, the fact that he explicitly limited the purpose of the Railway's right to enter the adjacent land demonstrates that he was aware of the distinction between an easement and a fee simple conveyance.(13)



    Note from John Rasmussen:

        Judge Fletcher lies when she states that Hilchkanum right-of-way deed grants a "strip of land". This lie is a basic element of Norm Maleng's "legal theory".

        It is a lie that the word "convey" is associated only with fee simple conveyances.

        It is completely dishonest to claim the secondary grant in the Hilchkanum deed signals Hilchkanum's intentions in his primary grant.

        These three statements describing wrongdoing or criminal actions are an expression of my opinion.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

[5] The district court also looked to the behavior of the parties after the execution of the deed to the Railway, which bolsters the conclusion that the deed conveyed the right of way in fee. Rasmussen, 143 F. Supp. 2d at 1230. Some of the deeds that the Hilchkanums subsequently used to convey the rest of their property explicitly excepted the strip of land belonging to the Railway. The deeds conveyed the surrounding property "less (3) acres right of way of Rail Road." By excepting the right of way in terms of acres of land, the conveyances betray an understanding that the Railway owned the strip of land and did not merely have a right to enter the strip.

The Rasmussens point out that the Hilchkanums did not mention the railroad right of way in the deed conveying lot 2, which is where most of the strip to which the Rasmussens lay claim is located. However, this does not bring into dispute the fact that the Hilchkanums intended a fee simple. Had they used other language in conveying lot 2 that recognized the Railway's right of way as only an easement, then a factual finding reconciling the contradictory positions might be necessary. But the total failure to except the land subject to the right of way in the lot 2 deed is not significantly probative of whether or not the parties intended to convey a fee simple estate. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (noting that a scintilla of evidence or evidence that is not significantly probative does not present a genuine issue of material fact).



    Note from John Rasmussen:

        Judge Fletcher lies when she states that Hilchkanum subsequent deeds excepted a "strip of land". The deeds excepted a "right-of-way". Once again, Fletcher changes the words in a deed and then construes her substituted language.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        It is obscene that Fletcher disregards the more relevant subsequent Hilchkanum deeds which do not except the right-of-way. Fletcher claims these deeds do not provide a "scintilla of evidence". If one accepts Fletcher's misinterpretation of exception law, these deeds show that Hilchkanum conveyed the same portion of his right-of-way land to two different parties. It would be critical to resolve this issue. It would be "significantly probative" to examine this violation of the law. Does Senior Federal Circuit Judge Fletcher believe a person can sell the same piece of land to two different parties? It is completely dishonest for Fletcher to dismiss this glaring conflict in her legal "reasoning" with her arrogant and dismissive "scintilla" comment. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

[6] Finally, the district court properly looked to the circumstances surrounding the execution of the Hilchkanum deed and concluded that they confirmed the parties' intent to convey a fee simple estate. Rasmussen, 143 F. Supp. 2d at 1230. Deeds to the Railway from other landowners executed in the same year as the Hilchkanum deed used the same form but contained additional language explicitly restricting the grant to railroad purposes and providing that the interest would revert to the grantor if the railroad ceased to operate. See Squire, 801 P.2d at 1023; Northlake Marine Works, Inc. v. City of Seattle, 857 P.2d 283, 286-87 (Wash. Ct. App. 1993). The differences in these deeds reflected the common practice of the railroads of using fee simple form deeds and adding language to include limitations requested by landowners. See Danaya C. Wright & Jeffrey M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements From the Nineteenth to the Twenty-First Century, 27 Ecology L.Q. 351, 378 (2000). The deed in question here suggests that the Hilchkanums requested no such limitations.



    Note from John Rasmussen:

        Fletcher contradicts herself with this discussion of railroad "form deeds". Above at "C. [6]", Fletcher refers to "Pipes, Wires, and Bicycles:" and states that railroad form deeds were written in language designed to convey "fee simple", title. Fletcher then applies this "rule" to the Hilchkanum right-of-way deed. But, at "C. [1]" in this opinion, Fletcher stated that "...the Hilchkanum deed does not give rise to the presumption that the deed conveyed a fee simple." So, did the Hilchkanum right-of-way deed not give rise to the presumption that it is fee simple, as Judge Fletcher states at "C. [1]"? Or, does it give rise to the presumption that is fee simple, as Judge Fletcher states at "C. [6]", directly above? Apparently, the presumption can switch back and forth to be whatever Fletcher needs to justify her various contradictory conclusions.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Fletcher misrepresents the conclusions in King County v. Squire (1990). An honest analysis of Squire destroys Fletchers argument that the Hilchkanum right-of-way deed grants fee simple title to the Railway.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        In her above paragraph, Judge Fletcher adopts Norm Maleng's "legal theory" with this statement: "Deeds to the Railway from other landowners executed in the same year as the Hilchkanum deed used the same form but contained additional language explicitly restricting the grant to railroad purposes and providing that the interest would revert to the grantor if the railroad ceased to operate.......The deed in question here suggests that the Hilchkanums requested no such limitations.". Fletcher's requirement for a separate statement limiting the grant ignores the "Railroad Right-of-Way Granting Rule" and one hundred years of Washington State legal precedent.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

[7] In conclusion, "[t]he language of the deed, the behavior of the parties, and the circumstances converge to show the Hilchkanums' intent to convey a fee simple." Rasmussen, 143 F. Supp. 2d at 1230-31. The underlying facts are undisputed, and, viewing these facts in the light most favorable to the Rasmussens, as we must on summary judgment, we conclude that King County, as the Railway's successor, possesses a fee simple in the strip of land.(14) We, therefore, affirm the district court's summary judgment in favor of King County.



    Note from John Rasmussen:

    Above, Judge Fletcher makes this outrageous statement.

      "The underlying facts are undisputed..."

        The truth is that Judge Fletcher cherry picked the "underlying facts", ignoring "underlying facts" that destroy her argument, and misconstruing the effect of the "underlying facts" she allowed to be considered. It's obscene for her to imply that there is agreement with the material facts. But, Fletcher needed to make this dishonest statement in order to justify her misuse of summary judgment. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

V.

Counterclaims

The district court dismissed all of the Rasmussens' counterclaims either for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). We review these dismissals de novo, see Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001) (reviewing 12(b)(6) dismissal de novo); La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir. 2001) (reviewing 12(b)(1) dismissal de novo), and we affirm.

A. Takings

The Rasmussens argue that they are entitled to just compensation for the taking of their land by the government under the state constitution and the Fifth Amendment. See Wash. Const., Art. 1, § 16. Their takings claim requires a finding that the Rasmussens own the strip of land. Because King County owns the strip of land in fee simple, the Rasmussens' land was not taken, and they can state no claim for which relief can be granted.

B. Spur Line Arguments

The Rasmussens argue that King County's title to the right of way is invalid because the STB lacked subject matter jurisdiction to order interim trail use over the railroad right of way. They claim the rail line in question is a spur line over which the STB has no jurisdiction. As the district court wrote, "[b]y challenging the STB proceedings, the Rasmussens are asking the court to reverse an STB order." The courts of appeals have exclusive jurisdiction over any proceeding "to enjoin or suspend, in whole or in part, a rule, regulation, or order of the STB . . . ." 28 U.S.C. § 2321(a); Dave v. Rails-to-Trails Conservancy, 79 F.3d 940, 942 (9th Cir. 1996) (finding that district court has no jurisdiction to hear claims that have the practical effect of seeking review of an ICC (now STB) order).

No authority supports the Rasmussens' proposition that, in spite of 28 U.S.C. § 2321, the district court had jurisdiction to consider the subject matter jurisdiction of the STB. The Rasmussens cite Powelson v. United States, 150 F.3d 1103, 1105 (9th Cir. 1998), which holds that a statute may create subject matter jurisdiction yet not waive sovereign immunity. They then argue that, because it is not clear whether Congress has waived sovereign immunity of the STB deliberations, there must be subject matter jurisdiction. This argument has no merit. The non-waiver of sovereign immunity does not supply subject matter jurisdiction.

The Rasmussens also rely on 28 U.S.C. § 1336(b), which allows a district court to refer a question or issue to the STB and to exercise "exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the STB arising out of such referral." This case involves no such referral, and § 1336(b) does not give the district court any power to refer a question that challenges the STB's jurisdiction to issue an order that it has already issued. The STB implicitly has answered this question by asserting jurisdiction over the rail line; judicial review of the order must be obtained directly from a court of appeals as provided by 28 U.S.C. § 2321(a).

C. First Amendment

The Rasmussens contend that their First Amendment right to petition the government for redress has been violated because King County refused to communicate with them. In the Rasmussens' Answer and Counterclaim and in their briefing to the district court, the Rasmussens also argued that King County had violated their right to free speech. They argued that a letter from King County officials threatening to bring criminal harassment charges against Mr. Rasmussen constituted an impermissible prior restraint on his ability to say that "he shall defend his life and his property, and that he shall arm himself." The letter apparently arose after Mr. Rasmussen threatened county employees who entered the railroad right of way bisecting his land. The Rasmussens now focus only on their right to petition the government for redress of grievances.



    Note from John Rasmussen:

        Here, Fletcher convicts me of a crime without any trial or legitimate hearing. Fletcher lies with her above statement:

      "...Mr. Rasmussen threatened county employees who entered the railroad right of way bisecting his land."

        It would be nice if Fletcher had pointed to any legal determination of that fact. Where is any evidence of this unfounded lie? This is pure, unadulterated slander. Further, Fletcher poisons my appeal by making such a harmful and dishonest statement of fact. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

        If I had illegally "threatened county employees", King County would have prosecuted me. The County was eager to make an example of a citizen who resisted its illegal actions. King County didn't prosecute me because the "threats" it described were slanderous lies. The slanderous legal declarations manufactured by the County are described and provided with my annotated version of the hearing for a preliminary injunction in King County Superior Court.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Open the expanded and documented discussion of this note.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

Counties are liable for constitutional violations under § 1983 only if the individual officer who committed the violation was acting pursuant to a local policy, practice or custom. Monell v. Dep't of Soc. Serv., 436 U.S. 658 (1978). The Rasmussens have failed to allege any local policy, practice or custom here. They attempt no response to this argument in their briefing to this court. The First Amendment claim was properly dismissed for failure to state a claim.



    Note from John Rasmussen:

        We described fifteen months of stonewalling by the County. In a legitimate court, we would have had the right to show how the intentional stonewalling by county officials would constitute a policy to violate my constitutional rights. This is a fact that is not Fletcher's right to establish. It is my right to establish this fact before a jury. Judge Fletcher does not believe in a person's legal right to a jury. (My statements describing wrongdoing or criminal actions in this paragraph are a First Amendment expression of my opinion.)

      View evidence of stonewalling: Fifteen months of unanswered letters.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

D. Second Amendment

John Rasmussen contends that King County violated his Second Amendment right to bear arms when it obtained an order prohibiting Rasmussen from possessing a gun. This claim must fail for the same reason the First Amendment claim fails — the failure to allege that the violation occurred pursuant to a county custom or practice. Id.

E. Fourteenth Amendment Due Process and Eminent Domain

The Rasmussens argue that they have lost their property right in the railroad right of way without due process of law and that their property has been condemned by the government. They also claim that King County owes them compensation for the wrongful exercise of the federal government's power of eminent domain through the STB. These claims presume that the Rasmussens held a reversionary interest in the right of way because the original deed conveyed only an easement. Because we affirm the district court's holding that the original deed conveyed a fee simple, the Rasmussens have no rights in the subject property on which to base a due process or eminent domain claim. The district court properly dismissed these claims.



    Note from John Rasmussen:

        This conclusion is based on the house of cards that Fletcher and Rothstein have built to hide the East Lake Sammamish federal tax fraud scheme.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

F. Violations of Local Ordinances

The Rasmussens contend that King County violated various local ordinances in using the railroad right of way. These claims do not appear in the Rasmussens' Answer, Affirmative Defenses and Counterclaims. The Rasmussens never amended their counterclaims to include these new claims. The district court did not consider them. Neither will we.

VI.

CONCLUSION

We affirm summary judgment in favor of King County because there are no genuine issues of fact that disparage King County's claim to a fee simple estate in the strip of land formerly used as a railroad right of way. Further, the district court properly dismissed the Rasmussens' counterclaims under Federal Rule of Civil Procedure 12(b).

AFFIRMED.



        My statements describing wrongdoing or criminal actions in this "Conclusion" are a First Amendment expression of MY OPINION.

    Conclusion by John Rasmussen:

    Where do I go to have my rights as an American citizen reinstated?

        I went to Federal District Court with evidence of a federal tax fraud scheme that not only stole millions from the American people, but stole hundreds of thousands from my family and my neighbors. Federal District Judge Barbara Jacobs Rothstein struck evidence of the fraud, denied my right to establish the facts, and then illegally used summary judgment to cover up the crimes of the powerful folks who worked the federal tax fraud scheme. I still believed in our judicial process. I believed I would get justice with this appeal.

        In this opinion, Senior Circuit Judge Betty Binns Fletcher, Circuit Judge Ronald M. Gould, and Federal District Judge Mary H. Murguia made the choice to protect Judge Rothstein rather than to recognize and uphold my rights as an American citizen. They refused to expose the East Lake Sammamish federal tax fraud scheme. While there is dishonesty and misapplication of the law in essentially every paragraph of this opinion, I identify the most dishonest tactics with the hyperlinks directly below.

      * Judge Fletcher illegally allowed summary judgment.

        Summary judgment is allowed only when there is agreement with the material facts. I identify eight disputed material facts. Fletcher ignored the truth and used lies in the place of each of these facts.

          Open the section of this annotated opinion which discusses the illegal application of summary judgment.

      * Judge Fletcher changed the words in the deeds she construed.

        The grant of a right-of-way to a railroad has always been held to grant an easement under Washington common law. Judge Fletcher and her fellow federal judge, District Judge Rothstein, changed the words of the Hilchkanum right-of-way deed when they construed its meaning. Fletcher and Rothstein state that a "strip of land" was conveyed to the railroad in spite of the fact that the deed states a "right of way" is conveyed.

          Open the section of this annotated opinion in which Judge Fletcher states that the Hilchkanum right-of-way deed grants a "strip of land".

        In her "analysis" of extrinsic evidence, Judge Fletcher changes the words in Hilchkanum's subsequent deeds and then analyzes her substituted language instead of the actual words in those deeds.

          Open the section of this annotated opinion in which Judge Fletcher changes the words in Hilchkanum's subsequent deeds, and then analyzes her substituted language rather than the actual language.

      * Judge Fletcher cherry-picked the intrinsic evidence in order to misrepresent the Hilchkanum's intentions.

        In her "analysis" of Hilchkanum's subsequent real estate deeds, Fletcher ignored the deeds in the chain of title of the land contested in the lawsuit and used less relevant subsequent deeds. As, explained above, Fletcher then changed the words in these less relevant deeds in her "analysis". Further, Fletcher refused to admit that the consequence of her dishonest analysis would have Hilchkanum selling his land twice.

          Open the section of this annotated opinion in which Judge Fletcher ignores and dismisses the significance of the deeds which destroy her argument, by declaring they provide not a "scintilla of evidence".

      * Judge Fletcher hid the common law opinion which destroys her argument, King County v. Squire (1990).

        Two SLS&E right-of-way deeds had been construed in Washington courts prior to the Hilchkanum deed. Both were found to be easements. Further, about twelve SLS&E deeds were involved in Lawson v. State (1986). My understanding is that King County admitted that they all conveyed easements to the Railway. The common law opinion which is most destructive to Judge Fletcher's dishonest argument is King County v. Squire (1990). Fletcher refused to even name Squire when she referred to our analysis of that opinion. More important, Fletcher refused to consider Squire when she was required to in her "analysis".

          Open the section of this annotated opinion in which Judge Fletcher ignores and refused to discuss King County v. Squire (1990).

      * Judge Fletcher became an active participant in the East Lake Sammamish Federal Tax Fraud Scheme by striking all evidence of the crime and adopting Norm Maleng's "Legal Theory".

        The East Lake Sammamish federal tax fraud scheme is the unstated event that is the reason for the complete dishonesty in this opinion. Judge Fletcher hid evidence of the tax fraud scheme by upholding the striking of that evidence which I presented to federal district court. Fletcher further hid the tax fraud scheme by adopting Norm Maleng's "legal theory", the dishonest legal argument concocted by Norm Maleng and his staff to cover their participation in the tax fraud.

          Open the section of this annotated opinion in which Judge Fletcher upholds the striking of evidence of the East Lake Sammamish federal tax fraud scheme.

          Open the section of this annotated opinion in which Judge Fletcher adopts Norm Maleng's "legal theory", which dishonestly contends the Washington State Supreme Court reversed one hundred years of common law in Brown v. State of Washington.

        We will always have dishonest judges, like Rothstein, Fletcher, Gould and Murguia, in our courts. That's why we have courts of appeal. A legitimate legal system corrects the bad opinions issued by dishonest or incompetent judges. But, that didn't happen here. My appeal to have the opinion reviewed by the Ninth Circuit, en banc, was denied. The U.S. Supreme Court also refused to accept my appeal.

        I foolishly believed, at each level of government and every court level, that my rights would be recognized under the law and the Constitution. This never happened. I never found an honest politician who would stand up for the law. I never found an honest judge who would recognized my rights under the law.

        Neighbors of mine along Lake Sammamish, the Rays, took a "sister case" through State court. Since the Ray's property is located within the original Hilchkanum homestead, the State courts construed the same Hilchkanum right-of-way deed to the SLS&E that was "construed" in this opinion. The Rays lost, too. The Chief Judge of the Washington State Appeals Court, Division One, Ronald Cox, based his opinion on these dishonest federal decisions. The Washington State Supreme Court denied appeal. I believe that the most cowardly and dishonest decisions by appeals judges are the denial of appeal of worthy cases. The refusal of the Ray's appeal required no written justification or oral statement by the judges of the Washington State Supreme Court. These judges had a responsibility to protect the property rights of the Rays, and an obligation to correct the harm done to Washington State property law precedent by the federal judges. The Washington State Supreme Court had no moral or legal right to refuse the Ray's appeal, but they did.

      View my March 31, 2009 public letter to the Judges of the Washington State Supreme Court.

        With the exception of the judges of the U.S. Supreme Court, I believe that the judges at every level were aware of the dishonesty and corruption involved in these decisions, and were aware of the tax fraud scheme that influenced these federal decisions.

        The United States Supreme Court is isolated from we-the-people. It is unlikely the United States Supreme Court was aware of the federal tax fraud scheme that caused the theft of my land and the denial of my rights in court. But the United States Supreme Court is well aware that it overturns a disproportionate number of Ninth Circuit decisions. The Supreme Court is aware of the outright dishonesty of some of these decisions. Yet, the United States Supreme Court does nothing to correct the criminal activity of its lower court judges and protect the rights of Americans. The United States Supreme Court is ultimately responsible for these dishonest federal court decisions. By its policy of refusing to condemn dishonest lower court judges, the United States Supreme court became the enabler for the criminal actions against me in the Ninth Circuit.

        My statements describing wrongdoing or criminal actions in this "Conclusion" are a First Amendment expression of MY OPINION.

    Listed below are the other opinions and rulings that relate to the issues I describe on this website:

      King County v. Rasmussen (2001)

      Ray v. King County (2004)

      Ray v. King County (2004) (Dissenting)

      Understand How My Complaint of Judicial Misconduct was Dismissed

      Complaint of Judicial Misconduct, February 10, 2004

      Schroeder denial of Complaint of Judicial Misconduct

    Reference:

      View King County v. Rasmussen (2002) in PDF format, without my additional comments.

      View King County v. Rasmussen (2002), with brief comments. (More readable!)



The following is a portion of King County v. Rasmussen (2002) by Senior Ninth Circuit Judge Betty Binns Fletcher.

Footnotes:

1. The Honorable Mary H. Murguia, United States District Court Judge for the District of Arizona, sitting by designation.

2. To the extent a portion of the right of way bisects lot 5, that portion is not at issue in this quiet title action. King County bases its claim on the Hilchkanum deed conveying a right of way bisecting lots 1, 2, and 3 to the Railway. The County presented no deed conveying a right of way across lot 5 to the Railway.

3. The Rasmussens contend that King County has not provided evidence that it has an interest in a significant portion of the strip of land bisecting the Rasmussens' property. They claim that the only evidence provided by the County is a title insurance document that refers solely to the portion of the strip on Government Lot 3; only 3% of the subject strip is on Government Lot 3. However, King County has also provided the quitclaim deed by which TLC transferred its interest to King County. This deed indicates that the portion of the strip on Government Lot 2 was also conveyed; the Rasmussens assert that 96% of the strip lies on Government Lot 2. Thus, King County has submitted undisputed evidence that it has an interest in the subject property.

4. The Rasmussens claim that their failure to obtain prior approval to file over-length briefs was due to a miscommunication with the district court's law clerk. However, Rule 7 unambiguously requires prior approval to file briefs exceeding the page limitations set forth in the rule.

5. The Act provides that:
[A]ny person who has already settled or hereafter may settle on the public lands of the United States, either by pre-emption, or by virtue of the homestead law or any amendments thereto, shall have the right to transfer by warranty, against his or her own acts, any portion of his or her said pre-emption or homestead for church, cemetery, or school purposes, or for the right of way of railroads across such pre-emption or homestead, and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their pre-emptions or homesteads. Act of March 3, 1873, ch. 266, 17 Stat. 602 (1873) (emphasis added). This statute remains on the books, in slightly altered form, at 43 U.S.C. §174.

6. A finding of ambiguity in the language of the deed is not required to consider extrinsic evidence of the surrounding circumstances and the subsequent conduct of the parties. Brown, 924 P.2d at 912; Roeder Co. v. K&E Moving & Storage Co., 4 P.3d 839, 841 (Wash. Ct. App. 2000).

7. The Brown court examined deeds created from 1906 to 1910.

8. The Washington courts in recent years have not given much weight to the amount of consideration in determining the intent of the parties, particularly if the record does not establish the consideration typically paid for easements as opposed to fee simple estates. For example, the Brown court did not give this factor much weight because it could not be ascertained from the record whether the consideration paid for the conveyances repre- sented the value of an easement or a fee simple. Brown, 924 P.2d at 914. Likewise, in Roeder, 4 P.3d at 842, the Washington Court of Appeals noted that the fact that nominal consideration was paid did not reveal much because railroads paid significant amounts for both easements and fee simple purchases. In this case, the Hilchkanums received no monetary consideration for the conveyance to the railroad. However, like the nominal consideration in Roeder, the lack of monetary consideration here reveals little about the Hilchkanums' intent. Both an easement and a fee simple would have had monetary value, but the Hilchkanums declined to require any payment.

9. Washington Revised Code § 64.04.030 states that every deed that follows the statutory warranty deed form "shall be deemed and held a conveyance in fee simple to the grantee, his heirs, and assignes . . . ." This rule originated in 1886. Roeder, 4 P.3d at 841 n.8.

10. In a previous case, the Washington Supreme Court had held that the legal description of the interest conveyed is part of the granting clause. Veach, 599 P.2d at 527. But Brown distinguished the language used in the legal description from the language used in the granting clause. Brown, 924 P.2d at 914.

11. The Hilchkanum deed is also captioned as a "Right of Way Deed." However, the Brown court rejected the contention that use of the term "right of way" in the caption would preclude a holding that a deed conveyed a fee simple interest. Brown, 924 P.2d at 915.

12. The deed provided: "In consideration of the benefits and advantages to accrue to us from the location construction and operation of the Seattle Lake Shore and Eastern Railway in the County of King in Washington Territory, we do hereby donate grant and convey unto said Seattle Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands . . . ." DeGoojer Decl. Ex. 1 (emphasis added).

13. The Rasmussens provided evidence to the district court that Hilchkanum could not read or write the English language, suggesting that he was not aware of the wording in the deed and its effect. While the district court struck this argument from their response brief, the evidence itself was not struck. We have considered the evidence since it is part of the district court record. Nevertheless, the evidence indicates that Hilchkanum relied on friends in transacting his business. With the help of his friends, he was able to comply with the Homestead Act and make numerous conveyances of property. There is no evidence that his friends did not assist him with the transaction with the Railway such that he understood the deed's language and could reflect his intent therein.

14. The Rasmussens argue that the Hilchkanum deed incorrectly describes the boundaries of the right of way on which the railroad tracks lie. This does not alter King County's right to the strip of land in question. According to DD&L, Inc. v. Burgess, 51 Wn. App. 329, 753 P.2d 561, 564 (Wash. Ct. App. 1988), "[t]hough the monument referred to in a deed does not actually exist at the time the deed was drafted, but is afterward erected by the parties with the intention that it shall conform to the deed, it will control." The Hilchkanum deed describes the location of the railroad right of way by referring to railroad tracks not yet erected but which were erected with the intention that the location of the tracks would conform to the deed. Thus, the location of the tracks bisecting the Rasmussens' property controls.