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Footnotes

Washington State Supreme Court
[Nos. 62217-5; 61376-1; 61375-3. En Banc.]
Argued January 16, 1996. Decided October 17, 1996.

JOHN F. BROWN, JR., ET AL., Appellants, v. THE STATE OF WASHINGTON, Respondent.
PAUL HERMAN HARDER, ET AL., Respondents, v. THE STATE OF WASHINGTON, Appellant.
NORMAN BAILEY, ET AL., Respondents, v. THE STATE OF WASHINGTON, Appellant.

1. Ch. 152, 1, 18 Stat. 482 (current version at 43 U.S.C.A. 934-939). The 1875 Act granted "right[s] of way through the public lands of the United States" where rail lines were already located or over which lines would be built in the future. 43 U.S.C.A. 934.

2. The State paid $1.9 million for Milwaukee's railways in Adams, Kittitas, Whitman, Spokane, and Grant counties.

3. Bailey v. State, No. 88-2-00205-1 (Whitman County filed Dec. 22, 1988); Brown v. State, No. 88-2-00118-1 (Kittitas County filed May 5, 1988); Harder v. State, No. 88-2-00137-9 (Adams County filed Dec. 16, 1988).

4. Since we are reviewing summary judgments, we apply the same standard as the trial court. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). In this case, where both parties have agreed no material facts are in dispute, the only issue is a question of law. Department of Labor & Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993).

5. Since before statehood, the Legislature has provided that deeds patterned after state statute are deemed to convey fee simple title and carry certain warranties. The territorial Legislature first provided every deed in the following form is deemed to convey fee simple title:

    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 or names), the following described real estate (here insert description), situated in the county of _____, state of Washington. Dated this __ day of _____18__. (Seal)

LAWS OF 1886, 3, pp. 177-78. This law was codified at REM. & BALL. CODE 8747 (1909) and presently as RCW 64.04.030. The statutory form alleviated drafting and interpretation problems manifest under the prior system, especially in cases like this where the parties to the deeds are deceased and the evidence consists solely of the deeds themselves. This form is now universally used and relied upon. 17 William B. Stoebuck, WASHINGTON PRACTICE, REAL PROPERTY 7.2 (1995).

6. The court quoted Swan, 37 Wn.2d at 537: [W]hen the granting clause of a deed declares the purpose of the grant to be a right of way for a railroad the deed passes an easement only, and not a fee with a restricted use, even though the deed is in the usual form to convey a fee title. Roeder, 105 Wn.2d at 572.

7. "HEREBY GRANTING AND CONVEYING to said Company, its successors and assigns, a fee simple title to said strip of land together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain." Clerk's Papers (Brown) at 39 (emphasis added).

8. Strictly construing the condemnation statute, the court held that fee title would not vest in a condemning corporation unless the statute that authorizes condemnation expressly authorizes the corporation to acquire fee title. Because REM. & BAL. CODE 927 (1909) referred only to "legal title," the railroad could only acquire an easement. Neitzel, 65 Wash. at 107. Neitzel followed the generally recognized rule that a railroad could not hold fee simple title to land acquired by eminent domain absent specific statutory authority. 1 PHILIP NICHOLS, THE LAW OF EMINENT DOMAIN 192 (2d ed. 1917); 26 AM. JUR. 2D Eminent Domain 137 (1966).

9. Several of the deeds reserve or except the right of the grantor to make some use of the land conveyed. For example, in the Wold deed, the grantors conveyed "fee simple title to said strip of land except as to rights of owners of [i]rrigation ditch. . . ." Clerk's Papers (Brown) at 30. In the Wilson deed, the grantors conveyed fee simple title "except" a mineral reservation. In addition, Milwaukee agrees to maintain farm crossings or other improvements in many of the deeds. The reservation or exception of mineral or irrigation rights is consistent with the conveyance of a fee; it would not have been necessary to reserve such rights had the parties intended an easement because the grantors would have retained use of the land. See Nature Conservancy v. Kolb, 313 Ark. 110, 853 S.W.2d 864 (1993). Similarly, the obligation to construct or maintain farm crossings or irrigation channels is consistent with the conveyance of fee simple title. These provisions secure easements to the grantors across the land conveyed to Milwaukee, and probably would have been unnecessary had Milwaukee only held the rights of way as easements. See Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887, 893 (1962); Battelle v. New York R.R, 211 Mass. 442, 97 N.E. 1004 (1912); cf. Roeder, 105 Wn.2d at 573 (reservation to the grantor of the right to make certain use of the property is consistent with the conveyance of a fee).

10. Because we hold the deeds conveyed fee simple title, we need not reach the State's standing issue.

11. Judge Friel's discussion of this topic in his memorandum opinion is a benchmark of excellence.

12. Scott v. Wallitner, 49 Wn.2d 161, 162, 299 P.2d 204 (1956) (citing Morsbach v. Thurston County, 152 Wash. 562, 278 P.2d 686 (1929); Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950); A.M.S., Annotation, Deed to Railroad Company as Conveying Fee or Easement, 132 A.L.R. 142 (1941)).

13. Morsbach, 152 Wash. at 571;
Roeder, 105 Wn.2d at 572;
Veach, 92 Wn.2d at 573.

14. In every case where this court has considered a deed conveying an interest in a narrow strip of land to a railroad company we have found only easements. See Biles v. Tacoma O. & G.H. R.R., 5 Wash. 509, 32 P. 211 (1893); Reichenbach v. Washington Short Line Ry., 10 Wash. 357, 360, 38 P. 1126 (1894); Pacific Iron Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 111 P. 578 (1910); Neitzel v. Spokane Int'l Ry., 65 Wash. 100, 117 P. 864 (1911); Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686 (1929); Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950); Veach v. Culp, 92 Wn.2d. 570, 599 P.2d 526 (1979); Zobrist v. Culp, 95 Wn.2d 556, 627 P.2d 1308 (1981); Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855 (1986); Lawson v. State, 107 Wn.2d. 444, 730 P.2d 1308 (1986); see also King County v. Squire Inv. Co., 59 Wn. App. 888, 801 P.2d 1022 (1990), review denied, 116 Wn.2d 1021, 811 P.2d 219 (1991).

15. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed.165 (1945).

16. Our cases also consider extraneous circumstances regardless of deed language, no matter how clear. Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 742-43, 844 P.2d 1006 (1993) (citing Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).

17. The preprinted railroad deed language specifies "'HEREBY CONVEYING a strip, belt or piece of land fifty feet in width on each side of the center line of the Railway of said Company, as now located and established over and across said land.'" Majority op. at 434 (quoting Clerk's Papers (Bailey) at 532) (emphasis added). As Judge Friel noted: "It was not an uncommon instance for the formal acquisition of the railroad to occur after the railroad was built and in use." Mem. Decision by Judge Friel (Bailey) at 6; Clerk's Papers (Bailey) at 742.

18. Generally, as a last resort in deed interpretation we construe against the grantor. Apparently, this rule is premised on the custom that the grantor prepares the deed. In Harris, the Court of Appeals held that that rule of construction was not helpful because the grantee had drafted the proposed deed language in the purchase and sale agreement. Harris v. Ski Park Farms, Inc., 62 Wn. App. 371, 375, 814 P.2d 684 (1991), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).

19. Deed language omitted from the majority opinion makes it clear $5.00 or $10.00 was the total, actual consideration: "And said Grantor . . . covenant[s] and agree[s] that said grants are upon no other consideration than that named herein. . . ." Clerk's Papers (Bailey) at 532. While it is the custom today to state nominal consideration in deeds, it apparently was not the custom in the early 1900s. See also 6 A.L.R.3D 1036-39 (citing Esso Standard Oil Co. v. Texas & New Orleans Ry., 127 So. 2d 551 (La. Ct. App. 1961) (same consideration as recommended in prior condemnation proceedings, easement); Hodges v. Owings, 178 Md. 300, 13 A.2d 338 (1940) (grantor anxious to have railroad built and nominal consideration, easement); see also A.E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3D 973, 1038-39 (1966) (discussing seven cases where fair market value paid resulted in a fee, five cases where nominal consideration resulted in easements, and three cases where form of deed and four corners interpretation outweighed nominal consideration in favor of finding a fee).