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);
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).