Washington State Supreme Court
JOHN F. BROWN, JR., ET AL., Appellants,
OF WASHINGTON, Respondent.
PAUL HERMAN HARDER, ET AL., Respondents,
STATE OF WASHINGTON, Appellant.
NORMAN BAILEY, ET AL., Respondents,
OF WASHINGTON, Appellant.
[Nos. 62217-5; 61376-1; 61375-3. En Banc.]
Argued January 16, 1996. Decided October 17, 1996.
ALEXANDER and SANDERS, JJ., and DURHAM, C.J., dissent in part by
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are two versions of Brown on this website. This version is unedited. A second version has added emphasis to highlight the meaning of the words "right-of-way" in a railroad deed.
View Brown v. State of Washington (1996) with emphasis given to the meaning of the words "right-of-way" in railroad deeds.
Nature of Action: In three separate actions, landowners whose
lands adjoin strips of property over which a railroad formerly
ran, and which had been sold to the State after the railroad had
declared bankruptcy, sought reversion of title to the properties in each of three counties
based on the original deeds from private landowners and charters
issued by the federal government pursuant to an act of Congress
by which the property had been conveyed to the railroad company.
Superior Court: The Superior Court for Kittitas County, No. 88-
2-00118-1, Susan L. Hahn, J., on July 13, 1993, entered a summary
judgment dismissing the action and quieting title in the State to
the property located in Kittitas County. The Superior Court for
Adams County, No. 88-2-00137-9, Richard W. Miller, J., on
February 7, 1994, entered a summary judgment in favor of the
landowners that fee title to the property located in Adams County
reverted to them in full. The Superior Court for Whitman County,
No. 88-2-00205-1, Wallis W. Friel, J., on January 19, 1994,
entered a summary judgment in favor of the landowners that fee
title to the property located in Whitman County reverted to them
Supreme Court: Holding that the original deeds conveyed fee
simple title to the railroad; that the State acquired fee simple
title in the deeded properties; and that, insofar as the railroad
company sold the property obtained by charter from the federal
government before the railroad right of way had been abandoned,
as authorized by an act of Congress, the property obtained by
charter did not revert to the landowners; the court affirms the
judgment of the Kittitas County Superior Court and reverses the
judgments of the Adams County and Whitman County Superior Courts.
Kenneth D. Beckley, for appellants Brown, Linder, Miller,
Winegar, and George.
Keller Rohrback, by T. David Copley and John H. Bright III, for
Dan J. Cadagan III, for respondents Bailey, Belsby Ranches,
Inc., Simpson, Carlson, Cox, Ellwart, Harder, Potts, and Spencer.
JOHNSON, J. - This case involves a dispute over title to
property formerly used as a railway in Adams, Kittitas and
Whitman counties. The dispute is between abutting property owners
claiming reversionary interests and the State, which purchased
the property from the Chicago, Milwaukee, St. Paul & Pacific
Railroad Company (Milwaukee) for a rails to trail project. The
property owners claim the property reverted to them when
Milwaukee discontinued its rail service because Milwaukee held
only right of way easements in the property. The State claims fee
simple title based upon the original interest conveyed when
Milwaukee acquired the property either by deed or charter from
the federal government. We hold the original deeds conveyed fee
simple title to Milwaukee, and therefore, the State, based on the
facts the deeds are in statutory warranty form, expressly convey
fee simple title, and contain no express or clear limitation or
qualification otherwise. In addition, we hold the property
Milwaukee obtained by charter did not revert to the property
owners, based on the fact Congress authorized the sale before
abandonment pursuant to 43 U.S.C.A. § 912. We affirm the trial
court's decision in Kittitas County and reverse the trial courts'
decisions in Adams and Whitman counties.
Milwaukee acquired most of the property at issue between 1906
and 1910 for the purpose of constructing a railway across eastern
Washington, linking Tacoma and Seattle to Idaho and eventually
the Missouri River. F.H. WILSON, A BRIEF RECORD OF THE MILWAUKEE
ROAD (1935). Milwaukee acquired most of the property by 37 deeds
And the remaining parcels by charter from the federal government
under the General Railroad Right of Way Act of 1875 (the 1875
Most of the deeds at issue in this case are on
preprinted forms with blank lines containing handwritten
descriptions of the property conveyed. The following deed from
Whitman County is typical of most of the deeds at issue in this
case. The underlined portions indicate the handwritten sections
of the deed.
Milwaukee sold the property it acquired under these deeds and
charter to the State as part of reorganization proceedings
instigated under § 77 of the Bankruptcy Act, 11 U.S.C. § 1174.
Milwaukee instigated the proceedings in 1977 following three
years of losses totaling $100 million. In re Chicago, Milwaukee,
St. Paul & Pac. R.R., 611 F.2d 662, 665 (7th Cir. 1979)
(hereinafter cited as CMSP&P), aff'd, 624 F.2d 1105 (7th Cir.
KNOW ALL MEN BY THESE PRESENTS, That Geo. D. Brown and Annie
L. Brown his Wife of Spokane County, State of Washington, for
and in consideration of Ten & 00/100 Dollars, to them in hand
paid, the receipt whereof is hereby acknowledged, do __ hereby
convey and Warrant unto the CHICAGO, MILWAUKEE AND ST. PAUL
RAILWAY COMPANY OF WASHINGTON, its successors and assigns, a
strip of land, one hundred feet in width, extending over and
across from the South side to the East side of the following
described tract of land situated in the County of Whitman,
State of Washington, and described as follows, to-wit:
Southeast Quarter 1/4 Section Twenty Three (23) thence to the
North side of Section Twenty Four (24) and thence to the
Eastside of the Southwest Quarter (1/4) of the Southeast (1/4)
of Section Thirteen (13) all being in the Township Nineteen
(19) North of Range Forty (40) E. Wm. Except such land owned by
the International Land Co. . . ..
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. Also conveying the following extra widths for
excavations, embankments, depositing waste earth, and borrowing
pits, as follows: Two strip[s] of land each fifty (50) feet in
width and bordering one on either side of the strip of land
first above described and extending from station # 576 to the
Eastside of the Southwest Quarter. . . . And said Grantors, for the consideration aforesaid, for themselves and for their
heirs, assigns and legal representative, further grant __ to
said Company, its successors and assigns, the right to protect
any cuts which may be made on said land, by erecting on both
sides thereof, and within one hundred and fifty feet from said
center line, portable snow fences. . . .
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 (Bailey) at 532.
In response to the reorganization proceedings, Congress passed
the Milwaukee Railroad Restructuring Act (Restructuring Act), 45
U.S.C.A. §§ 901-922. The Restructuring Act provided short-term
funding and required continuation of service on all lines until a
reorganization plan was approved or Congress expressly permitted
abandonment. The Restructuring Act also authorized the
reorganization court to sell any of Milwaukee's rail properties
as of October 15, 1979. 45 U.S.C.A. § 903(a). By April 1980, no
reorganization plan had been put forward, and the reorganization
court authorized immediate abandonment but ordered:
the Trustee to fully pursue all possibilities for sale of
portions of these lines for continued rail operation or other
public use before he disturbs any track or facilities west of
Miles City, Montana, or takes any other step which would impede
such sales. Clerk's Papers (Bailey) at 494.
Unable to sell any portions of the lines for rail purposes, the
trustee sought permission to sell Milwaukee's property in Adams,
Kittitas and Whitman counties to the State of Washington. The
reorganization court authorized the sale in December 1981 and
shortly thereafter the trustee conveyed the property to the State
by quitclaim deed.
Following the sale, the property owners sued the State to quiet
title in the property in three separate actions.
County, the superior court granted the State's motion for summary
judgment, dismissing the action and quieting title in the State.
Conversely, in Adams and Whitman counties, the trial courts on
summary judgment found full fee title reverted to most of the
property owners when Milwaukee discontinued its rail service. As
to the charter parcels, which are located in Adams County, the
trial court stated: "I think clearly . . . what the railroad gets
on charter . . . is an easement that will revert when the line is
abandoned." Clerk's Papers (Harder) at 413. On this issue, the
trial court granted summary judgment to the property owners
because it found the property reverted to them before the sale to
The State appealed Bailey and Harder, and the property owners
appealed Brown. The appeals were consolidated and transferred
here pursuant to RAP 4.3.
Deed Parcels: Fee or Easement?
Many courts have considered whether a railroad deed conveys fee
simple title or an easement. See A.E. Korpela, Annotation, Deed
to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3D 973
(1966). The decisions are in considerable disarray and usually turn on a case-by-case examination of each deed. See ROGER A. CUNNINGHAM ET AL., THE LAW
OF PROPERTY § 8.9, at 460 (2d ed. 1993).
[1-6] In general, when construing a deed, the intent of the
parties is of paramount importance and the court's duty to
ascertain and enforce.
Swan v. O'Leary, 37 Wn.2d 533, 535,
225 P.2d 199 (1950); Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d
1308 (1981). In this case, 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
See King County v. Hanson Inv. Co., 34 Wn.2d 112,
208 P.2d 113 (1949) (words in deed must clearly indicate intent
to make estate conditional); Wright v. Olsen, 42 Wn.2d 702, 257
P.2d 782 (1953) (absent limiting language, State acquired fee
title to land acquired for highway purposes under statutory
bargain and sale deed); see also Roeder Co. v. Burlington N.,
Inc., 105 Wn.2d 567, 716 P.2d 855(1986) (deed in statutory form grants easement where additional language in the deed expressly and clearly limits or qualifies
the interest granted); Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526
(1979) (same). Here, with the exception of several deeds
discussed later in this opinion, all of the deeds are in
statutory warranty form.
In determining whether the property owners have met their
burden of showing that the original parties intended to adapt the
statutory form to grant easements instead of fees simple, we 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; and (7) whether the conveyance did or did not contain a
habendum clause, and many other considerations suggested by the
language of the particular deed. Swan, 37 Wn.2d at 535-36. In
addition to the language of the deed, we will also look at the
circumstances surrounding the deed's execution and the subsequent
conduct of the parties. Scott v. Wallitner, 49 Wn.2d 161, 162,
299 P.2d 204 (1956); see also Harris v. Ski Park Farms, Inc.,
120 Wn.2d 727, 739, 844 P.2d 1006 (1993), cert. denied, 114 S.
Ct. 697, 126 L. Ed. 2d 664 (1994).
We have given special significance to the words "right of way"
in railroad deeds. In Roeder, for example, one of the deeds
provided, in part, the grantor: "conveys and warrants unto
Bellingham and Northern Railway Company . . . for all railroad
and other right of way purposes, certain tracts and parcels of
land. . . ." Roeder,105 Wn.2d at 569. Recognizing a railroad can hold rights of way in fee simple or as easements, we held the deed granted an
easement based on the specifically declared purpose that the
grant was a right of way for railroad purposes, and there was no
persuasive evidence of intent to the contrary.
105 Wn.2d at 574. We reached the same result in Morsbach v.
Thurston County, 152 Wash. 562, 564, 278 P. 686 (1929) (deed
granted "the right-of-way for the construction of said company's
railroad in and over . . ."); Swan, 37 Wn.2d at 534 (granted
property "for the purpose of a Railroad right-of-way . . .");
Veach, 92 Wn.2d at 572 (granted "[a] right-of-way one hundred
feet wide . . ."). See also Reichenbach v. Washington Short Line
Ry. Co., 10 Wash. 357, 358, 38 P. 1126 (1894) ("so long as the
same shall be used for the operation of a railroad" construed as
granting easement); Pacific Iron Works v. Bryant Lumber & Shingle
Mill Co., 60 Wash. 502, 505, 111 P. 578 (1910) (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" grants easement not
determinable fee); King County v. Squire Inv. Co.,
59 Wn. App. 888, 890, 801 P.2d 1022 (1990) ("grant and convey
. . . a right-of-way. . . . To Have and to Hold . . . so long as
said land is used as a right-of-way . . ." grants easement),
review denied, 116 Wn.2d 1021 (1991).
These cases are consistent with the majority of cases that hold
the use of the term "right of way" as a limitation or to specify
the purpose of the grant generally creates only an easement. See
Harris, 120 Wn.2d at 738; Machado v. Southern Pac. Transp. Co.,
233 Cal. App. 3d 347, 284 Cal. Rptr. 560 (1991). Conversely,
where there is no language in the deed relating to the purpose of
the grant or limiting the estate conveyed, and it conveys a definite
strip of land, the deed will be construed to convey fee simple
title. Swan, 37 Wn.2d at 536; 65 Am. Jur. 2d Railroads § 76
(1972); see, e.g., Urbaitis v. Commonwealth Edison, 143 Ill. 2d
458, 575 N.E.2d 548, 552 (1991).
There is no question Milwaukee acquired the property for
railroad purposes under these deeds. Identifying the purpose of
the conveyance, however, does not resolve the issue at hand
because a railroad can own rights of way in fee simple or as
easements. Roeder, 105 Wn.2d at 571; Harris
120 Wn.2d at 738. Rather than identifying the purpose of the
conveyances, we must conduct a deed-by-deed analysis to ascertain
whether the parties clearly and expressly limited or qualified
the interest granted, considering the express language, the form
of the instrument, and the surrounding circumstances.
Most of the deeds expressly convey fee simple title to a
definite strip of land. The property owners acknowledge the deeds
expressly convey fee simple title but argue the eminent domain
language in the same sentence limits the conveyance.
argument rests on the assumption railroads could acquire
easements only by eminent domain at the time the deeds were
issued. At the time of the conveyances, Washington statutes
authorized railroads to appropriate "legal title" to land or any
interest necessary for operation of the railway. REM. & BAL. CODE
§§ 927, 8740 (1909). In Neitzel v. Spokane Int'l Ry.,
65 Wash. 100, 117 P. 864 (1911), this court construed these
statutes as authorizing a railroad to acquire only an
The problem with the property owners' argument is
Neitzel was decided after all but one of the conveyances at issue in this
case. At that time, the nature of the interest acquired by a
railroad under the condemnation statutes was not entirely clear,
given this court had held fee simple title could be acquired by
cities and other entities under similarly worded condemnation
statutes. See, e.g., Seattle Land & Improvement Co. v. City of
Seattle, 37 Wash. 274, 79 P. 780 (1905) (City acquired fee simple
interest by condemnation). Under these circumstances, what
meaning the original parties to the deeds attributed the eminent
domain language is not apparent. We do not, however, view the
eminent domain language as a limitation because the word
"together" implies a grant of additional rights, not a limitation
on the interest conveyed.
In addition to the eminent domain language, the property owners
argue references to "rights of way" in about half of the deeds
indicate the grant of an easement. The words "right of way" 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. Morsbach,
152 Wash. at 568; Harris,
120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of
way" was used in the granting or habendum clauses to qualify or
limit the interest granted, "right of way" in the deeds at issue
here appears in either the legal description of the property
conveyed or in the portion of the deeds describing Milwaukee's
obligations with respect to the property. The Eidal deed, for
Said Railway Company . . . will permit a telephone wire and an
electric light wire to cross its said right-of-way. . . .
Before grading is begun Right of way fences shall be built.
. . . Said Railway Company is to furnish such facilities for
conducting water for irrigation and other purposes under its
track and across its Right-of-Way as are reasonable and
practicable. . . .
Clerk's Papers (Brown) at 27. Used in this manner, "right of way"
merely describes a strip of land acquired for rail lines; it does
not qualify or limit the interest expressly conveyed in the
granting and habendum clauses. To point out that the Eidal deed
and others describe the property as right of way simply begs the
question of what interest Milwaukee acquired, because a railroad
can own rights of way in fee simple if that is what the deed
The property owners also argue the "over and across" language
found in the description portion of most of the deeds indicates a
grant of something less than fee simple title. While the "over
and across" language may be consistent with the grant of an
easement, it is equally possible the parties used "over and
across" simply to locate the right of way. See, e.g., Machado,
233 Cal. App. 3d at 360; Sowers v. Illinois Cent. Gulf R.R., 152
Ill. App. 3d 163, 503 N.E.2d 1082, 1087 (1987).
The amount of consideration does not indicate that the grantors
intended only easements. Most of the deeds recite consideration
of $10. The amount of consideration may be a factor to consider,
Swan, 37 Wn.2d at 535, but whether the consideration actually
paid in these cases represented the value of an easement or fee
simple cannot be ascertained from the record.
Finally, the property owners rely heavily on the context in which the deeds were negotiated, speculating the grantors had
little choice but to convey their property by deed given the
threat of condemnation. In no way, however, did they intend to
grant more than Milwaukee could have acquired through eminent
domain, which the property owners claim was an easement, again
citing Neitzel. Assuming railroads could acquire easements only
through eminent domain at this time, the property owners'
interpretation may be reasonable. But equally persuasive is the
State's view that the grantors welcomed the Milwaukee and sold
their property absent the threat of condemnation. See Ira A.
Nadeau, Railroad Situation in Washington, WASH. MAG., Apr. 1906,
at 2 ("The coming of the railroads made the settlement of the
greater portion of our state possible"); State Roads Comm'n v.
Johnson, 222 Md. 493, 161 A.2d 444, 446 (1960) ("It is an
historical fact that the construction of the pioneer B. & O.
railroad was a highly favored enterprise . . ."). In any event,
we are reluctant to accord the context in which the deeds were
negotiated much weight, given the uncertainty as to what a
railroad could acquire by eminent domain before Neitzel, and the
failure of either party to develop the record on this point.
Weighing the factors outlined in Swan, we conclude construing
the deeds to convey fees simple more accurately reflects the
intent of the parties, given the form of the deeds and the fact
they convey "fee simple title" to definite strips of land given
without any limitation or qualification. While the manifest
purpose of the deeds is to convey land for railroad lines,
railroads have never been prohibited from holding rights of way
in fee simple. Morsbach, 152 Wash. at 575. In the absence of
language in the deeds expressly and clearly limiting the estate
conveyed, the deeds fall squarely within the rule that where
there is no language in a deed relating to the purpose of the
grant or limiting the estate conveyed, and it conveys a definite
strip of land, it will be construed to convey fee simple title.
See Swan, 37 Wn.2d at 536.
We previously noted that most of the deeds are identical to the Whitman County deed set forth earlier in this opinion
except as to the handwritten legal descriptions. There are,
however, several deeds that differ from the Whitman County deed.
We hold these deeds convey fee simple title because, unlike Swan,
Veach, and Roeder, they convey definite strips of land without
any limitation or qualification.
Specifically, several of the deeds are in the form of
indentures. Because they convey definite strips of land and
nowhere specify that the purpose of the conveyance is for a right
of way, we hold they conveyed fee simple title to Milwaukee.
The Simpson deed is captioned "Right of Way Deed." The deed is
in statutory form and coveys a definite strip of land, but does
not expressly convey fee title. Because the purpose of the
conveyance is not limited, we hold the deed conveyed fee simple
title regardless of the caption.
The Baker Loan & Investment Company deed does not expressly
convey fee simple title but is in statutory form. Because the
conveyance is not limited, and the consideration is substantial
($1,310), we hold the deed conveys fee simple title.
 The Northern Pacific Railway Company deed is a bargain and
sale deed. A bargain and sale deed is a statutory deed that is
deemed to convey fee simple title. REM. & BALL. CODE § 8748
(1909). The McCall deed, captioned "Quit Claim Deed," is part of
this conveyance. It is substantially similar to the Kittitas
County deeds. Both deeds convey fee simple title.
The Milwaukee Land Company deed is captioned "Warranty Deed"
and is in the form of a bargain and sale deed. Because there is
no limiting language, we construe the deed as conveying fee
Next we consider the property owners' claim that the property Milwaukee acquired by charter under the 1875 Act
reverted to them under 43 U.S.C.A. § 912.
Under the 1875 Act, railroads acquired less than fee simple
estates, leaving the federal government with a reversionary
interest. In the 1920's, Congress partially divested the federal
government of its reversionary interest by granting the
reversionary interest to the owner of the legal subdivision
previously traversed by the right of way. 43 U.S.C.A. § 912;
Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028,
1031 (10th Cir. 1994); see also City of Buckley v. Burlington N.
R.R. Corp., 106 Wn.2d 581, 723 P.2d 434 (1986). In this case, the
property owners claim the reversionary interest as owners of the
legal subdivision previously traversed by the railroad.
 Whether the reversionary interest vests in the adjoining
landowner is governed by 43 U.S.C.A. § 912. State v. Oregon Short
Line R.R. Co., 617 F. Supp. 207 (D. Idaho 1985). Section 912
provides in pertinent part:
Whenever public lands of the United States have been or may be
granted to any railroad company for use as a right of way for
its railroad . . . and use and occupancy of said lands for such
purposes has ceased or shall hereafter cease . . . by
abandonment by said railroad company declared or decreed by a
court of competent jurisdiction or by Act of Congress, then and
thereupon all right, title, interest, and estate of the United
States in said lands shall, except such part thereof as may be
embraced in a public highway legally established within one
year after the date of said decree or forfeiture or abandonment
be transferred to and vested in any person, firm, or
corporation, assigns, or successors in title and interest to
whom or to which title of the United States may have been or
may be granted, conveying or purporting to convey the whole of
the legal subdivision or subdivisions traversed or occupied by
such railroad . . . except lands within a municipality the
title to which, upon forfeiture or abandonment . . . shall vest
in such municipality. . . . Provided, That this section shall
not affect conveyances made by any railroad company of portions of its right of way if such conveyance be
among those which . . . may . . . before such forfeiture or
abandonment be validated and confirmed by any Act of Congress;
. . ..
43 U.S.C.A. § 912 (emphasis added).
The State argues this case hinges on the application of the
proviso; if the trustee's sale of the charter parcels to the
State pursuant to the Restructuring Act constituted a conveyance
"validated and confirmed by any Act of Congress," then the State
has superior title. The property owners argue the proviso is
irrelevant because the sale took place after the reorganization
court authorized immediate abandonment on April 2, 1980. We hold
the reversionary interest never vested in the adjoining property
owners in this case because Congress had expressly authorized
Milwaukee to sell the rights of way for nonrailroad purpose, and
moreover, a court of competent jurisdiction had never declared
abandonment as required by this statute.
The Restructuring Act delegated congressional power to the
reorganization court to approve "agreements to sell, to another
rail carrier or any other person, all or any portion of its rail
properties used in railroad operations as of October 15, 1979."
45 U.S.C.A. § 903; see also In re Chicago, Milwaukee, St. Paul &
Pac. R.R., 701 F.2d 604 (7th Cir.) (Restructuring Act transferred
authority over sales of Milwaukee's lines from the Interstate
Commerce Commission to the reorganization court), cert.
dismissed, 463 U.S. 1233 (1983). Because Congress validated and
confirmed the sale of property, the parties agree that the only
issue related to § 912 is whether abandonment occurred after
Milwaukee sold the property to the State.
In order for reversionary rights to vest under 43 U.S.C.A.
§ 912, the railroad must (1) cease "use and occupancy" of the
rights of way, and (2) abandonment must be "declared or decreed"
by a court of competent jurisdiction or a congressional act.
Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1337 (9th
Cir.) (citing Oregon Short Line, 617 F. Supp. at 216, 218), cert. denied, 498 U.S. 967
(1990); Barney v. Burlington N. R.R., Inc., 490 N.W.2d 726, 731
(S.D. 1992), cert. denied, 507 U.S. 914 (1993).
The Restructuring Act authorized the reorganization court to
"authorize" abandonment of Milwaukee's lines as of April 1, 1980.
45 U.S.C.A. §§ 904, 915(a). On April 2, the reorganization court
found "[t]he best interests of the estate require immediate
authorization of this abandonment. . . ." Clerk's Papers (Bailey)
at 492. But, it directed the trustee "to fully pursue all
possibilities for sale of portions of these lines for continued
rail operation or other public use before he disturbs any tracks
or facilities west of Miles City, Montana. . . ." Clerk's Papers
(Bailey) at 494. In its application to sell the property at issue
to the State, the trustee stated:
The property to be sold is a portion of the property authorized
for abandonment in the Lines West abandonment proceeding
covered by Order Nos. 307 and 307-A in April of 1980. Salvage
contracts have already been let for the removal of the
trackage, which remains in place only in two segments
aggregating about 95 miles in length. The Trustee will reserve
the right to enter upon the property for the purpose of
removing the track materials until December 1, 1982, which is
the deadline under the salvage contracts for removal of the
Clerk's Papers (Bailey) at 499.
 By the time of the sale, then, "use and occupancy" of the
rights of way had apparently ceased, and the reorganization court
had authorized abandonment conditioned on the trustee making
every effort to sell the property to another rail carrier or for
public use. However, authorizing conditional abandonment and
declaring a railway abandoned are two separate acts. Here, no
court of competent jurisdiction has declared or decreed the
railways abandoned even though abandonment has been authorized.
See Vieux, 906 F.2d at 1337. As a result, the proviso applies.
Moreover, "easements" on public lands are granted by Congress and
subject to the intentions and specifications of Congress rather than common law. Oregon Short Line, 617 F. Supp. at 212; Barney, 490 N.W.2d at 730. Because
Congress authorized the sale of Milwaukee's rights of way for
nonrailroad uses under 43 U.S.C.A. § 912, we hold Congress
intended the reversionary interest to vest in the purchaser of
the right of way rather than the owner of the abutting property.
In these consolidated cases, the deeds conveyed land rather
than use of a right of passage over land. Thus, we hold Milwaukee
acquired fees simple in the deed parcels which the State acquired
by purchase. Because abandonment has not been declared by a court
of competent jurisdiction or a congressional act, no reversionary
interests in the charter parcels vested. We affirm the trial
court's order granting summary judgment in Kittitas County and
reverse the trial courts in Adams and Whitman counties and remand
with directions to grant summary judgment to the State.
DOLLIVER, SMITH, GUY, MADSEN, and TALMADGE, JJ., concur.
Reconsideration denied November 20, 1996.
SANDERS, J. (dissenting in part, concurring in part) –
court is to adhere to its time-honored and unquestioned rule that
"the intention of the parties to the conveyances is of paramount
importance and must ultimately prevail in a given case," Harris
v. Ski Park Farms, Inc., 120 Wn.2d 727, 738, 844 P.2d 1006 (1993)
(citing Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950)),
cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664
(1994), we must yield to the necessary legal conclusion that the
parties to these transactions intended to convey that which was
necessary to permit the construction and operation of a
railroad - an easement. Accordingly, I would affirm the judgment
of the learned trial courts in Adams and Whitman
counties, reverse the Kittitas County summary
judgment, and dissent from the unprecedented majority opinion of
this court (except as to the charter parcels).
We are presented with a mixed question of fact and law. The
intent of the parties is the factual part of the question.
Harris, 120 Wn.2d at 738 (citing Veach v. Culp,
92 Wn.2d 570, 573, 599 P.2d 526 (1979)); Roeder Co. v. Burlington
N., Inc., 105 Wn.2d 567, 572, 716 P.2d 855 (1986). The search for
intent is illuminated by three factors: (1) deed language,
(2) circumstances surrounding the execution of the deed, and
(3) the subsequent conduct of the parties. Scott v. Wallitner,
49 Wn.2d 161, 162, 299 P.2d 204 (1956). The consequence of this
intent is the legal question.
The factual question is: Was it the intention of the parties to
convey a right to use the land for the purpose of operating a
railroad, or was it, on the other hand, their intent to convey an
absolute fee title. Scott, 49 Wn.2d at 162 (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)). Curiously, the majority aptly and accurately
discerns the fundamental intent of these parties: "There is no
question Milwaukee acquired the property for railroad purposes
under these deeds," Majority op. at 440, and "the manifest
purpose of the deeds is to convey land for railroad lines.
. . .," Majority op. at 443. Ultimately this fact should resolve
the case because if it was the intent of the parties to convey
what was necessary for a railroad line, all that was needed was
an easement. But by its holding the majority benefits the
railroad more than its intended gain and takes from the landowner
more than his intended conveyance. This does not fulfill the
intention of the parties; it defeats it.
The majority mistakenly switches to the wrong track because these deeds are generally statutory in form. It opines: "[W]here 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." Majority
op. at 437. It sees support for this alleged rule in King County
v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949); Wright v.
Olsen, 42 Wn.2d 702, 257 P.2d 782 (1953); Roeder Co. v.
Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855 (1986); and
Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526 (1979) and purports to
briefly summarize the holding in each of these cases after their
citation. I do not agree with their characterization of these
cases, and I strongly disagree that precedent holds the
utilization of a statutory warranty deed format, in a railroad
deed situation, raises some sort of a presumption that a fee
title has been conveyed. As a matter of fact, a long, narrow,
definite strip of land more likely represents an easement than a
fee, see, e.g., Hanson, 34 Wn.2d at 123-25; Morsbach,
152 Wash. at 573-74 (citing Killgore v. Cabell County Court, 80
W. Va. 283, 92 S.E. 562 (1917)), as easements for railroad rights
of way are almost always "strips of land" whereas fee parcels are
usually more regularly shaped and large enough to suit a
Neither Hanson nor Wright involved a conveyance to a railroad
company. In Hanson the court held the deed granting land for a
public park to be ambiguous, but the plat filed by the landowner
clearly indicated his intent that the tract be dedicated to the
county for a public park because it involved a triangular tract
(not just a strip of land suitable for a highway easement).
Hanson, 34 Wn.2d at 125-26. In Wright the court found the state
acquired the fee in land by a deed "in plain and unambiguous
terms" and that the statutes provide that the state cannot be
divested of title by abandonment. Wright, 42 Wn.2d at 703- 04
(citing Rem. Rev. Stat. §§ 6829-1, -2 (1926); RCW 47.12.060, .070
(1945)). This is nearly the opposite rule from that posited by the majority: it is an easement unless clearly it is not. See also Roeder, 105 Wn.2d at 572.
Railroad deeds are unique in that they are an exception to the
general rule that a deed in statutory warranty or quitclaim form
passes full fee title. On many prior occasions this court has
held that a railroad deed in the form of a statutory warranty
deed passes only an easement, and nothing more. Morsbach,
152 Wash. at 565-69; Roeder, 105 Wn.2d at 572 (citing Veach,
92 Wn.2d at 574).
Where the deed language sends mixed signals, we follow
the easement track, not the fee. 17 WILLIAM B. STOEBUCK,
WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 7.9, at 464
(1995) ("[T]he Washington decisions involving disputed language
seem to favor the granting of an easement, though they do not say
so in so many words."); King County v. Squire Inv. Co.,
59 Wn. App. 888, 893, 801 P.2d 1022 (1990) ("Previous Washington
cases show a strong tendency to construe such rights of way as
easements."), review denied, 116 Wn.2d 1021, 811 P.2d 219 (1991);
cf. Swan, 37 Wn.2d at 536 (where the deed is a mixture of two
ideas the easement conclusion follows). The black letter rule in
this jurisdiction states:
[I]t is elementary that, in cases where the granting clause of
a deed declares the purpose of a grant to be a right of way for
a railroad, the deed passes an easement only, not a fee, though
it be in the usual form of a full warranty deed. 1 Thompson on
Real Property, § 421.
Morsbach v. Thurston County, 152 Wash. 562, 565, 278 P. 686
(1929) (emphasis added). The search for intent ends when the
purpose is found. This rule is firmly established and has been
consistently followed from Morsbach in 1929 to Harris in 1993.
About this there can be no doubt. See Harris, 120 Wn.2d at 727,
738. Likewise it is also the rule followed in many other
jurisdictions. See A.E. Korpela, Annotation, Deed to Railroad
Company as Conveying Fee or Easement, 6 A.L.R.3D 973, 984-90
The majority in essence defeats the common sense of this rule of intent by holding an easement is not created unless
the magic words "right of way" are contained in the "granting
clause." See Sherman v. Petroleum Exploration, 132 A.L.R. 137
(1941); A. E. Korpela, Annotation, Deed to Railroad Company as
Conveying Fee or Easement, 6 A.L.R.3d 962-1039 (1966). However,
Morsbach does not narrowly define "granting clause" nor does it
require the right of way purpose be expressed in any particular
words. The deeds in this case each have multiple granting clauses
as each clause further describes the actual scope of the grant,
not just the first clause. The last clause, which mentions fee
simple title together with that which might be acquired through
eminent domain, is also a granting clause. Morsbach,
152 Wash. at 566 (granting clause includes description of
property conveyed). Motive, purpose, and intent are not
necessarily the same; however, normally they are consistent and
closely related. Where the purpose is right of way, the inference
follows that it was the intent of the parties to grant what is
necessary to accomplish that purpose. Here, an easement.
In Morsbach this court rejected a similar argument made by the
county that the granting clause of the deed did not include the
words "right of way . . . for the construction of . . . [a]
railroad. . . ." The court held: "But the appellant delimits the
supposed granting clause too much. The granting clause must also
include the property conveyed, so that it may be identified." Id.
The majority ignores the ultimate reason for this inquiry (was
it the intention of the parties to convey a right to use the land
for the purpose of operating a railroad, or was it, on the other
hand, their intent to convey an absolute fee title)
ignoring the established rule of construction in such cases that
the intention of the parties, insofar as the same can be
determined from the face of the deed, must be gleaned from the entire instrument,
not a particular word or phrase placed here or there, or the absence thereof. As we said in Roeder, "The particular purpose for which
the land was being conveyed was thus emphasized throughout the
deed." Roeder, 105 Wn.2d at 573.
The majority continues down the wrong track by giving "special
significance to the words 'right of way' in railroad deeds,"
Majority op. at 438, finding the absence of these precise words
in these deeds overpowering in significance. However significant
to the majority, no reason is advanced why its absence should
have been significant to the parties to the original deeds. But
it is the intent of the parties which should control. There are
different ways to express the same intent.
Morsbach relies heavily upon THOMPSON ON REAL PROPERTY for the
basic rule in such situations, as here, where the railroad is
afforded a private right of eminent domain to aid its right of
A grant of a right of way to a railroad company is the grant of
an easement merely, and the fee remains in the grantor. . . .
It is held that a deed conveying land to a railroad for a right
of way gives the railroad no more rights than it would
have acquired by condemnation. . . . 1 Thompson on Real
Property, § 420.
Morsbach, 152 Wash. at 574.
While the deed in Morsbach contained the words "right of way,"
and those specific words do not appear in the deeds considered in
this case, there is no doubt that the purpose of the conveyance
was for operation of a railroad only, and all Washington
construing deeds to railroad companies executed in the early 1900s have found easements, regardless of form.
Unless we are to disregard Judge Learned Hand's admonition that
we should not "make a fortress out of the dictionary,"
suggest we fulfill the intention of the parties to these early
nineteenth century deeds, not fault farmers for not rewriting the
preprinted deeds drafted by the railroad as we think Philadelphia
The majority cites "Annotation, Deed to Railroad Company as
Conveying Fee or Easement, 6 A.L.R.3D 973 (1966)," Majority op.
at 436, but does not discuss the principal case in the
annotation, Harvest Queen Mill & Elevator Co. v. Sanders, 189
Kan. 536, 370 P.2d 419, 6 A.L.R.3d 962 (1962). That case is
especially significant because it follows a long line of
consistent cases back to Abercrombie v. Simmons, 71 Kan. 538, 81
P. 208 (1905) as did the leading Washington case, Morsbach.
Abercrombie is the mother of all railroad cases in both
jurisdictions. Sanders faithfully follows Abercrombie and
summarizes the general rule that railroad rights of way are
easements, unless the deed clearly, unambiguously, and absolutely
The deed in Sanders was very similar in form to the deeds here.
The words "right of way" did not appear anywhere. The reference
to the purpose of the grant, construction, and operation of a
railroad does not appear in the grant of the land itself, but only after the word "together" in the section authorizing the railroad to encroach on
other land owned by the grantor. This is analogous to the deeds
in our present case which grant "'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.'" Majority op. at 435 (quoting Clerk's Papers
(Bailey) at 532).
Rejecting basically the same arguments which the majority
accepts here, the Kansas Supreme Court repaired to the
fundamental guiding principle and its reason.
We have held that when land is devoted to railroad purposes it
is immaterial whether the railway company acquired it by virtue
of an easement, by condemnation, right-of-way deed, or other
conveyance. If or when it ceases to be used for railway
purposes, the land concerned returns to its prior status as an
integral part of the freehold to which it belonged prior to its
subjection to use for railway purposes. This court has
uniformly held that railroads do not own fee titles to narrow
strips [of land] taken as right-of-way, regardless of whether
they are taken by condemnation or right-of-way deed. The rule
is in conformity with this state's long-standing public policy
and gives full effect to the intent of the parties who execute
right-of-way deeds rather than going through lengthy and
expensive condemnation proceedings. [Citing Abercrombie v.
Simmons, 71 Kan. 538, 81 P. 208 (1905), other citations
Sanders, 189 Kan. at 541-42, 370 P.2d at 423 (emphasis added).
To summarize, the intent of the parties is controlling as to
whether the parties intended to grant a railroad right of way or
transfer a fee title. The evidence of that intent is derived from
(1) deed language taken as a whole, (2) circumstances surrounding
the execution of the deed, and (3) the subsequent conduct of the
parties. While the majority concedes, as it must, the purpose of
this conveyance was to convey a railroad right of way based upon
these enumerated factors, the majority derails when it claims identifying the purpose of the conveyance does not resolve the issue:
There is no question Milwaukee acquired the property for
railroad purposes under these deeds. Identifying the purpose of
the conveyance, however, does not resolve the issue at hand
because the railroad can own rights of way in fee simple or as
easements. Roeder, 105 Wn.2d at 571; Harris, 120 Wn.2d at 738.
Majority op. at 440. While Roeder and Harris do indeed stand for
the proposition that a railroad can own rights of way in fee
simple or as easements (as do Abercrombie and Sanders), neither
case supports the purported proposition that "[i]dentifying the
purpose of the conveyance, however, does not resolve the issue.
. . ." Majority op. at 440 (emphasis added). Of course it does.
Morsbach clearly holds a deed to a railroad should be "construed
as a whole and in the light of the purpose for which it was made.
. . ." Morsbach, 152 Wash. at 567. If there were nothing in the
deed to suggest that the grant of this strip of land was for the
purpose of constructing a functioning railroad, then the majority
might have an argument. However, where it follows from language
in the deed and/or extrinsic circumstances that the conveyance
was for right of way purposes, the conveyance is construed as an
easement because only an easement is necessary to fulfill that
purpose. Were it the intent of the parties to grant a fee, the
deed would have simply done so without reference to a railroad
use, or eminent domain.
Is not that the "intent" we seek to determine? If the majority
is not looking for the intended purpose of the conveyance, what
is it looking for? I'm sure farmer Brown wouldn't understand the
majority's logic on this point.
As the majority itself admits, the evidence of intent to
transfer the appropriate property interest for the purpose of a
railroad right of way is quite overwhelming whether that purpose
(or intent) be discerned from the deed language, the
circumstances surrounding the execution of the deed, or the
subsequent conduct of the parties.
Most of these deeds are on preprinted forms drafted by the
railroad. The railroad was a sophisticated, well financed, and
organized party, undoubtedly represented by counsel. Landowners
stood at a disadvantage to railroads in the early 1900s. It
approached the landowners to purchase their land after it had
already laid out or even built its rail line over the land.
See A.E. Korpela, Annotation, Deed to Railroad Company as
Conveying Fee or Easement, 6 A.L.R.3D 973, 1034-38 (1966) (citing
Gates v. Missouri, K. & T. Ry., 13 F. Supp. 466 (Okla. 1934)
(deed in lieu of condemnation conveys a fee); Highland Realty Co.
v. City of San Rafael, 46 Cal. 2d 669, 298 P.2d 15 (1956) (where
railway built before the conveyance in lieu of condemnation
proceeding, it is an easement)). The railroad and the landowners
knew that the railroad possessed the power of eminent domain and
would end up in possession of the right of way, if it were not
already. These were not arm's-length transactions between parties
of equal bargaining power. For these reasons, the deeds, at least
the preprinted portions of them, must be construed against the
railroad. "[C]ontract language . . . is construed most strongly
against the party who drafted it, or whose attorney prepared it."
Guy Stickney, Inc. v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7
(1966) (citations omitted). "[A] deed reference to a 'right of
way' for road or railway purposes is usually construed as
conveying only an easement, since most rights of way are indeed
easements." ROGER A. CUNNINGHAM, ET AL., THE LAW OF PROPERTY
§ 11.1, at 718 (1984). "[T]he wise drafter [here, the railroad]
will make clear what sort of interest is intended." Id. At 718.
Construing these deeds against the drafter buttresses the easement conclusion.
The deeds taken together also evidence multiple acquisitions of
interests in contiguous parcels, suggesting a railroad use
consistent with an easement, but inconsistent with a fee title
normally associated with larger parcels for forest land,
orchards, or hotels. Compare Swan, 37 Wn.2d at 536 (adjacent
right of way indicative of extension). The actual
is nominal, e.g., $10.00. This is more
consistent with the lesser estate of an easement than the greater
fee estate. Of course the grantee of the deed is a railroad
company, and, for the most part, railroad companies operate
railroads. The property itself is "'a strip of land, one hundred
feet in width. . . . '" Majority op. at 434 (quoting Clerk's
Papers (Bailey) at 532). This is consistent with a railroad use
and inconsistent with other uses. Compare King County v. Hanson
Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949) (where a fee title
was found in part because it was a large triangular-shaped parcel
of property, not a narrow strip of land). See Majority op. at
437. The deeds generally reference "over and across." This
language is certainly indicative of a railroad right of way and inconsistent with an absolute fee which would convey, for example, the mineral rights as well, which are not "over," but "under."
Were this not enough, the deeds actually define the land grant
in terms of "'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). Railway means railway, not trail. The
deeds mention "'extra widths for excavations, embankments,
depositing waste earth, and borrowing pits . . ., the right to
protect cuts which may be made on the land . . ., [and] the right
to erect and maintain portable snow fences. . . . ,'" etc., all
of which unmistakably indicate a railroad use. Id.
To view this from another perspective, is it reasonable to
believe these parties intended any use but a railroad given the
language of the deed?
Finally the deeds also grant "'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.'" Id. Although this reference to a fee title could be
consistent with a determinable fee (which terminates upon
railroad abandonment and yields the same result as an easement
upon abandonment), see Morsbach, 152 Wash. at 568, the great
weight of authority does not make the reference to the fee title
dispositive in any event. See King County v. Squire Inv. Co.,
59 Wn. App. 888, 892-94, 801 P.2d 1022 (1990), review denied,
116 Wn.2d 1021, 811 P.2d 219 (1991).
However, the reference to eminent domain is a very important
indication of right of way intent.
First, there would be no reason for the reference, and these
words would be mere surplusage, if it were the intent of these
parties to simply grant the railroad an absolute fee title. There
is nothing which could be added to an absolute fee estate by
eminent domain beyond that which is not already there.
Second, the reference to eminent domain infers this deed was given in lieu of that which could be acquired through eminent domain, i.e., only an easement. The fact that the railroad laid out or even built the railway over and across the
land before acquiring title shows that they intended to take by
eminent domain or the threat thereof. This conclusion is not
changed by the fact that Neitzel v. Spokane Int'l Ry.,
65 Wash. 100, 117 P. 864 (1911) was decided shortly after these
deeds were executed and appears to be the first definitive
holding from the Washington State Supreme Court to that effect.
Neitzel did not purport to announce a new principle of law but to
recognize an existing one. Washington Constitution article I,
section 16 (amend. IX), from the date of its adoption in 1889, as
well as the uniform law in virtually every other state
jurisdiction, all predating these deeds, held railroads might
acquire easements only by eminent domain. Nietzel,
65 Wash. at 110-11.
There is a reason railroads may acquire only an easement, not a
fee title, by eminent domain. The reason is that an easement (or
determinable fee) is all that is necessary for the railroad to
accomplish its public purpose. The seizure of more than that
which is necessary to accomplish a public purpose is prohibited
by the Washington declaration of rights, CONST. art. I, § 16. The
railway could have obtained a right of way easement for railroad
purposes through exercise of its eminent domain power but it
could not have obtained a fee. (Nor could it have obtained any
interest in land for use as a recreational trail through eminent
domain.) Once again, this express reference to eminent domain is
indicative of an intent to grant a railroad right of way by
easement rather than an absolute fee. Additionally, it is also an
extrinsic circumstance even absent the express deed reference.
Aside from the actual language of the deed, other factors seem
almost self-evident in their implication of railroad right of way
intent. The "circumstances surrounding the execution of the deed"
include buying up many similar parcels of land for a railroad
right of way on pre-printed railroad deed forms, often using the same Seattle notary who apparently traveled to the landowners with the railroad
agent. Clerk's Papers (Bailey) at 742. Of course the subsequent
conduct of the parties is precisely what one would expect from a
right of way intention: construction and use of a railroad line.
The majority claims property owners were more interested in the
benefits of rail service than obtaining fair value for their
property. I doubt that, since one probably enjoys railroads more
if they go across someone else's land. However even if the
majority's point was well taken, property owners have now been
deprived of the benefit of rail service by the railroad's
abandonment of the line. In the State's hands all these property
owners have left to look forward to are interlopers building
campfires and leaving behind their trash, easy access to
trespassers, and loss of personal privacy - not benefits from
rail service. If these deeds granted a fee, the motive, purpose,
and intent for granting that fee vanished when the tracks were
torn up. But if an easement was granted the property reverts upon
abandonment to the landowner and there is no problem. If so,
farmer Brown was not so dumb after all.
Would farmer Brown have sold his property to this railroad in
fee simple absolute for $10.00 if (1) the property were to be
used for a public trail, not rail, and (2) the railroad would not
have been able to forcibly acquire the property by eminent domain
absent farmer Brown's consent?
I do not here dwell on the specifics of the other deeds and
transactions, finding my divergence from the majority miles up
the track from these specifics. Suffice it to say that
appropriately defined principles will yield the same result in
I do, however, concur in the result that fee simple absolute
title to the so-called "charter parcels," the former railroad
rights of way, is vested in the State of Washington, but write
separately to briefly state the essence of the holding.
Unlike the other "deed parcels" at issue in this case, these
narrow strips of land underlying the former railroad rights of
way were never a part of the adjoining property owners'
(abutters') chain of title. Their only claim to the land is under
a statute, 43 U.S.C.A. § 912, passed by Congress, which in effect
made a conditional promise of a future gift to abutters. That
condition, a declaration of abandonment of the railroad right of
way by Congress or a court, never occurred. Abandonment in fact
(non-use) and a declaration of abandonment are two very different
legal statues. In the Milwaukee Railroad Restructuring Act, 45
U.S.C.A. §§ 901-922, Congress prevented the condition from ever
occurring by authorizing a sale prior to any declaration of
abandonment. Alternatively, this act could be viewed as a partial
repeal of 43 U.S.C.A. § 912, which authorized the gift, at least
with respect to these particular rights of way. Either way,
abutters acquired no vested rights in the land and no title to
the charter parcels. What Congress promised to give abutters with
one hand, it took away with the other. Congressional
improvidence, if any, is beyond the power of this court to
remedy. But fulfillment of private intent is our charge.
ALEXANDER, J. (concurring in part, dissenting in part) –
concur with the decision of the majority that all of the deeds
before us purporting to convey fee simple title do exactly that.
I also agree with its determination that other deeds which do not
contain language indicating a conveyance of fee simple, but which
purport to convey specific tracts of land without restriction on
the use of the conveyed land, also convey fee simple title. I
disagree with the majority only with respect to its determination
of the effect of one deed, that from George Simpson to the
Milwaukee Railroad, dated May 4, 1907. In my judgment, that deed
conveyed only an easement. I, therefore, dissent in part.
Most of the deeds, as the majority notes, expressly convey fee
simple title with no limitation on the use of the land. I readily agree with the majority that those deeds convey
fee simple title. The majority also correctly observes that
"where there is no language in the deed relating to the purpose
of the grant or limiting the estate conveyed, and it conveys a
definite strip of land, the deed will be construed to convey fee
simple title." Majority op. at 439-40. Finally, it correctly
recognizes that where a deed indicates that the grantor intends
to convey to the grantee "a right of way for railroad purposes,"
an easement is created even if the deed is in the form that
usually conveys fee title. Majority op. at 439; Swan v. O'Leary,
37 Wn.2d 533, 537, 225 P.2d 199 (1950).
Applying the aforementioned principles, it is apparent that the
deed from Simpson to the Milwaukee Railroad, unlike the other
deeds at issue in the case, does not convey a fee simple estate.
Rather, it conveys an easement. I reach that conclusion for
several reasons. First, the deed does not expressly indicate that
fee simple title is being conveyed. Second, it is captioned a
"Right of Way Deed," and it purports only to convey a strip of
land "over and across" a much larger tract of land. Clerk's
Papers at 561. Significantly, the deed contains language, not
present in the other deeds before us, that the grantor, Simpson,
released all damage claims "occasioned by the location,
construction, maintenance and operation of a Railway over and
upon the premises hereby conveyed." Clerk's Papers at 561. This
language lends support to the argument that Simpson intended to
convey only a right of way for railroad purposes.
While the majority acknowledges that language such as that in
the Simpson deed can be construed as creating an easement, it
concludes that because the deed did not limit the purpose of the
conveyance, it "conveyed fee simple title regardless of the
caption." Majority op. at 444. I disagree. In my judgment, the
captioning of the deed as a Right of Way deed, the lack of any
mention that a fee simple estate is conveyed, and the other
language in the deed relating to relinquishment of any damage
claims relating to the operation of a railway indicate an intention to
convey nothing more than an easement.
DURHAM, C.J., concurs with ALEXANDER, J.
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).