Nature of Action: A purchaser of property claimed
title to an abandoned railroad right of way. The deed
contained an exception for the railroad right of way.
Superior Court: The Superior Court for Pierce
County, No. 87-2-01090-8, E. Albert Morrison, J., on
September 7, 1988, granted a summary judgment in favor of
Court of Appeals: Holding that the grantors had
retained their interest in the right of way by excepting it
from the conveyance, the court reverses the judgment and
quiets title in the defendant.
James A. Gauthier and Law Offices of James A.
Swigart; Donna R. Roper, Bradley A. Maxa, Stephanie
A. Arend and Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, for appellant.
Loren D. Combs and Sampson, Wilson & Combs, for
PETRICH, J.- Ski Park Farms, Inc. appeals from the
trial court's ruling on cross motions for summary
judgment /1 that the title to land consisting of an abandoned
railroad right of way should be quieted in Mary E. Harris.
The issue is whether the owners of property, over which
an abandoned railroad right of way existed, relinquished
their interest in the property underlying the right of way
by a conveyance which excepted the right of way. We hold
that by excepting the right of way from the conveyance,
the owners retained their interest in the property
underlying the right of way and we reverse the trial
court's summary judgment.
On July 2, 1864, pursuant to the 1864 land grant act,
Northern Pacific Railroad Company acquired ownership
of a parcel of land legally described as the southeast
quarter of the northeast quarter of Section 27, Township
19 North, Range 5 E. (the property). Approximately 10
years later, Northern Pacific conveyed the property to
Sam Wilkeson, Jr., by warranty deed, reserving and
excepting the disputed right of way property (the right
of way) as follows:
Reserving and excepting, however, from the above described
premises, a strip of land two hundred feet wide, extending
through the same on the line of the railroad of the said
Northern Pacific Railroad Company or on the line of any of
its branches to be used for a Right of Way or for other
railroad purposes, in case the line of said railroad or any
of its branches has been or shall be located on or over said
described pieces or parcels of land and premises (being part
of the same land granted to the party of the first part by the
United States of America under and by virtue of the said Act
of Congress approved the 2nd day of July, 1864, and included
in the aforesaid mortgage).
Subsequent conveyances of the original parcel passed
the property from Hiram Sabin to John and Opal Winkelman
on May 10, 1946. The warranty deed from Sabin to
Winkelman contained the following language of exception
relating to the right of way:
EXCEPT, the right of way of the Northern Pacific Railway
Company . . . and except tracks appropriated by Northern
Pacific Railway Company in Cause No. 74807 . . ..
Burlington Northern Railroad Company acquired Northern
Pacific's interest in the right of way as a successor
in interest. On December 7, 1984, the Interstate
Commerce Commission authorized the abandonment of the
right of way, which was then abandoned on February 15,
1985 by Burlington Northern. The abandonment was
conducted pursuant to 43 U.S.C. SS 912, which provides in
Whenever public lands . . . have been . . . granted to any
railroad company for use as a right of way. . ., and use and
occupancy of such lands for such purposes has ceased . . .
by abandonment by said railroad company declared or decreed
by a court of competent jurisdiction or by Act of Congress, then
and thereupon all . . . interest . . . in said lands shall . . .
be transferred to and vested in any person . . . to whom . . .
title of the United States may have been granted, conveying
. . . the whole of the legal subdivision or subdivisions
traversed or occupied by such railroad . . . without the
necessity of any other or further conveyance or assurance of
any kind . . . whatsoever . . ..
Although 43 U.S.C. SS 912 states that the abandonment
must be declared by an act of Congress, Congress has
delegated the authority to regulate the abandonment of
rail lines to the Interstate Commerce Commission, which
now has exclusive authority to authorize abandonments.
Chicago & North Western Transp. Co. v. Kalo Brick & Tile
Co., 450 U.S. 311, 321-23, 67 L. Ed. 2d 258, 101 S. Ct.
1124 (1981). When Burlington Northern abandoned the
right of way on February 15, 1985, Opal Winkelman,
individually, and Opal Winkelman, Joan Nelson, and
Mary Eytinge, as trustees of the John C. Winkelman
Family Trust (Winkelman), held fee title to the "legal
subdivision or subdivisions traversed or occupied by"
the right of way. Thus, at the time of abandonment,
title to the right of way vested in Winkelman. However,
Winkelman was not aware of the abandonment or the
vesting of title.
On April 23, 1987, Winkelman sold approximately 60
acres of the property to Ski Park Farms, Inc., for
$143,500. On July 24, 1987, Harris entered into a real
estate purchase and sale agreement with Winkelman for
the purchase of property located within two government
quarter sections, parts of which were bisected by the
railroad right of way, resulting in three small parcels
bounded by either roads, a creek, section lines or the
right of way. The total sale price was $7,000. Harris, who
drafted the legal description, included the following
language: "excepting the Northern Pacific railroad right
of way easement."
The sale closed on October 29, 1987. Prior to closing
of the Harris purchase, the preliminary commitment for
title insurance and all other closing documents, including
the deed, were reviewed both by Harris and by an attorney
on her behalf. The title policy and the deed included
the following exception: "excepting therefrom right of way
of the Burlington Northern (Formerly Northern Pacific)
Railway Company." Then, on February 24, 1988, Winkelman,
by quitclaim deed, conveyed to Ski Park Farms, Inc.,
the fee interest in the abandoned right of way property
in close proximity to Ski Park's property.
In reviewing a summary judgment, this court engages
in the same review as the trial court. Del Guzzi Constr
Co. v. Global Northwest Ltd., 105 Wn.2d 878, 719 P.2d 120
(1986). Summary judgment shall be granted if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law. CR 56(c); Hontz v. State, 105 Wn.2d 302, 714 P.2d
[1, 2] The issue here is construction of the Winkelman
to Harris deed. The construction of a deed generally is
a matter of law for the court. Donald v. Vancouver,
43 Wn. App. 880, 719 P.2d 966 (1986). In construing a deed,
the intent of the parties controls; particular attention is
paid to the intent of the grantor when giving meaning to the
entire language of the deed. Carr v. Burlington Northern,
Inc., 23 Wn. App. 386, 597 P.2d 409 (1979). The intent
must be ascertained from reading the deed as a whole,
and the words are to be given their ordinary meaning.
McKillop v. Crown Zellerbach, Inc., 46 Wn. App. 870, 873,
733 P.2d 559, review denied, 108 Wn.2d 1015 (1987).
 Harris's primary position is that the term "right of
way" is per se ambiguous, and that parol evidence must
be employed to resolve the ambiguity. Zobrist v. Culp,
95 Wn.2d 556, 627 P.2d 1308 (1981). She also invokes
the rule of deed construction that ambiguities must be
interpreted most favorably to the grantee and most strictly
against the grantor. Carr v. Burlington Northern, Inc.,
supra. However, that rule of construction is not helpful
here because it was Harris, the grantee, who prepared the
purchase and sale agreement containing the reference
to the exception of the "right-of-way easement." The
ambiguity in the term "right of way" must be interpreted
equally favorably and detrimentally against both Harris
 Harris argues that the exception in the deed applied
only to a railroad easement over the property described,
and that since the easement was abandoned, she then
owned the fee interest in the property. She relies on
the language in the purchase and sale agreement, which
excepted "the Northern Pacific railroad right-of-way
easement." Her reliance on the purchase and sale agreement
is misplaced. Provisions of a real estate contract and
sale agreement and all prior negotiations merge into the
deed delivered and accepted in fulfillment of the earlier
contract. Black v. Evergreen Land Developers, Inc.,
75 Wn.2d 241, 248, 450 P.2d 470 (1969).
 An exception in a deed is a clause that withdraws
from its operation some part of the thing granted and
which otherwise has passed to the grantee under the
general description. Studebaker v. Beek, 83 Wash. 260,
265, 145 P. 225 (1915). The ambiguity that must be solved
is what Winkelman intended to except from the sale to
Harris. The term "right of way" has indeed been used to
denote a number of different interests in property. In the
context of rights of way created by the 1864 land grant
act and subsequent similar grants, the interest received
by railroad companies before 1871 was referred to as a
"limited fee, with right of reverter", while that received
after 1871 was referred to as an "exclusive use easement".
Vieux v. East Bay Regional Park Dist., 906 F.2d 1330,
1332-35 (9th Cir. 1990). However, the confusion as to the
meaning of the term "right of way" need not be resolved
because at the time of the conveyance to Harris, the right
of way no longer existed.
 The deed stated Winkelman's intent to except from
the sale to Harris the "right of way of the Burlington
Northern . . .." We conclude that Winkelman intended to
reserve whatever interest in the right of way they owned.
Although not known to Winkelman, the right of way had
been abandoned and Winkelman now owned all interest
in the property where the right of way had previously
existed. If the conveyance to Harris was intended to
transfer the property where the right of way had existed,
the exception language was superfluous.
We are satisfied that Winkelman intended to reserve
the property where the abandoned right of way traversed
the quarter sections Winkelman conveyed to Harris. The
later conveyance from Winkelman to Ski Park vested title
to the abandoned right of way property in Ski Park. The
court erred in quieting title to the abandoned right of
way property in Harris.
Reversed and remanded with instructions to enter
summary judgment quieting title in Ski Park Farms, Inc.,
to that disputed portion of the abandoned right of way
property described in Winkelman's quitclaim deed to Ski
Park Farms, Inc.
WORSWICK, C.J., and REED, J. Pro Tem., concur.
Review granted at 118 Wn.2d 1001 (1991).
1. Harris contends that the trial court resolved the
issue based on stipulated facts by entering findings and
conclusions. She thus argues that our task on review is
simply to determine whether the findings are supported
by the stipulation and whether the findings support the
conclusions. She is mistaken. The trial court entered its
order granting plaintiff's motion for summary judgment
which designated the documents and other evidence called
to the attention of the trial court before the order on
summary judgment was entered. RAP 9.12. No reference
whatsoever was made to the findings and conclusions. The
trial court's summary judgment order is now on review
and, for our purposes, the trial court's findings and
conclusions are superfluous. Duckworth v. Bonney Lk.,
91 Wn.2d 19, 21-22, 586 P.2d 860 (1978).