Washington State Supreme Court
Mary E. Harris, Petitioner,
Ski Park Farms, Inc.,Respondent.
[No. 58600-4. En Banc. February 11, 1993.]
Nature of Action: Action to quiet title to a railroad right
of way that was abandoned before common grantors had
conveyed their interests to the plaintiff and the defendant.
The plaintiff acquired her interest by warranty deed containing an
exception for the railroad right of way. The
defendant later acquired its interest by quitclaim deed.
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are three versions of Harris (1993) 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. The third version has added emphasis to highlight the meaning of an exception of a right-of-way in a deed.
View Harris v. Ski Park Farms (1993) with emphasis given to the meaning of the words "right-of-way" in railroad deeds.
View Harris v. Ski Park Farms (1993) with emphasis given to the meaning of an exception of a right-of-way in a deed.
Superior Court: The Superior Court for Pierce County,
No. 87-2-01090-8, E. Albert Morrison, J., on September 7,
1988, entered a summary judgment quieting title in the
Court of Appeals: The court at 62 Wn. App. 371 reversed
the judgment and quieted title in the defendant, holding that
the grantors had retained their fee interest in the right of
way by excepting it from the conveyance.
Supreme Court: Holding that the granters and the
plaintiff intended to except a fee interest, not an easement,
in the railroad right of way and that such fee interest was
conveyed to the defendant in the quitclaim deed, the court
affirms the decision of the Court of Appeals.
Sampson & Wilson, Inc., P.S., by Susan Rae Sampson and
Duncan C. Wilson, for petitioner.
Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim,
by Bradley A. Maxa, Donna R. Roper, and Stephanie A. Arend,
BRACHTENBACH and ANDERSEN, JJ., concur in the result only;
MADSEN, J., did not participate in the disposition of this case.
SMITH, J. - Petitioner Mary E. Harris asks for review of
a decision of the Court of Appeals reversing the trial court's
summary judgment which quieted title in petitioner to a
parcel of property burdened with a railroad right of way.
The Court of Appeals remanded to the Superior Court with
instructions to enter summary judgment quieting title in
Respondent Ski Park Farms, Inc. We granted review and
affirm the Court of Appeals.
The single issue before the court in this case is whether
the Court of Appeals erred in granting summary judgment
in favor of Respondent Ski Park Farms, Inc., and ruling
that a statutory warranty deed from its predecessor in title,
Winkelman, to Petitioner Harris reserved or excepted a fee
interest, and not merely an easement, in the abandoned
railroad right of way property.
On July 2, 1864, pursuant to the 1864 Land Grant Act,
Northern Pacific Railroad Company (Northern Pacific)
acquired ownership to a parcel of land described in the original
handwritten conveyance as "the East half of the North
East quarter of section twenty-seven (27) of Township nineteen (19)
North, range five (5) East of the Willamette Meridian."
Petitioner Harris in her brief refers to the property as
the "southeast quarter of the northeast quarter of Section 27,
Township 19 North, Range 5 E."
On August 12, 1876, the
Northern Pacific Railroad Company, by deed, conveyed certain
property in Pierce County to Samuel Wilkeson, Jr. The deed included the legal description of the disputed property
and contained an exception as follows:
[The] East half of the North East quarter of section twenty
seven (27) of Township nineteen (19) North, range five (5) East
of the Willamette Meridian . . ..
[R]eserving 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 second
day of July 1864, and included in the aforesaid mortgage,)
together with all and singular, the improvements waters, water
courses rights, liberties, privileges, hereditaments and
appurtenances whatsoever thereunto belonging or in any wise
appertaining, and the reversions and remainders, rents issues and
profits thereof and all the estate, rights title interest, profits
claim and demand whatsoever, of them the parties of the first
and second parts in law equity or otherwise, howsoever of in and
to the same and every part thereof. . . .
The trial court in its order granting summary judgment
and the Court of Appeals in its opinion
use the same legal
description used by appellant and substantially the same
language of the exception. However, the tax deed relied upon
by Petitioner Harris identifies the property as "[t]hat portion
of the northeast quarter of the northeast quarter of Section
27 township 19 north range 5 east lying southeasterly of
Orting-South Prairie Highway Except railroad right of way
Easement of record."
Subsequent conveyances of the parcel passed the property
from Hiram O. and Ethel E. Sabin to John J. and Opel V.
Winkelman on May 10, 1946.
The warranty deed contained
the following legal description:
[T]he northeast quarter of southeast quarter, and that part
of the southeast quarter of northeast quarter of Section Twenty-
seven (27), Township Nineteen (19) North, Range Five (5) East
of the Willamette Meridian, lying east of the South Prairie
*EXCEPT the right of way of the Northern Pacific Railway
Company* . . . and EXCEPT tracts appropriated by Northern
Pacific Railway Company in Cause No. 74807 . . . and Pierce
County in . . . Cause No. 44906.
(Italics ours.) Petitioner Harris acquired the property by a
tax deed dated December 20, 1983, from the Pierce County
Assessor-Treasurer. That deed described the property as:
Parcel No. 05-19-27-1-006
That portion of the northeast quarter of the northeast quarter
of Section 27 township 19 north range 5 east lying southeasterly
of Orting-South Prairie Highway Except railroad right
of way Easement of record.
Burlington Northern Railroad Company (Burlington
Northern) acquired Northern Pacific's interest in the right of
On December 7, 1984, the Interstate Commerce
Commission authorized Burlington Northern to abandon the
right of way. It was abandoned by Burlington Northern on
February 15, 1985
pursuant to 43 U.S.C. SS 912, which
At the time of abandonment, Ms. Opel V. Winkelman and
the Winkelman Family Trust (Winkelman) held title to the
land subject to the right of way. Although Winkelman was
not aware that the right of way had been abandoned, pursuant
to 43 U.S.C. SS 912 title to the right of way vested in
Winkelman upon its abandonment.
Whenever public lands of the United States have been . . .
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 . . . 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, . . .
be transferred to and vested in any person . . . to whom . . . title
of the United States may have been . . . granted, conveying or
purporting to convey 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 or nature whatsoever . . ..
On April 23, 1987, Winkelman by real estate contract
conveyed 60 acres of the parcel (lot 6) to Ski Park Farms
(Ski Park) for $143,500.
On July 24, 1987, Ms. Mary E.
Harris (Harris) entered into a purchase and sale agreement
with Winkelman for two parcels of the property, one of
which was bisected by the right of way. The sale price was
$7,000. Ms. Harris prepared the legal description of the
property for the purchase and sale agreement, signed by
Winkelman, which included the following description:
All of that portion of tax parcel #05-19-27-1-003 lying
between State Route 162 (Pioneer Way) and the South Prairie-
Carbon River Road *excepting the Northern Pacific Railroad
All of that portion of tax parcel #05-19-26-2-007 lying
between the South Prairie Creek and the South Prairie-Carbon
River Road *excepting the Northern Pacific railroad right-of-
The sale to Ms. Harris closed on October 29, 1987. The
closing documents, including the deed and preliminary title
insurance, were reviewed by Ms. Harris and her attorney
prior to closing. The statutory warranty deed included the
On February 24, 1988, Winkelman by quitclaim deed conveyed
its interest in the right of way to Ski Park, reserving
to Winkelman "a 30 foot non-exclusive easement for ingress[,]
egress and utilities. . .."
The deed conveyed:
That portion of the West Half of the Northwest quarter of
section 26, Township 19, North range 5 East, Willamette
Meridian, Pierce County, Washington lying, Southeasterly of
South Prairie Creek and Northwesterly of South Prairie-Carbon
River County Road, *Excepting there from right of way
of the Burlington Northern (Formerly Northern Pacific) Railway
That portion of the Southeast Quarter of the Northeast
Quarter of Section 27, Township 19, North Range 5 East of the
Willamette Meridian, Pierce County, Washington, which lies
Southeasterly of the Southeasterly margin of State Route 162
(Pioneer Way) and northwesterly of South Prairie-Carbon River
County Road, *Excepting there from right of way of the Burlington
Northern (formerly Northern Pacific) Railway Company.*
Situate in Pierce County, Washington.
SUBJECT TO Easements, Restrictions, Reservations, Conditions,
and Provisions of record.
That portion of the Burlington Northern Railroad Company's
(formerly Northern Pacific Railway Company) McMillan to
Buckley, Washington Branch Line right-of-way, now
abandoned, located upon, over and across section 27, Township
19 North Range 5 East, W.M., described as follows:
On March 10, 1988, in a third amended complaint, Petitioner
Harris brought an action against Ski Park to quiet
title to the right of way property.
Ski Park filed a motion
for summary judgment and Ms. Harris filed a cross motion
for summary judgment to quiet title. On July 5, 1988, Judge
E. Albert Morrison, Pierce County Superior Court, denied
both motions, concluding that the matter presented factual
questions which could not be resolved on summary judgment.
Both parties filed motions for reconsideration. On
July 22, 1988, the court heard the motions. At that time,
counsel for both parties agreed that all material facts in the
case were before the court.
All that portion of said Railroad Company's 400 foot wide
Branch Line right-of-way being 200 feet on each side of said
Main Track centerline in the North half of the Southeast
quarter of said Section 27, lying Northerly of the West
production of the South line of Lot 6 of Survey No. 8701200255,
recorded January 2, 1987, and South of the North line of said
North half of the Southeast quarter of said Section 27.
Also all that portion of said Railroad Company's 200 foot
wide Branch Line right-of-way being 100 feet on each side of
said Main Tract centerline in the Southeast quarter of the
Northeast quarter of said Section 27, lying North of the south
line of said Southeast quarter of the Northeast quarter of said
Section 27, and lying South of North line of said Southeast
quarter of the Northeast quarter of said Section 27.
Additional Terms and conditions: see schedule A, attached.
. . . .
EASEMENT AND RESERVATION
The sellers herein further RESERVE unto themselves, their
heirs, successors and assigns a 30 foot non-exclusive easement
for ingress[,] egress and utilities along the South line of which
is the West Production of the South line of lot 6 of survey No.
8701200255, for the benefit of Lots 4 and 5 of said survey and
each and every subdivision thereof.
Said easement may also be conveyed by the sellers herein
to each and every lot owner between the Carbon River and the
South line of Lot 6 of said survey or any future reciprocal
The trial court later on September 7, 1988, granted summary
judgment quieting title in Petitioner Harris.
court considered the declarations of several persons. Clark
R. McGowan (McGowan), a real estate broker, was Winkelman's
representative in the sale. He declared that no verbal
or written representation was made to convey the right of
way to Harris and that the exception language clearly
showed intent not to convey the right of way.
employed John Becker (Becker), a professional land surveyor,
to draft the legal description in the deed. Becker
declared that Winkelman expressed no intention to reserve
a fee interest in the right of way, that the exception
language was to recognize that Burlington Northern had and
might still have an interest in the right of way, and that if
he had been instructed to prepare a deed that reserved a fee
interest in the right of way, he would not have used the
language that appears in the deed.
The declaration of Winkelman stated that it would not
have quitclaimed the right of way to Ski Park if it believed
the property had already been conveyed to Ms. Harris and
that it did not sell any ownership rights to the right of way
property to her.
However, Ms. Harris in an unsigned
declaration asserted that it was her intention to acquire a fee
interest in the property formerly subject to the right of way,
and that it was her understanding that she was acquiring
the underlying fee in the right of way from Winkelman.
We can give no credence to the declaration because it was
not signed and contained the notation "Original to be filed
when signature obtained".
The record before us does not
contain the signed document.
The parties stipulated before the trial court that there
were no facts material to resolution of the motions for
summary judgment which were not before the court.
On appeal, the Court of Appeals, Division Two, reversed
the trial court and quieted title in Ski Park. The court held
that in the conveyance to Petitioner Harris, Winkelman intended
to "reserve whatever interest in the right-of-way they
owned." The court noted that "[a]lthough 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." It further stated that
"[i]f the conveyance to Harris was intended to transfer the
property where the right of way had existed, the exception
language was superfluous.
The court concluded that:
[W]inkelman 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.
The court then remanded to the trial court with instructions
to enter summary judgment quieting title in Ski Park "to
that disputed portion of the abandoned right of way property
described in Winkelman's quitclaim deed to Ski Park Farms,
On December 3, 1991, this court granted review.
Petitioner Harris claims that she acquired from Winkelman
a fee interest in the right of way. She acknowledges
that the 1987 warranty deed from Winkelman to her contains
the clause "excepting there from right of way of the
Burlington Northern (formerly Northern Pacific) Railway
Company." However, she contends that this excepts merely
an easement and not the underlying fee interest. She
further contends that abandonment of the right of way by
Burlington Northern in 1985 by operation of law resulted in
her acquisition of the fee interest in the right of way. Ski
Park claims a fee interest in the right of way through its
1988 quitclaim deed from Winkelman. It contends that the
exception in the warranty deed from Winkelman to Harris
excepted a fee interest in the right of way; and that the
subsequent quitclaim deed from Winkelman to Ski Park
thus gave Ski Park the fee interest in the right of way.
[1, 2] Summary judgment is appropriate "if the pleadings,
depositions, . . . 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
A material fact is one upon which the outcome of
the litigation depends.
The court must consider the facts
submitted and all reasonable inferences from those facts in
the light most favorable to the nonmoving party and the
motion should be granted only if, from all the evidence,
reasonable persons could reach but one conclusion.
review of summary judgment an appellate court engages in
the same inquiry as the trial court.
 The term "right of way" may mean a "mere right of
passage over a tract, and sometimes to describe the strip of
land which railroad companies purchase, or otherwise compulsorily
acquire, upon which to construct their railroad."
The term "easement" means a "right, distinct from ownership,
to use in some way the land of another, without
 "A conveyance of a right-of-way to a railroad may be
either in fee simple or may be an easement only."
interpretation of such a deed to determine its effect is a
mixed question of fact and law. It is a factual question to
determine the intent of the parties. Then we must apply the
rules of law to determine the legal consequences of that
This court in Morsbach v. Thurston County stated that a
railroad right of way is more than an easement.
statement was clarified in Swan v. O'Leary, which stated
that the intention of the parties to the conveyance is of
paramount importance and must ultimately prevail in a given
In determining the intent of the parties, courts
have considered whether the consideration was substantial
or nominal, whether the deed conveyed a strip or tract of
land and limited its use to a specific purpose, whether the
deed contained a habendum clause, and whether the deed
contained a clause providing that if the railroad ceased to
operate, the land conveyed would revert to the grantor.
When the granting clause of a deed conveys a right of way
to a railroad, this court has usually concluded that the deed
passes an easement and not a fee with a restricted use:
[I]t is clear that we adopted the rule that when 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.
In Veach v. Culp,
the court reiterated the "well
established principle" that "we must look to the actual use being
made of . . . [the] easement in light of the rule that the
servient owner retains the use of the easement so long as
that use does not materially interfere with the use by the
holder of the easement."
The plaintiffs in that case sought
removal of a chain link fence blocking their access along a
railroad right of way which crossed their property. The
railroad made minimal use of its track. The court concluded
that because of the railroad's limited use of the easement,
the plaintiffs, as holders of the subservient estate, were
entitled to use the right of way in such a manner that it
would not materially interfere with the railroad's use of it.
 Both Petitioner Harris and Ski Park agree that this
case involves an interpretation of deeds problem. The
interpretation of a right of way deed is a mixed question of
fact and law.
A court should construe a deed grant in a
manner which gives effect to the intent of the parties.
The intent of the parties is to be derived from the entire
instrument and, if ambiguity exists, the situation and
circumstances of the parties at the time of the grant are
to be considered.
Since both Harris and Ski Park filed motions for summary
judgment, the facts must be reviewed in the light most favorable
to the nonmoving party in considering each motion.
SKI PARK MOTION FOR SUMMARY JUDGMENT
Ski Park argues that in the grant from Winkelman to Ms.
Harris, it was the parties' intent to except a fee interest in
the right of way and not merely an easement and that
Winkelman therefore subsequently quitclaimed to Ski Park
a fee interest in the right of way. In support of its position,
Ski Park argues (1) that the terms "excepting" and "right of
way" except a fee interest, (2) that because Winkelman
owned the right of way in fee at the time of the grant to Ms.
Harris, the deed excepted a fee interest, and (3) that the
doctrine of merger prevents use of the purchase and sale
agreement to interpret an ambiguity in the deed.
Ski Park cites an early case to define the term "exception"
as a "clause in a deed which withdraws from its operation
some part of the thing granted, and which would otherwise
have passed to the grantee under the general description
[and] [t]he part excepted is in existence at the time of
the grant, and remains . . . unaffected by the conveyance."
Using this definition, it argues that use of the term
"excepting" necessarily prevents the grantee, Ms. Harris, from
obtaining the entire fee interest in the property conveyed
because Northern Pacific reserved a right of way, within its
ordinary meaning, and because, before signing, Ms. Harris
and her attorney reviewed the closing documents which
made no reference to an easement.
An easement is a burden on the land and an interest in
The term "excepting" arguably could have been used
by the parties to express their understanding that, although
Ms. Harris was receiving a fee interest, her rights were not
plenary, but subject to an easement. This would be consistent
with Ms. Harris' assertion that she thought the deed
was excepting only an easement and that she was in fact
acquiring the underlying fee to the railroad right of way, but
this assertion is not properly before us.
The deed from Northern Pacific to Wilkeson did not
explicitly reserve a fee. The right of way thus arguably could
be considered as either a fee interest or simply an easement.
The deed description of the right of way ("a strip of land two
hundred feet wide") and its purpose ("to be used for a right
of way, or for other railroad purposes") would ordinarily
create an easement only and not a fee simple interest.
This is inconsistent with Ski Park's arguments that Northern
Pacific reserved a fee and that the common meaning of a
right of way is a fee interest. Similarly, the fact that Ms.
Harris and her attorney reviewed the closing documents and
did not object to lack of reference to an easement does not
necessarily support Ski Park's conclusion that a fee was
excepted. Further, the deed was prepared by Winkelman's
agent, Becker, who stated that if he had been instructed to
reserve a fee interest, he would not have used the language
used in the deed. This assertion, of course, is speculation
and cannot of itself be used to establish the intent of
 Burlington Northern abandoned the right of way in
1985, 2 years prior to Winkelman's conveyance to Ms. Harris.
Ski Park argues that if the exception clause is interpreted
as withholding only an easement, nothing would be
withheld because the right of way no longer existed and
Winkelman held the entire parcel in fee at the time it conveyed
to Harris. The Court of Appeals, in granting summary
judgment in favor of Ski Park, also focused on abandonment
of the right of way. The Court of Appeals concluded that
since the right of way was no longer in existence, Winkelman
intended to reserve in fee the property where the right of
way once existed. The court stated that its conclusion as to
Winkelman's intent was necessary because to hold otherwise
would make the exception language "superfluous". However,
that language would be superfluous only if Winkelman
intended to except an easement knowing that an easement
no longer existed. Since Winkelman did not know of the abandonment (and the resulting fee interest), it cannot be
said with certainty that it intended to reserve the fee interest
in the right of way. This court has held that the intent of
the parties must prevail. The real estate contract between
Winkelman and Ski Park dated April 23, 1987, which antedates
the October 29, 1987, statutory warranty deed to Petitioner
Harris, at least provides some support to a conclusion
that Winkelman intended to reserve a fee interest in the
railroad right of way, notwithstanding the confusion created
by the language in the purchase and sale agreement prepared by
Ski Park finally argues that, under the doctrine of merger,
the purchase and sale agreement merged into the deed. The
trial court, in granting summary judgment in favor of Ms.
Harris, relied on the language of the purchase and sale
agreement. However, the Court of Appeals held that the
purchase and sale agreement was not controlling because it
merged into the deed. Both Ski Park and the Court of
Appeals rely on Black v. Evergreen Land Developers.
that case recognized that there were exceptions to the
merger doctrine. This court has held that where the intent of
the parties is not clearly expressed in the deed, courts may
consider parol evidence.
In order to determine the intent of
the parties, extrinsic evidence is admissible as to the entire
circumstances under which a contract is made.
 This court has adopted the "context rule" which succinctly
stated is that "extrinsic evidence is admissible as to
the entire circumstances under which [a] contract [is] made,
as an aid in ascertaining the parties' intent", specifically
adopting the Restatement (Second) of Contracts SSSS 212,
This court in Berg v. Hudesman
rejected "the theory that
ambiguity in the meaning of contract language must exist
before evidence of the surrounding circumstances is admissible"
and overruled cases to the contrary.
The purchase and sale agreement in this case may be
considered as some evidence of the circumstances of the
parties at the time of the grant. Even considering, in the
light most favorable to Ms. Harris, that both Winkelman
and Harris signed the purchase and sale agreement, a conclusion
that the parties intended to except only an easement
and not a fee interest ("excepting the Northern Pacific
railroad right of way easement") is tenuous, at best.
Applying the rules on summary judgment, the undisputed
facts in this case and the law favor summary judgment for
Respondent Ski Park Farms.
HARRIS MOTION FOR SUMMARY JUDGMENT
Petitioner Harris' position is that the deed excepted only
an easement and since the easement was extinguished by
the abandonment, she acquired a fee interest in the entire
parcel. She argues that the parties intended to except an
easement and not a fee interest in the right of way and that
an ambiguous deed should be interpreted in favor of the
grantee. She further contends that the Court of Appeals
erred in granting summary judgment in favor of Ski Park
by concluding that the right of way had been abandoned
when Winkelman did not even know of the abandonment at
the time it granted the property to her.
To support her position that the parties intended to except
an easement, petitioner argues that she used the term "easement"
in the purchase and sale agreement, which was signed
by Winkelman; that the phrase "railroad right of way" historically
reserved an easement; and the language in the deed
reflects the historical interpretation of the phrase. She
further argues that her quiet title action was known to
Winkelman and that was evidence that both parties knew that
Harris intended to acquire the fee interest in the right of
way. She also claims that because Winkelman did not know
of abandonment of the right of way by the railroad, it could
not have intended to except a fee interest it did not know it
had. Any facts relating to the intent of the parties must be
obtained from sources other than Petitioner Harris. Her
declaration is unsigned and cannot be considered on the
record before us.
Use of the term "easement" in the purchase and sale
agreement and the historical interpretation of the phrase
"railroad right of way" may provide some indication of Ms.
Harris' intent to except only an easement, but it does not
lead to the same conclusion on Winkelman's intent. Winkelman
has stated that it did not intend to transfer any ownership
rights in the right of way to Ms. Harris. If Winkelman
knew of her quiet title action, it may indicate some knowledge
that Ms. Harris wanted a fee interest, but it does not
indicate Winkelman's intent to convey a fee interest. McGowan,
seller Winkelman's agent, stated that the sellers
gave no indication of an intent to convey the right of way to
Ms. Harris at closing or at any time in the future. Although
Winkelman did not know the right of way had been abandoned
and that it now held reversionary title to it, it meant
to reserve under the exception whatever interest it had.
Winkelman stated that its understanding of the exception
language was that it excepted conveyance of the right of
way regardless whether it was an easement or a fee
interest. Therefore, viewing the facts in the light most
favorable to Ski Park, it cannot be said that the one conclusion
reasonable persons could reach is that the parties
intended to convey only an easement and not a fee interest.
Petitioner Harris argues that the deed should be construed
in favor of the grantee. She states that the facts
supporting her contention are that the deed was prepared
by Becker, grantor Winkelman's agent; that Becker stated
that he was not told to withhold the fee in the conveyance;
and Becker stated that if he had been so instructed, he
would have used language different from that used in the
 While ambiguity in a deed is resolved against the
the intent of the parties is of paramount
The statutory warranty deed dated October 29,
1987, is not ambiguous. Any ambiguity is created by the
language of the July 24, 1987, purchase and sale agreement.
Winkelman stated that it did not intend to sell any
ownership rights in the right of way. Viewing this fact in
the light most favorable to Ski Park, it is reasonable to
conclude that Winkelman intended to except a fee interest
in the property and not merely an easement.
 Petitioner Harris further argues that because neither
party knew the status of the right of way, there was no
intent to act as if the right of way had been extinguished
and held in fee by Winkelman. However, on the record in
this case, Ms. Harris could have known that the right of way
was held by Winkelman in fee. Ms. Harris initiated a quiet
title action in February 1987, 8 months prior to closing her
purchase from Winkelman. In her complaint, she acknowledged
that Burlington Northern abandoned the right of way
in 1985 and that upon abandonment, the right of way
immediately vested in the original grantors or their
successors. One may infer that she knew Winkelman held a fee
interest in the right of way and she nevertheless agreed to
the exception. Petitioner contends that Burlington Northern's
claim to the right of way was unsettled at the time of
the conveyance. The only support for her contention is a
letter she received from the Pierce County Prosecuting
Attorney in January 1987 which advised her that Burlington
Northern had not abandoned its claim to ownership to
the property. Although there is no clear evidence that she
had actual knowledge of ownership, she might logically have
insisted that Winkelman quitclaim the right of way to her if
she intended to acquire the fee interest in the right of way.
This she did not do. As to Winkelman's intent, it stated that
it would not have quitclaimed the right of way to Ski Park if
it believed that it had already conveyed the property to Ms.
Harris. Subsequent acts of a party to a contract are admissible
to assist in ascertaining intent.
quitclaim of the right of way to Ski Park, and its prior
sale by real estate contract, is consistent with its intent to
convey only an easement to Petitioner Harris.
We agree with the Court of Appeals that the trial court
erred in granting summary judgment quieting title in
Petitioner Harris and that summary judgment should be
granted in favor of Respondent Ski Park Farms, Inc.,
quieting title in it.
From the record in this case, we conclude that the reservation
and exception granting a right of way to the Northern
Pacific Railroad reserved and excepted a fee interest in the
property; and that abandonment of the right of way by the
railroad resulted in reversion to the owner of the property
(Winkelman), who conveyed by statutory warranty deed a
portion of the acreage to Petitioner Harris, reserving a fee
interest in the railroad right of way, and conveying the
remainder of its property interest by quitclaim deed to
Respondent Ski Park Farms, Inc.
We affirm the Court of Appeals and remand the case to
the trial court for entry of summary judgment and quiet
title in favor of Respondent Ski Park Farms, Inc.
DORE, C.J., and UTTER, DOLLIVER, DURHAM, GUY, and
JOHNSON, JJ., concur.
BRACHTENBACH and ANDERSEN, JJ., concur in the result.
Reconsideration denied June 8, 1993.
1 Land Grant Act of 1864, 13 Stat. 365.
2 Clerk's Papers, at 182.
3 Brief of Petitioner, at 4. This is consistent with the
legal description in the title report dated November 10,
1987. Clerk's Papers, at 255.
4 Clerk's Papers, at 182. The language is transcribed from
a copy of the original handwritten deed included in the
Clerk's Papers, the original of which is on file in volume 5
of Deeds, Pierce County, at 351-54.
5 Clerk's Papers, at 346.
6 Harris v. Ski Park Farms, Inc., 62 Wn. App. 371, 814
P.2d 684 (1991).
7 Clerk's Papers, at 84.
8 Clerk's Papers, at 200. The record does not indicate
intervening conveyances prior to Sabin's conveyance to
9 Clerk's Papers, at 303.
10 Clerk's Papers, at 84.
11 Clerk's Papers, at 22. The record does not indicate the
date of this acquisition.
12 Clerk's Papers, at 248.
13 (Italics ours.) 43 U.S.C. SS 912.
14 Clerk's Papers, at 201. The contract reserved "a 30
foot non-exclusive easement for ingress, egress and
utilities . . .. "The document in the file is not signed,
but a declaration asserts that the transaction was executed.
That assertion is not contested. Clerk's Papers, at 216.
15 Clerk's Papers, at 245. The document referred to a
sketch which was attached.
16 Clerk's Papers, at 207, 255.
17 Clerk's Papers, at 212-13.
18 Clerk's Papers, at 135. Petitioner Harris and 39 other
plaintiffs (Citizens Against the Trail) initially filed a
quiet title action on February 20, 1987. Ski Park was joined
as a defendant with an interest in the subject property.
Since the claims between Ms. Harris and Ski Park were unlike
the claims of the other parties, the trial court bifurcated
the action. Only Petitioner Harris is a party before this
court. Clerk's Papers, at 173.
19 Report of Proceedings, at 64.
20 Report of Proceedings, at 108.
21 Clerk's Papers, at 344.
22 Clerk's Papers, at 259.
23 Clerk's Papers, at 266.
24 Clerk's Papers, at 216.
25 Clerk's Papers, at 261.
26 Clerk's Papers, at 265.
27 Report of Proceedings, at 96, 97, 99, 108.
28 Harris v. Ski Park Farms, Inc., 62 Wn. App. 371, 377,
814 P.2d 684 (1991).
29 Harris, at 377.
30 CR 56(c).
31 Jacobsen v. State, 89 Wn.2d 104, 569 P.2d 1152 (1977).
32 Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030
33 Marincovich v. Tarabochia, 114 Wn.2d 271, 787 P.2d 562
34 Morsbach v. Thurston Cy, 152 Wash. 562, 568, 278 P. 686
35 Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135
36 Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979).
37 Veach, at 573.
38 Morsbach v. Thurston Cy., 152 Wash. 562, 278 P. 686
39 Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950).
40 Swan v. O'Leary, supra.
41 Veach v, Culp, 92 Wn.2d 570, 574, 599 P.2d 526 (1979)
(quoting Swan v. O'Leary, supra). See King Cy. v. Squire
Inv. Co., 59 Wn. App. 888, 801 P.2d 1022 (1990) (Washington
cases show a strong tendency to consider such rights of way
42 92 Wn.2d 570, 599 P.2d 526 (1979).
43 Veach, at 575.
44 Veach v. Culp, supra; Roeder Co. v. Burlington
Northern, Inc., 105 Wn.2d 567, 716 P.2d 855 (1986).
45 Zobrist v. Culp, 95 Wn.2d 556, 627 P.2d 1308 (1981).
47 Biles v. Tacoma, O. & G.H.R.R., 5 Wash. 509, 32 P. 211
(1893). See also Studebaker v. Beek, 83 Wash. 260, 265, 145
P. 225 (1915).
48 Kesinger v. Logan, 113 Wn.2d 320, 779 P.2d 263 (1989)
(an easement is an interest in land within the purview of
the conveyance statute).
49 Clerk's Papers, at 265. We cannot consider this
assertion because it is contained only in an unsigned
50 Veach, at 574.
51 75 Wn.2d 241, 450 P.2d 470 (1969).
52 Roeder Co. v. Burlington Northern, Inc., 105 Wn.2d 269,
714 P.2d 1170 (1986).
53 Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990).
54 Berg, at 667, 668.
55 115 Wn.2d 657, 801 P.2d 222 (1990).
56 Berg, at 669.
57 Kunkel v. Meridian Oil, Inc., 114 Wn.2d 896, 901, 792
P.2d 1254 (1990).
58 Swan, at 535.
59 Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 510
P.2d 221 (1973).