Nature of Action: Property owners abutting two
railroad rights of way which had been discussed as possible
public recreational trails, with the abandonment of rail
service on one of them having been authorized by the ICC,
challenged the validity of statutes permitting recreational
public use of the rights of way without compensation to the
owners of reversionary interests.
Superior Court: The Superior Court for King County,
No. 85-2-04782-6, Jim Bates, J., dismissed the complaints
on July 16, 1985, for failure to state a claim upon which
relief could be granted.
Supreme Court: Holding that recreational use of the
rights of way would terminate the easements described in
the complaints, that reversionary interests exist at common
law, that such interests could not be defeated by legislative
act and not taken for a public use without compensation,
and that federal legislation did not affect such rights, but
that one group of property owners did not present a
justiciable controversy, the court reverses the dismissal by the
trial court except as to the parties not presenting a
justiciable controversy, and remands the remaining issues for
Morris & Rodgers, S. Michael Rodgers, and Daryl A.
Deutsch, for appellants.
Kenneth O. Eikenberry, Attorney General, and Shirley
W. Battan, Assistant, for respondent State.
Norm Maleng, Prosecuting Attorney, and Fred A.
Kaseburg, Deputy, for respondent King County.
PEARSON, J., concurs by separate opinion; UTTER, J., dissents
by separate opinion.
DOLLIVER, C.J.-In these consolidated actions, the
plaintiffs are owners of property abutting or bisected by railroad
rights of way. Among other things, plaintiffs challenge the
constitutionality of RCW 64.04.180 and RCW 64.04.190.
These statutes authorize a change in the use of a railroad
right of way to a public nonrailroad use without compensation
to holders of reversionary interests in the right of way.
Plaintiffs Donald M. and Janet Sue Wright own property
bisected by a right of way which runs along the east side of
Lake Sammamish in King County. Burlington Northern
Railroad Company has operated a railroad over this right of
way. The remaining plaintiffs own land abutting a second
right of way in King County, which is 4.8 miles long and
lies between Kenmore and Woodinville. Burlington Northern
also operated a railroad over this right of way, but in
December 1984, it petitioned the Interstate Commerce
Commission for permission to discontinue rail service over
this right of way.
In a letter dated January 30, 1985, King County
requested the ICC to impose a public use condition upon
abandonment of the 4.8-mile long right of way, pursuant to
49 U.S.C. SS 10906 and 49 C.F.R. SS 1152.28. King County
sought a finding that the right of way is suitable for "other
public purposes" and for "public use." King County intends
to use a portion of this right of way as a recreational hiking
and bicycle trail linking the existing Burke-Gilman and
Sammamish River trails.
In June 1985, the ICC authorized Burlington Northern to
abandon rail service over the Kenmore-Woodinville right of
way, and imposed a 120-day right of way "public use"
condition. Under this condition, the right of way could not
be disposed of during 120 days after the ICC order unless it
was first offered for sale for public purposes on reasonable
In the meantime, the Wrights filed this action against the
State of Washington, King County, the King County Parks
and Recreation Department, and Burlington Northern.
They sought a declaratory judgment holding RCW
64.04.180 and RCW 64.04.190 unconstitutional on the ground
that they authorize unlawful takings without just compensation.
Const. art. 1, SS 16. A second, similar complaint was
filed against the same parties, plus the City of Bothell, by
a number of owners of property abutting the right of way
between Kenmore and Woodinville. Both complaints
contain allegations that plaintiffs own the reversionary
interests in the land underlying the rights of way, and
allegations that, in the original conveyances to Burlington
Northern's predecessor in interest, only easements were
granted. The plaintiffs further alleged existence of the
statutes depresses their land values, and the Wrights
contended that the statutes create a cloud upon their title.
Following consolidation of the two cases for trial, King
County moved under CR 12(b)(6) for dismissal of the
complaints for failure to state a claim upon which relief can
be granted. On July 16, 1985, the trial court granted this
motion. The court concluded: a right of way granted to a
railroad is a perpetual public easement; abandonment of a
railroad right of way does not occur upon a change in use
from railroad purposes to some other form of public
transportation, and thus a change in use from "rails to trails"
does not constitute abandonment of the right of way; King
County can acquire a railroad right of way and use it
for nonrailroad public transportation purposes without
compensating any reversionary interest holders; and RCW
64.04.180 and RCW 64.04.190 are constitutional. We
accepted direct review, and now reverse.
As a preliminary matter, we grant King County's motion
to submit additional evidence on review. This evidence is
King County's purchase from Burlington Northern, via
quitclaim deed, of the Kenmore-Woodinville right of way.
We have applied the criteria of RAP 9.11, and find the
proffered evidence meets the requirements of the rule. See
Washington Fed'n of State Employees v. State, 99 Wn.2d 878,
665 P.2d 1337 (1983). The evidence is important to our
disposition of these actions.
King County has also moved to strike all or portions of
plaintiffs' brief. The County has included this motion in its
brief. A party may include in a brief only a motion which, if
granted, would preclude hearing the case on the merits.
RAP 10.4(d). Under the facts here, striking the particular
statements in plaintiffs' brief which the County challenges
would not preclude hearing this case on the merits.
Therefore, we decline to address the motion.
 Turning to the issues raised in this appeal, we
emphasize at the outset that the trial court dismissed this
case on King County's motion to dismiss for failure to state
a claim upon which relief can be granted. CR 12(b)(6). For
purposes of a CR 12(b)(6) motion, the plaintiffs' factual
allegations are presumed to be true. Bowman v. John Doe,
104 Wn.2d 181, 183, 704 P.2d 140 (1985). An action may be
dismissed under CR 12(b)(6) only if "'it appears beyond
doubt that the plaintiff can prove no set of facts, consistent
with the complaint, which would entitle the plaintiff to
relief.'" Bowman, at 183 (quoting Orwick v. Seattle,
103 Wn.2d 249, 254, 692 P.2d 793 (1984); Corrigal v. Ball &
Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580
(1978)). Plaintiffs have alleged Burlington Northern's
predecessor in interest acquired easements for railroad
purposes only, and these easements will revert to plaintiffs
upon abandonment of the rights of way by Burlington
We acknowledge that ordinarily the construction of right
of way deeds is a mixed question of fact and law. Roeder
Co. v. Burlington Northern, Inc., 105 Wn.2d 567, 571-72,
716 P.2d 855 (1986). Ascertaining the parties' intent is a
factual question, and is determined from the entire
document. Roeder Co., at 572. Due to the nature of its decision,
the trial court reached no conclusion as to the nature of
plaintiffs' interests. On the limited record provided us for
purposes of reviewing the trial court's decision to grant the
CR 12(b)(6) motion, we also do not determine the nature of
plaintiffs' interests. As we explain here, if plaintiffs can
prove their allegations, they would be entitled to the relief
they seek. The trial court erred in granting King County's
motion to dismiss.
 We first address the issues raised in light of common
law principles. Defendants argue that under Washington
law a railroad is a perpetual public easement. They contend
that a railroad right of way easement does not terminate
upon a change from one transportation use to another
transportation or recreation use, or any other consistent
public use. We disagree.
It is true railroad companies were created on the theory
that they will provide a public benefit. Pursuant to statute,
the State has conferred upon them special and extraordinary
privileges. In return, the railroads must hold their
property in trust for the public use. Puget Sound Elec. Ry.
v. Railroad Comm'n, 65 Wash. 75, 83-84, 117 P. 739 (191 1).
A railroad is a public highway, created for public purposes.
Puget Sound Elec. Ry., at 84.
But these considerations do not necessarily lead to the
conclusion that a railroad right of way is a perpetual public
easement. To the contrary, this court has frequently
recognized that railroad rights of way revert to reversionary
interest holders when a railroad company abandons a line.
See, e.g., Roeder Co. v. Burlington Northern, Inc.,
105 Wn.2d 567, 716 P.2d 855 (1986); Zobrist v. Culp,
95 Wn.2d 556,
627 P.2d 1308 (1981); Morsbach v. Thurston Cy., 152
Wash. 562, 278 P. 686 (1929). These cases demonstrate
that, under Washington law, when an easement is granted
to a railroad through a private conveyance, the easement is
not a "perpetual public easement." Instead, the particular
deeds conveying the right of way must be interpreted to
determine the scope and duration of the easement granted.
See Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950).
This is true even though, as this court has observed, a
railroad easement has a peculiar nature as "a very substantial
thing . . . more than a mere right of passage . . . more
than an easement." Morsbach v. Thurston Cy., supra at 569.
At common law, where a deed is construed to convey a
right of way for railroad purposes only, upon abandonment
by the railroad of the right of way the land over which the
right of way passes reverts to the reversionary interest
holder free of the easement. See generally Roeder Co. v.
Burlington Northern, Inc., 105 Wn.2d at 571; Swan v.
O'Leary, supra; Morsbach v. Thurston Cy., supra. In
addition to outright abandonment of a right of way, there may
be a change in use of the right of way which is inconsistent
with the purpose for which the right of way was granted.
Where the particular use of an easement for the purpose for
which it was established ceases, the land is discharged of
the burden of the easement and right to possession reverts
to the original landowner or to that landowner's successor
in interest. Roeder Co. v. Burlington Northern, Inc.,
105 Wn.2d at 571. Cf. 3 J. Sackman, Nichols on Eminent
Domain SS 9.35, at 9-113 (3d rev. ed. 1985) (imposition of a
new easement of a nature different from the old one, and
wholly inconsistent with it, amounts to abandonment of the
In determining the meaning of a grant, it will be inferred,
in the absence of express language to the contrary, that the
grantee is not restricted to the methods of use which were
current at the time of the grant. See, e.g., Faus v. Los
Angeles, 67 Cal. 2d 350, 431 P.2d 849, 62 Cal. Rptr. 193
(1967); Schnabel v. County of Du Page, 101 Ill. App. 3d
553, 562, 428 N.E.2d 671 (1981); Bernards v. Link, 199 Or.
579, 248 P.2d 341, 263 P.2d 794 (1952). In Faus, the court
held that the grantors, who had conveyed electric railroad
rights of way in the early 1900's, primarily intended to
provide public transportation to serve their adjoining land.
When motor bus transportation replaced the discontinued
electric railroads, the court held that the substituted service
effectuated the grantors' purpose so that the easements
were not destroyed by use for motor bus service. See also
Logan v. Brodrick, 29 Wn. App. 796, 631 P.2d 429 (1981).
The defendants rely heavily upon Faus, and contend that
the proposed change in use of the Kenmore-Woodinville
right of way is consistent with the grantors' intent. They
also claim there will be no substantial variance in the mode
or extent of the use of the easement, and therefore there
will be no greater burden on the servient estate than was
contemplated by the grantors. At least one court has agreed
with the defendants and the trial court here that
abandonment does not occur upon a change from railroad use to
hiking and biking use. State v. Department of Natural
Resources, 329 N.W.2d 543 (Minn.), cert. denied, 463 U.S.
 We disagree. Plaintiffs have alleged that the
grantors conveyed easements for railroad purposes only. In
Zobrist v. Culp, supra, we construed a deed which provided
that a right of way granted to a railroad would revert to the
grantor if the railroad ceased or failed to use the right of
way for the purpose of "running and operating a railroad"
over the right of way for 12 consecutive months. We said
the operation of a railroad is furnishing transportation,
either freight or passenger, to the public. Although
specifically interpreting the deed involved in that case, our
decision in Zobrist provides guidance here; clearly, a hiking and
biking trail is not encompassed within a grant of an
easement for railroad purposes only. In the words of the
Wisconsin State Supreme Court, "[t]o hold that the conversion
from a public transportation system to a recreational
system still reflected the purpose of the original easement
would, in our view, stretch the principle of Faus beyond
reasonable limits." Pollnow v. Department of Natural
Resources, 88 Wis. 2d 350, 366-67, 276 N.W.2d 738 (1979)
(construing common law).
Pollnow and other decisions from other jurisdictions
support our conclusion that a change in use of a railroad
right of way to a recreation trail or nature trail is a change
of use evidencing abandonment of the right of way. See,
e.g., Schnabel v. County of Du Page, supra. In Schnabel,
the court found that one factor indicating the railroad's
abandonment of its right of way was its attempt to convey
the right of way to the County for the purpose of
establishing a prairie path or nature trail. Significantly, the
court stated that no express language of reversion in the grant
was required for the reversionary interest holders to regain
use of the right of way upon abandonment of the railroad.
Schnabel, at 559. The court said that the easement expired
by its own limitation upon abandonment. Schnabel. This
view accords with our decision in Morsbach v. Thurston
Cy., supra (reversion despite absence of express
reversionary clause in grant).
Applying common law principles, we hold that a change
in use from "rails to trails" constitutes abandonment of an
easement which was granted for railroad purposes only. At
common law, therefore, the right of way would automatically
revert to the reversionary interest holders. Roeder Co.
v. Burlington Northern, Inc., 105 Wn.2d 567, 716 P.2d 855
(1986); Morsbach v. Thurston Cy., supra.
Thus, we come to the question of the constitutionality of
RCW 64.04.180 and RCW 64.04.190. In relevant part, these
two statutes, enacted in 1984, authorize a change in public
use of a railroad right of way to a different public use
without payment of compensation to any reversionary interest
holders. The trial court held that these statutes are
RCW 64.04.180 provides:
Plaintiffs claim these statutes authorize unconstitutional
takings of private property for public use without just
compensation to the holders of reversionary interests in land
underlying railroad rights of way. Defendants contend the
statutes merely embody common law. Defendants claim
plaintiffs' reversionary interests are not eliminated by the
statutes, reasoning that if the rights of way are ever free of
public use, plaintiffs will obtain possession of the land.
Finally, defendants contend plaintiffs have no vested rights
in the rights of way, and therefore their reversionary
interests may be affected by legislation. We reject each of these
Railroad properties, including but not limited to
rights-of-way, land held in fee and used for railroad
operations, bridges, tunnels, and other facilities, are
declared to be suitable for public use upon cessation of
railroad operations on the properties. It is in the public
interest of the state of Washington that such properties
retain their character as public utility and transportation
corridors, and that they may be made available for public
uses including highways, other forms of mass transportation,
conservation, energy production or transmission, or
RCW 64.04.190 provides:
(1) Public utility and transportation corridors are railroad
properties (a) on which railroad operations have
ceased; (b) that have been found suitable for public use
by an order of the Interstate Commerce Commission of
the United States; and (c) that have been acquired by
purchase, lease, donation, exchange, or other agreement
by the state, one of its political subdivisions, or a public
(2) A public utility and transportation corridor retains
its public use character as long as it is owned by a public
agency or utility. A public utility and transportation corridor
is not subject to reversion, taking by adverse possession,
or any similar property interests ripening on the
cessation of railroad operations.
As we have discussed, under the common law in this
state these rights of way would automatically revert to the
reversionary interest holders upon abandonment of the
rights of way by the railroad. A statute which expressly
prevents the ripening of the reversionary interests upon
cessation of railroad use, and permits other public uses of
the rights of way, is clearly a departure from common law.
The statutes do not merely embody common law.
Defendants' second contention is somewhat startling.
The argument that the statutes are valid because they do
not "eliminate" plaintiffs' reversionary interests strains
credulity. Without the statutes, the holders of the
reversionary interests would absolutely and automatically obtain
possession of the easements upon railroad abandonment.
Under the statutes, they would not.
We also reject defendants' contention that plaintiffs'
interests may be validly affected by legislation. Defendants
rely principally on Gillis v. King Cy., 42 Wn.2d 373, 255
P.2d 546 (1953). In Gillis, plaintiffs were owners of
property abutting a right of way dedicated for a county road. At
the time of the dedication, a statute provided that if the
road remained unopened for public use for 5 years, it would
be vacated and the land would pass to the abutting
property owners. The road involved was in a platted tract
and remained unopened for 5 years. During that period,
however, the Legislature amended the statute by providing that
it would not apply to a dedicated road in any plat. The
plaintiffs in Gillis argued that the amendment did not
apply to the dedication because the dedication was made
before the amendment was enacted.
This court rejected plaintiffs' argument that the statute
could not constitutionally be applied retroactively. The
court first noted the purpose of the statute was to specify a
certain period of years after which the common law rule of
presumption of abandonment would be given effect. The
court said the right granted by the statute to abutting
property owners was therefore
a mere expectancy, dependent upon the street remaining
unopened for the full five-year period. It was comparable
to the possibility of reverter which exists in the grantor
of a fee simple determinable. The possibility of reverter
is not a vested right, but a mere expectation of property
in the future, and so may be defeated by statute.
Gillis v. King Cy., supra at 377-78.
 Gillis is not dispositive here, although the legal
principles discussed there are pertinent to defendants'
argument. Unquestionably, the Legislature has the power
to enact a retrospective statute, unless the statute
contravenes some constitutional inhibition. State v. Douty,
92 Wn.2d 930, 935, 603 P.2d 373 (1979) (citing Chase Sec.
Corp. v. Donaldson, 325 U.S. 304, 315, 89 L. Ed. 1628, 65 S.
Ct. 1137 (1945)). As set forth in Gillis, a statute may not be
given retroactive effect where the effect would be to
interfere with vested rights. Gillis v. King Cy., supra at 376.
See also In re Marriage of MacDonald, 104 Wn.2d 745, 750, 709
P.2d 1196 (1985); Lynch v. United States, 292 U.S. 571,
576-80, 78 L. Ed. 1434, 54 S. Ct. 840 (1934). Thus, for
example, a statute may not be applied retroactively where
the result would be to impair the obligation of contract, or
to deprive one of property without due process of law.
Gillis v. King Cy., supra at 376. We have said that
[a] vested right, entitled to protection from legislation,
must be something more than a mere expectation
based upon an anticipated continuance of the existing
law; it must have become a title, legal or equitable,
to the present or future enjoyment of property, a
demand, or a legal exemption from a demand by
In re Marriage of MacDonald, supra at 750 (quoting
Godfrey v. State, 84 Wn.2d 959, 963, 530 P.2d 630 (1975)).
Here, unlike the situation in Gillis, plaintiffs have alleged
they hold the reversionary interests in the land underlying
the rights of way, and that easements for railroad purposes
only were granted to the railroad. Under these allegations,
plaintiffs have legal title to the fee underlying the rights of
way, which presently entitles them to the future enjoyment
of the land upon cessation of railroad use. Also, unlike the
situation in Gillis, the interests alleged here were created
by private conveyances and not by legislative grant. Most
importantly, as we discuss below, we conclude these are
valuable property interests entitled to protection under our
constitution's prohibition against takings without payment
of just compensation. For these reasons, we hold the
Legislature cannot defeat by statute the existing interests
Defendants' assertion that plaintiffs hold only possibilities
of reverter does not comport with the allegations here.
As defendants themselves agree, a possibility of reverter
exists where there has been a conveyance of a fee simple
determinable. See T. Bergin & P. Haskell, Preface to
Estates in Land and Future Interests 56-59 (2d ed. 1984).
While we acknowledge some similarity between such a
grant and the grant of a railroad right of way easement, we
decline to hold that all railroad easements are necessarily
fees simple determinable subject to a right of reverter.
 We are also aware that courts and commentators
have concluded that certain future interests are so remote
and speculative that they are not entitled to constitutional
protection under takings and due process provisions. See,
e.g., Cavett v. Peterson, 688 P.2d 52 (Okla. 1984); 2 J.
Sackman, Nichols on Eminent Domain SS 5.05 (3d rev. ed.
1985). While some courts rely upon the real property
distinctions between a vested property interest and a
contingent property interest for determining whether an interest
will be constitutionally protected, at least one commentator
suggests that the true inquiry should be whether a given
future interest is of a sufficiently substantial character to be
given constitutional protection, and depends on factors
other than whether the interest is classified as vested or
contingent. L. Simes & A. Smith, Future Interests SS 136
(2d ed. 1956). See also Hemphill v. State Hwy. Comm'n,
245 Miss. 33, 145 So. 2d 455 (1962). While we recognize
there may be some future interests which may be affected
by legislation without violation of our constitutional
prohibitions, reversionary interests such as those alleged
here are not of that type.
These conclusions lead inevitably to plaintiffs' claim that
the statutes authorize takings in violation of Const. art. 1, SS
16: "No private property shall be taken or damaged for
public or private use without just compensation having
been first made . . . "
What is, or is not, an unlawful taking is a judicial
question. Bowes v. Aberdeen, 58 Wash. 535, 109 P. 369 (1910).
The preliminary question is whether the plaintiffs have any
property interest protected by Const. art. 1, SS 16. State v.
Evans, 96 Wn.2d 119, 126, 634 P.2d 845 (1981); State ex
rel. Horne v. McDonald, 32 Wn.2d 272, 201 P.2d 723
(1949); Tacoma v. Mason Cy. Power Co., 121 Wash. 281,
209 P. 528 (1922). We have repeatedly stated that
"property" encompasses many rights. The word "property" is
used in the constitutional sense in a "comprehensive and
unlimited sense . . . It is not any particular kind of
property that is mentioned, but the wording is, 'no private
property.'" State ex rel. Smith v. Superior Court, 26 Wash.
278, 286, 66 P. 385 (1901). Property in a thing consists in
its ownership and possession, and in the unrestricted right
of use, enjoyment and disposal. Lange v. State, 86 Wn.2d 585,
590, 547 P.2d 282 (1976) (citing Ackerman v. Port of
Seattle, 55 Wn.2d 400, 409, 348 P.2d 664, 77 A.L.R.2d 1344
Several factors persuade us that, upon plaintiffs'
allegations that they hold reversionary interests which entitle
them to possession upon extinguishment of the railroad
easement, plaintiffs have enforceable legal rights in the
disputed property which are protected under the takings
provision of our constitution. Plaintiffs presently own fee
interests underlying the rights of way. Plaintiffs are clearly
ascertainable persons. Cf. L. Simes & A. Smith, Future
Interests SS 136 (2d ed. 1956) ("[w]hen a contingent
remainder is limited to an existing ascertained person there is
no question but that the courts will recognize the interest
as having present existence"). The interests are alienable
and devisable. See Hemphill v. State Hwy. Comm'n, supra
at 44-45. The imminence of abandonment, fostered by the
1984 passage of RCW 64.04.180 and RCW 64.04.190,
indicates that plaintiffs have compensable interests. See 2 J.
Sackman, Nichols on Eminent Domain SS 5.05 (3d rev.
ed. 1985) (if, at time of taking, the event upon which
property is to revert is imminent, and its occurrence within a
reasonably short time probable, the future interest holder is
entitled to compensation); Chew v. Commonwealth, 400 Pa.
307, 161 A.2d 621 (1960). Put simply, abandonment by the
railroad is a necessary predicate to use as a recreation trail.
At the time of abandonment plaintiffs' interests become
possessory. Thus, we hold these reversionary interests are
property protected under Const. art. 1, SS 16.
It therefore follows King County cannot acquire the
Kenmore-Woodinville right of way from Burlington
Northern without payment of just compensation to the
reversionary interest holders. If the County takes this right of
way and commences to build a recreation trail, it does so in
violation of the constitution.
We note that, insofar as the present record reveals,
the County has only acquired, through a quitclaim deed,
whatever interest Burlington Northern held. There is a
strong argument to be made that Burlington Northern had no
interest to convey to the County: upon abandonment of the
right of way the land automatically reverted to the
reversionary interest holders. Be that as it may, we are not
disposed to ignore the constitutional implications of the
County's attempt to acquire the rights of way without
payment of compensation to the reversionary interest holders.
 Although we conclude King County, upon these
allegations, has violated Const. art. 1, SS 16, we do not
find both RCW 64.04.180 and RCW 6
4.04.190 offensive. RCW
64.04.180 merely states the public interest in maintaining
railroad rights of way as public thoroughfares. To the
extent it may be argued this statute is also meant to
suggest that "rails to trails" is a permissible change in
use, we have already rejected that suggestion. We hold RCW
64.04.190 unconstitutional as applied insofar as it purports
to authorize King County to acquire without payment of just
compensation existing reversionary interests which follow
easements for railroad purposes only. It is unnecessary for
us to decide whether the statute can be constitutionally
applied to some more remote and speculative type of
Despite defendants' suggestion that federal law requires
a different result, our decision does not conflict with 49
U.S.C. SS 10906. 49 U.S.C. SS 10906 provides that, when the
ICC determines that abandonment of railroad properties is
appropriate, the ICC is directed to determine whether the
rail properties "are suitable for use for public purposes,
including highways, other forms of mass transportation,
conservation, energy production or transmission, or
recreation." If the ICC finds the properties are suitable for
public purposes, they may be sold, leased, exchanged, or
otherwise disposed of only under conditions provided in the
order of the ICC. The ICC may prohibit any sale of the
railroad properties for not more than 180 days after the
effective date of its order, unless the properties have first
been offered on reasonable terms for sale for public
King County suggests the ICC is required, because of
these provisions, to preserve and reserve the railroad
transportation rights of way for other public uses. King County
states the rights of way here are governed by this act and
Congress has specifically required the rights of way be
made available to King County for other public uses,
including recreation and transportation.
 While section 10906 clearly demonstrates a federal
goal to preserve railroad corridors for public uses, the
statute does not speak to the acquisition of these rights of way
without compensation to any reversionary interest holders.
As the United States Supreme Court has stated, property
interests are determined according to state law. See
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 1003, 81
L. Ed. 2d 815, 104 S. Ct. 2862 (1984). See also Burlington
Northern, Inc. Abandonment Between Fremont & Kenmore,
King Cy., Wash., 342 I.C.C. 446, 453 (1972) (the
review board rejected Seattle's contention that a railroad be
required to donate a right of way for a public purpose; the
court observed that "[f]irst, and foremost, such action, even
if this Commission had the authority to do so, would
constitute a confiscation of private property for a public
purpose without just compensation [and t]his would be a
patently unconstitutional act"). Moreover, at least one
court has found that section 10906 does not preempt state
law regarding abandonment of railroad rights of way. See
McKinley v. Waterloo R.R., 368 N.W.2d 131 (Iowa 1985).
See also Hayfield Northern R.R. v. Chicago & North
Western Transp. Co., 467 U.S. 622, 632, 81 L. Ed. 2d 527,
104 S. Ct. 2610, 2617 (1984).
 Another matter requires our attention. We find it
necessary to address the question whether the Wrights are
proper parties to this action. Absent issues of major public
importance, a "justiciable controversy" must exist before a
court's jurisdiction may be invoked under the Uniform
Declaratory Judgments Act, RCW 7.24.020. DiNino v.
State ex rel. Gorton, 102 Wn.2d 327, 330, 684 P.2d 1297
A "justiciable controversy" is
(1) . . . an actual, present and existing dispute, or
the mature seeds of one, as distinguished from a
possible, dormant, hypothetical, speculative, or
moot disagreement, (2) between parties having
genuine and opposing interests, (3) which involves
interests that must be direct and substantial,
rather than potential, theoretical, abstract or
academic, and (4) a judicial determination of which
will be final and conclusive.
DiNino, at 330-31 (quoting Clallam Cy. Deputy Sheriff's
Guild v. Board of Clallam Cy. Comm'rs, 92 Wn.2d 844, 848,
601 P.2d 943 (1979)). All four of these elements must be
satisfied or the case must be dismissed; otherwise, the court
steps into the prohibited area of advisory opinions. DiNino
v. State ex rel. Gorton, supra at 331.
Nothing in the present record indicates either that
Burlington Northern has abandoned or soon will abandon the
right of way along Lake Sammamish. The Wrights have not
alleged in their complaint that abandonment will occur.
King County explains that while it has previously discussed
acquiring that line for a recreation trail, there is no pending
abandonment application by Burlington Northern, and no
present intent by King County to acquire this right of way.
We therefore conclude there is no actual, present and
existing dispute, nor the mature seeds of one, between the
Wrights and defendants. The Wrights' claim is thus
premature. We therefore dismiss their action. (As a practical
matter, if there is any present dispute between the Wrights
and defendants which this decision does not resolve, we fail
to perceive what it is.)
In light of our disposition of this case, we do not reach
other issues raised by the parties.
We want to make clear that we do not decide here what
interests are held by the respective parties. Our recent
decisions in Roeder Co. v. Burlington Northern, Inc.,
105 Wn.2d 269, 714 P.2d 1170 (1986) and Roeder Co. v.
Burlington Northern, Inc., 105 Wn.2d 567, 716 P.2d 855 (1986)
will doubtless affect the determination of who holds what
interests in the rights of way. We note that even if the
railroad received only easements, it does not necessarily follow
that plaintiffs are the reversionary interest holders. We also
make no determination as to what compensation might be
due should King County ultimately find it necessary to
condemn any part of the rights of way. Our decision here is
confined to the facts as plaintiffs have alleged them.
Finally, we do not wish to leave any impression that a
recreational trail is not a desirable goal. We note the
Legislature has enacted a number of statutes designed to foster
development and maintenance of recreational and bicycle
trails and paths. See RCW 47.30; RCW 35.75.060; RCW
35.77.010, .015; RCW 36.75.240; RCW
36.81.121, .122. It is
necessary, however, that a public entity proceed in a
constitutional fashion in acquiring the way necessary for such
Reversed. Remanded for further proceedings not
BRACHTENBACH, DORE, ANDERSEN, CALLOW, GOODLOE, and
DURHAM, JJ., concur.
PEARSON, J. (concurring in part, dissenting in part)-I
concur with the majority's decision to reverse and remand
this action. However, I disagree with the majority's holding
that an easement "for railroad purposes" does not, as a
matter of law, include a hiking and biking trail or other
arguably "recreational" use. I believe that any discussion of
what is intended by "railroad purposes" is premature in
This case entails the interpretation of a grant of an
interest in land which, for purposes of the defendants' CR
12(b)(6) motion, is considered an easement. The scope of
an easement is controlled by the intent of the parties at the
creation of the easement. Brown v. Voss, 105 Wn.2d 366,
371, 715 P.2d 514 (1986); Zobrist v. Culp, 95 Wn.2d 556,
560, 627 P.2d 1308 (1981); Logan v. Brodrick, 29 Wn. App. 796,
631 P.2d 429 (1981). Regardless of what general rules
might apply to easements for railroads, a court must always
look to the particular language of the deed in question to
determine intent. State v. Department of Natural
Resources, 329 N.W.2d 543, 546 (Minn.), cert. denied, 463
U.S. 1209 (1983). When the deed is ambiguous on the
question of intent, the court then may look to extrinsic
evidence of the circumstances surrounding the conveyance.
Roeder Co. v. Burlington Northern, Inc., 105 Wn.2d 269,
273-74, 714 P.2d 1170 (1986). When extrinsic evidence is
considered, the interpretation of the conveyance becomes a
mixed question of fact and law; the question of intent,
however, is a factual one. Roeder Co. v. Burlington
Northern, Inc., 105 Wn.2d 567, 571-72, 716 P.2d 855 (1986).
The deeds at issue here are ambiguous on the question of
intent. The deeds themselves do not mention "railroad
purposes" but speak instead of "benefits and advantages"
accruing to the grantors. Clerk's Papers, at 69-70. What
these "benefits and advantages" are is not unambiguously
evident from the face of the conveying instruments. Thus,
identifying the benefits and advantages and deciding
whether they could reasonably ensue from the use of the
easement as a hiking and biking trail or recreational use is
a factual determination to be made by the trial court.
This case came before the Supreme Court on appeal of a
CR 12 (b) (6) dismissal of the plaintiffs' claims. Arguably the
12(b)(6) motion was converted into a motion for summary
judgment when the trial court considered matters outside
the pleadings. See CR 12(c). In any event, the defendants
in their 12(b)(6) motion have not conceded that the
conveyances were intended as easements for railroad purposes
nor has the trial court made findings in that regard.
Because the parties clearly dispute the nature and extent of
the interest conveyed-a dispute that is partly factual-the
case belongs in trial.
The trial court's inquiry should follow basic principles of
deed interpretation. If the conveyances are found to be
easements, the court should consider not only the specific
intentions of the original parties to the grant, but also "the
nature and situation of the properties subject to the
easement, and the manner in which the easement has been used
and occupied." (Citation omitted.) Logan v. Brodrick,
supra at 799. When an easement is intended for a specific
use or purpose, an invalid use or purpose will violate the
easement, even when the new use or purpose creates no
additional burden on the servient estate. See Brown v.
Voss, supra at 372.
The fact that the original parties' intent circumscribes
the scope of an easement does not mean that any variation
from the original use and burden violates the easement.
The law assumes parties to an easement contemplated a
normal development under conditions which may be different
from those existing at the time of the grant. Normal
changes in the manner of use and resulting needs
will not, without adequate showing, constitute an unreasonable
deviation from the original grant of the easement.
(Citations omitted.) Logan, at 800; see also Natural
Resources, at 547 (easements are not limited to particular
methods of use in vogue at time of conveyance); 25 Am.
Jur. 2d Easements and Licenses SSSS 74, 77 (1966) (when
easements are in general terms without limitations, grantee
or grantee's successors in interest are permitted "unlimited
reasonable use"). Cf. 5 Restatement of Property SS 484
(1944) ("In ascertaining, in the case of an easement
appurtenant created by conveyance, whether additional or
different uses of the servient tenement required by changes
in the character of the use of the dominant tenement are
permitted, the interpreter is warranted in assuming that the
parties to the conveyance contemplated a normal
development of the use of the dominant tenement."). The
reasonable use of an easement is a factual determination. 25 Am.
Jur. 2d supra, SS 74.
An easement for a railroad, then, may in some cases
allow for a change in the type of vehicle used or the
frequency of use. See Natural Resources, at 546-47; 25 Am.
Jur. 2d, supra, SS 74. At the same time, however, "[a]
principle which underlies the use of all easements is that
the owner of the easement cannot materially increase the
burden of the servient estate or impose thereon a new and
additional burden." 25 Am. Jur. 2d, supra, SS 72. One could
assume the grantor would never have made the conveyance
if the burden on the servient estate would have been too
great. Arguably, an easement "for railroad purposes" could
be abused by a volume or frequency even of railroad traffic
when that traffic is far in excess of the grantor's reasonable
In sum, the task before the trial court is to ascertain
the original parties' intent with respect to the burdens
they assumed and the "benefits and advantages" they
anticipated. The court must look not only at the
circumstances existing at the time of the grant but also at the
circumstances the parties reasonably expected would develop. If
the deeds are construed as requiring a particular purpose or
use, the court must ascertain the natural development of
that purpose or use. If the court finds that current or
prospective purpose or use follows the natural and reasonable
development of the estate, the court then must satisfy itself
that the resulting burden on the servient estate is not
materially increased. In making these factual determinations,
the court should consider the nature and situation of
the properties in question and the nature of the original
and changed uses. See Logan, at 799; see also 25 Am. Jur.
2d, supra, SS 74.
UTTER, J. (dissenting)-The majority errs when it
concludes that cessation of the particular use of an easement
constitutes abandonment with the right to possession
reverting "to the original landowner or to that landowner's
successor in interest." Majority, at 450. This is not and
should not be the law in Washington. There are compelling
policy reasons consistent with our past cases for treating
railroad easements more, rather than less, liberally than
other easements. For these reasons, I would look beyond
the language to the purpose of the deed.
In analogous situations, the law has recognized that
changes in the use of an easement do not necessarily take
the enjoyment of the easement beyond its originally
intended scope. We have long recognized the paramount
importance of determining the "general purposes" for
which an easement was granted. Evich v. Kovacevich,
33 Wn.2d 151, 160, 204 P.2d 839 (1949). Parties to a private
easement are presumed to have considered "a normal
development under conditions which may be different from
those existing at the time of the grant." Logan v. Brodrick,
29 Wn. App. 796, 800, 631 P.2d 429 (1981). To determine
that "normal development" we consider the parties'
intentions at the original creation of the easement, the nature
and situation of the servient estates, and the history of the
easement's use. Logan, 29 Wn. App. at 799 (citing Evich,
33 Wn.2d at 157).
By focusing only on the alleged language of the deed, a
right of way for railroad purposes only, the majority too
hastily confers a windfall on the abutting property owners.
It is not disputed that the railroad could transfer its rights
to another railroad which, in turn, could markedly increase
the traffic over the servient estates. The legitimate burden
presented by frequent, loud, and even dangerous, railroad
use far outstrips any burden presented by foot or bicycle
While the burden on the servient estates, represented by
the city's and county's plans, is far less onerous, the
purpose for the easement remains unchanged. Referring to our
decision in Zobrist v. Culp, 95 Wn.2d 556, 627 P.2d 1308
(1981), the majority rightly observes, "[w]e said the
operation of a railroad is furnishing transportation, either freight
or passenger, to the public." Majority, at 451. Contrary to
the majority, however, I do not believe a hiking and biking
trail "clearly" falls outside such a purpose, constituting
abandonment of the easement.
In concluding that the railroad has abandoned its
easement, the majority confuses a change in the kind of
transportation medium using the easement with a change in the
purpose for the transportation. Rail, foot, and bicycle
traffic do represent different transportation media; that is,
they represent different methods of transferring or conveying
items or persons from one place to another. See Webster's
Third New International Dictionary 2430 (1976). It cannot
be disputed that all three media represent forms of
transportation. A closer look at the various purposes giving rise
to the need for transportation suggests that the differences
between these various transportation forms are even less
As a "public highway, created for public purposes",
majority, at 449 (citing Puget Sound Elec. Ry. v. Railroad
Comm'n, 65 Wash. 75, 117 P. 739 (1911)), railroads have
been used to haul freight and transport travelers bent on
business or social purposes. Those purposes were often
realized in the course of transit, as well as after passengers
debarked. The meeting in the club car, the vacation spent
sightseeing from a Domeliner, as well as local tourist and
commuter trains evidence the diversity of legitimate
"transportation purposes." Analogously, while many might
travel the proposed trails for recreation purposes, others
will use the right of way to commute to work, thus easing
pressure on our other severely pressed transportation
My point in this comparison is to underscore the
insignificance of the difference in transportation media. Just as
with a railroad line, the maintenance of a trail is to furnish
transportation. In broad terms, the variety of purposes
individuals may have for seeking transportation remains
relatively constant regardless of the medium chosen. While
the mix of purposes may change in time, that is consistent
with the evolution of society and the related use of the
In short, I believe the majority mischaracterizes the
nature of the change it maintains justifies this reversion to
the abutting owners. This is not, as the majority asserts, a
conversion "from a public transportation system to a
recreational system . . ." Majority, at 451 (quoting Pollnow v.
Department of Natural Resources, 88 Wis. 2d 350, 366-67,
276 N.W.2d 738 (1979)). The municipal bodies wish to
preserve a public transportation system that uses a less
burdensome mode of travel than is presently allowed. That the
mix of human purposes, but not the purposes themselves,
has changed, is not enough to justify declaring the
easement abandoned and providing a windfall to the current
I agree with the Supreme Court of Minnesota, see Slate
v. Department of Natural Resources, 329 N.W.2d 543
(Minn.), cert. denied, 463 U.S. 1209 (1983), that
long-recognized public interest in railroads as public highways,
see Puget Sound Elec. Ry., 65 Wash. at 83-84, justifies
protecting those rights of way for public transportation use.
Like their close cousins, easements in gross, see Note, The
Easement in Gross Revisited: Transferability and Divisibility
Since 1945, 39 Vand. L. Rev. 109 (1986), these rights
of way continue to play an important commercial and social
role in linking various parts of the local community. These
common policy concerns underline the well recognized need
to treat more uniformly,the various servitudes that have
arisen in the long development of our property law. See,
e.g., Reichman, Toward a Unified Concept of Servitudes,
55 S. Cal. L. Rev. 1177 (1982) (Symposium on the Law of
For the above reasons I dissent.