Appeal from a judgment of the superior court for
Thurston county, Wright, J., entered December 10,
1928, upon the verdict of a jury rendered in favor of
the plaintiffs, in an action for trespass. Affirmed.
The Attorney General, L. B. Donley, Assistant,
W. J. Milroy and Leonard E. Top, for appellant.
P. C. Kibbe, for respondent.
HOLCOMB, J. - In this action, respondents allege that
they are the owners of certain lands in Thurston
county, and that traversing a part of the land is an
old abandoned grade where the Northern Pacific railway
formerly was located; that appellant, by its
agents and employees, has entered upon the lands in
question and has started work constructing a county
road upon the old abandoned grade of the railway. It
is alleged that the rights of the railway company to
the land in question were only as set forth in a certain
deed, and that the effect of that deed is such that the
title to the land is in respondents. Damages are asked
and a decree of the court restraining further trespass.
The deed to the Northern Pacific Railroad Company
is set out in the complaint. Appellant demurred to
the complaint, which demurrer was overruled, and appellant
then answered setting up the same deed as that
alleged and relied upon by respondents, and alleging
more in detail that, from the date of the deed until
about 1910, the Northern Pacific Railroad Company
and its successor used and maintained a right of way
as set forth in the deed; ran its trains over that right
of way; and that, about 1910, the railway company
bought a certain other right of way near the site of the
right of way conveyed in the above deed and proceeded
to build a new line of tracks, fences and telegraph
lines on the new right of way; that in 1913, the
Northern Pacific Railway Company, having moved its
tracks and equipment to its new location, by quitclaim
deed conveyed the old right of way to the state of
Washington, which deed was duly recorded, and thereafter
the state of Washington granted an easement to
Thurston county for the purpose of building a county
road over the property, which easement was duly recorded.
The cause was tried to a jury after the court had
ruled that the demurrer to the complaint should be
overruled and holding, as a matter of law, that the
title to the land in suit was in respondents. Judgment
was thereafter entered in favor of respondents, adjudging
them to be the owners of the railroad grade in
suit, restraining a certain private road thereon, and
adjudging that respondents recover from appellant
damages in the sum of $250 as awarded by the jury.
The assignments of error are that the court erred
in overruling the demurrer; in holding that respondents
are the owners of the property described in the
pleadings; and in entering judgment in favor of respondents
and against appellant.
[1, 2] Respondents opened their brief with motions
to strike the statement of facts because it contains one
hundred seventy-three pages and no abstract was
made, served and filed, as required by Rem. Comp.
Stat., SS 1730-1, and the rules of this court.
No abstract was made, served and filed, as so required,
and the statement of facts is therefore stricken,
and will be disregarded. It does not follow, however,
that the appeal should be dismissed. On the contrary,
the striking of the statement of facts is not
jurisdictional as to the appeal, and the appeal cannot be
All errors claimed by appellant are grounded upon
the record proper. The motion to dismiss is therefore
 The deed in suit reads:
"Know all men by these presents, that Edward
Kratz of Thurston county, Washington territory, in
consideration of two hundred dollars ($200) paid by
the Northern Pacific Railroad Company and other
good and valuable considerations, the receipt whereof
is hereby acknowledged, do by these presents give,
grant, bargain, sell and convey unto said Northern
Pacific Company, or its assigns the following described
premises, viz: the right-of-way for the construction
of said company's railroad in and over the
south half of the northeast quarter of section twenty-two
and the west half of the northwest quarter of section
twenty-three of township fifteen north of range
two west, situate in Thurston county, Washington territory,
and the construction of certain canals, whereby
the channel of Skookumchuck is changed and prevented
from infringing upon said railroad including
the land necessary for said roads and canals, hereby
acknowledging satisfaction in full for all damages
All the contentions and the entire argument of appellant
are based upon the proposition that the deed in
question conveys the fee, and not an easement.
"To have and to hold the general premises with the
privileges and appurtenances thereto belonging to the
Northern Pacific Railroad Company its successors and
assigns to their use and behoof forever. And the said
Edward Kratz for himself and his heirs, executors and
administrators does covenant with said Northern Pacific
Railroad Company its successors and assigns that
he is lawfully seized of the aforesaid premises, and
that they are free from all incumbrances, that he has
good right to sell and convey same to said Northern
Pacific Railroad Company as aforesaid and that he
will and his heirs, executors, and administrators will
warrant and defend the same to the Northern Pacific
Railroad Company its successors and assigns forever
against the lawful claims and demands of all persons.
"In witness whereof I have hereunto set my hand
and seal this 12th day of November in the year of our
Lord Eighteen Hundred and Seventy-two.
"EDWARD KRATZ (Seal)"
One is struck at once by the very incomplete and
insufficient description contained in the deed as to the
property conveyed. In fact, appellant suggests at one
point in its brief that the effect of the deed, were it
not for the words "right-of-way for the construction
of said company's railroad," would be to transfer in
fee simple all of the legal subdivisions mentioned in
the deed; in other words, two eighty-acre tracts of
land, in place of a mere right of way for a railroad.
Such, manifestly, was not the intent of the parties.
Appellant grants that it is elementary that, in cases
where the granting clause of a deed declares the purpose
of a grant to be a right of way for a railroad, the
deed passes an easement only, not a fee, though it be
in the usual form of a full warranty deed. 1 Thompson
on Real Property, SS 421.
Appellant then quotes, as the granting clause of
this deed, as follows:
". . . do by these presents give, grant, bargain,
sell and convey unto said Northern Pacific Company,
or its assigns, the following described premises, viz:
. . ."
Appellant then assumes that, the above being the
granting clause, the remainder of the first part of the
deed is merely a description of the property conveyed,
that is, the right of way for the construction of the
company's railroad in and over the land described.
But the appellant delimits the supposed granting
clause too much. The granting clause must also include
the property conveyed, so that it may be identified.
The property conveyed in the above granting
". . . the right-of-way for the construction of
said company's railroad in and over the south half of
the northeast quarter of section twenty-two and the
west half of the northwest quarter of section twenty-three
of township fifteen, north of range two west,
situate in Thurston county, Washington territory . . ."
Cases are cited by counsel, as bearing upon this
question, which have little or no bearing upon the
matter. Respondent cites several of our eases which have
no application whatever to the sort of case we have
Biles v. Tacoma, Olympia & G. H. R. Co., 5 Wash. 509,
32 Pac. 211, was a ease where one railroad company
had conveyed to another, reserving and excepting
a strip of land of specified width to be used for a right
of way for railroad purposes; and we held that the
reservation was of a right of way creating nothing
more than an easement, and a deed in fee to the premises
would convey the entire property subject to such
Respondents also cite Golden v. Pilchuck, 75 Wash. 66.
No such case is to be found. There is a case entitled
Golden v. Pilchuck Tribe No. 42, I. O. R. M., 71 Wash. 581,
129 Pac. 93, and on rehearing in 76 Wash. 66,
135 Pac. 819, which has nothing in aid of their
Another case, Studebaker v. Beek, 83 Wash. 260, 145
Pac. 225, was a case involving an instrument reserving
and excepting a strip of land as having been conveyed
theretofore to a railroad company for a right of way.
It was found that the instrument was ambiguous and
required the court, in determining the matter, to look
into the surrounding circumstances, upon which examination
it was held that only an easement was granted.
Pacific Iron Works v. Bryant Lumber & Shingle
Mill Co., 60 Wash. 502, 111 Pac. 578, cited and relied
upon by respondents, involved a right of way deed
wherein the grantors conveyed a strip of land one
hundred feet in width for railway purposes, and contained a reverter clause that, if it should cease to be
used for a railway, the premises should revert to the
grantors, their heirs, administrators, executors or
assigns. It is true that the habendum clause in that deed
was to the effect that the grantee should have and hold
the premises and appurtenances to it, its successors
and assigns forever; and the court adverted thereto,
saying that, although such words were in the deed,
it did not have the effect of creating a grant in fee
simple, because plainly the instrument, construed as
a whole and in the light of the purpose for which it
was made, was a grant of a right of way or easement
and nothing else.
In the instrument before us, there is no reverter
clause and no clause reserving the right of re-entry, if
and when the right of way should be abandoned for
Appellant is no more successful in bringing to our
attention apt cases upon just such an instrument as
that in suit than respondents.
Had the instrument ended with the grant of the right
of way across the legal subdivisions described and the
adoption thereof by the grantee, as must be presumed,
and the occupation of the granted premises, there
could be no doubt that it was intended to convey simply
the right of way and easement in the land itself. The
doubt arises when we consider the second clause of
the deed comprising the habendum and the covenants.
It will be observed that the granting clause creates
a right of way without any specific width or length,
except that the length is undoubtedly limited by the lines
of the legal subdivisions in which it was situated. The
deed might have been voidable at one time for indefiniteness
and uncertainty, but for the principle of law
that a deed will not be declared void for uncertainty
when the light which contemporaneous facts and circumstances
furnish, would render the description definite
Courts generally recognize that the words "right of
way" have a twofold meaning. They are sometimes
used to describe 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. Joy
v. St. Louis, 138 U. S. 1; New Mexico v. United States
Trust Co., 172 U. S. 171; Maysville & B. S. R. Co. v.
Ball, 108 Ky. 241, 56 S. W. 188; Abercrombie v. Simmons,
71 Kan. 538, 81 Pac. 208, 6 Ann. Cas. 239.
Many of the courts say that the nature of the right
of way purchased or condemned by a railroad company
is more than a mere easement. It has been designated
as a qualified or determinable fee, although it is not
very important what it is called. It is taken for a
specific purpose to be held so long as devoted to that
purpose. A railroad right of way is a very substantial
thing. It is more than a mere right of passage. It is
more than an easement. Abercrombie v. Simmons,
supra, citing Western Union Tel. Co. v. Pennsylvania
R. Co., 195 U. S. 540.
In the Abercrombie case, above cited, it was held
that, whatever its name, the interest taken was for the
use of the right of way, was limited to that use and
must revert when the use is abandoned. In that case,
the instrument was one in the form of a general warranty
describing a right of way of specific width which
the grantee afterwards abandoned. The case also contains
an exhaustive discussion of the cases generally
bearing upon the question of such grants. It is followed
by a case note in 6 Ann. Cas., p. 239, supra, among
others, citing many cases to the effect that, where a
railroad has taken a conveyance expressly granting a
right of way, it will be held to have taken an easement
merely, and that a grant of a strip of land to a railroad
company "for right of way and for operating its railroad
only," conveyed merely an easement.
In a rather similar case, Lockwood v. Ohio River R.
Co., 103 Fed. 243, the granting clause in the instrument
"'. . . grants and conveys to the railway company
the full and free right of way, of the width of 50
feet, with necessary grounds for cuts and fills for the
road of said company in, upon and through the lands
of Pugh,' upon the line surveyed by the engineer of
the company, 'which right of way is hereby granted
and conveyed for the construction, building, and use
of the road of the said company.'"
In passing upon the case, among other things, it was
"It would not be fair to assume that, under the guise
of procuring simply a right of way, the railway company
intended by the use of these words to take a
conveyance in fee simple. The words of the covenant,
if separated from the rest of the agreement, are very
broad, but they ought not to be taken in their broadest
import if they are equally appropriate in the sense
limited to the object the parties had in view and their
apparent intentions as deduced from the whole instrument;
It was held in the above cited case that it was the
intention of the grantor to convey only a right of way;
that the railway company therefore took only an easement
in the land, and not the land itself; that the covenant
could not be construed to enlarge the grant;
and that the railway company was not entitled, by
virtue thereof, to anything more than an incorporeal
. . . The granting clause of this instrument
conveys only a right of way, which is a mere
easement, the owner of the soil retaining his exclusive
right in all mines, timber and earth for every purpose
not incompatible with the use for which it is granted;
. . ."
"However broad and comprehensive the covenants
in a conveyance may be, they are to be construed as
securing to the grantee only the estate actually limited
to him by the conveyance. Their office being merely
to assure and defend that which has been granted, they
are only co-extensive with the grant, and can have no
wider scope and effect than the conveyance to which
they are annexed. 'In construing and applying covenants,
they are intended not to enlarge, but to defend
the grantee of the estate granted in the deed, so that,
if the grant be of less than a fee, a covenant to warrant
it to the grantee and his heirs does not enlarge the
estate to a fee.' 3 Washb. Real Prop. 448."
"'A fee simple may be had in incorporeal as well
as corporeal hereditaments.' 1 Washb. Real Prop.
82. 'Where 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,
though it be in the usual form of a full warranty deed.'
Jones, Easem. p. 212. Covenants do not of themselves
pass any estate, or enlarge or restrict the estate
The above case was before the United States supreme
court on petition for certiorari in 180 U. S. 637,
where certiorari was denied.
A similar case upon a grant very much like the one
referred to in the last cited case, was decided by the
supreme court of West Virginia in Uhl v. Ohio River
R. Co., 51 W. Va. 106, 41 S. E. 340. The granting
clauses and covenants were very nearly identical. The
railroad company in that case contended that the instrument
granted it an absolute fee simple estate in
the corpus, or body of the soil, of a fifty-foot strip
carrying with it all rights above and below. The opinion
reviews and discusses many cases involving grants
of rights of way and easements in a very instructive
way. In the course of the opinion, it was said:
"The agreement in this case does not grant land in
its granting clause, but only right of way . . .
Where the granting clause declares the purpose of the
grant to be a right of way for a railroad, the deed
passes an easement only, though it be in the usual form
of warranty deed." (Citing texts and cases.)
It was there observed that the construction of a deed
must be made upon the entire instrument, and the intention
of the grantor, as derived from the deed itself,
should be sought and, if discovered, should be carried
into effect where it can be done consistently with rules
of law. It was held in that case that the grant of the
right of way was not for a fee simple absolute estate,
but a limited or determinable fee simple, which did not
convey the title to the property beneath the surface
to the grantee.
In Jones v. Van Bochove, 103 Mich. 98, 61 N. E. 342,
the court recited the granting clause as follows:
"All that certain piece or parcel of land situated
. . . and described as follows, to wit: The right of
way for a railroad, running from the marl bed of said
cement company to their works, on the west side of
Kalamazoo river, and described as follows: 'A strip
of land forty feet wide; . . . and being nine hundred
fifty-two feet in length.'"
The court also said that the deed was in the usual
form of a full covenant warranty. That right of way
was later abandoned by the grantee for use for railway
purposes, the rails and ties removed and the
fences taken away.
Some of the cases and texts were reviewed in the
last cited case, and it was held that the instrument in
question, although the form of a full warranty deed,
conveyed an easement only, and not a fee.
In Cincinnati, H. & D. R. Co. v. Wachter, 70 Ohio
113, 70 N. E. 974, the grant involved was of a right of
way, one hundred feet in width, across a tract of land
containing twenty acres or more, together with a
waiver of all further damages that might arise by
reason of the location or construction of the railroad
or repairing thereof when finally established or completed.
There was no reservation of any kind in the
instrument. The right of way was adopted, the road
completed in 1854, and used continuously for the
operation of railroad passenger and freight trains. The
court there said:
"The right of way of the company is an easement.
Washb. on E. & S. 4. It is, using exact language, a
servitude imposed as a burden on the land. The conveyance
from Crane in terms specifies that it is a
'release of a right of way,' and no question is made,
and we presume none can be, that the right thus
granted is not different from, nor greater than, that
which would result from an appropriation proceeding
under the statute. "
It was held in that case that an easement, and not
a fee simple estate, was granted.
A case strongly relied upon by appellant is Killgore
v. Cabell County Court, 80 W. Va. 283, 92 S. E. 562,
L. R. A. 1918B, 692.
The granting clause in that case was recited by the
court as follows:
"Witnesseth: That the said parties of the first part
in consideration of the sum of $600 in hand paid and
for the further consideration of the advantages and
benefits which will inure to them by reason of the
construction of said railroad, do grant to the said
Chesapeake & Ohio Railroad Company, for the construction
of a double track of railway, through certain section
of land through the land owned by them situated in
Cabell county, containing about 197 acres, bounded,
etc. . . ."
It was contended in that case, on the one hand, that
the grant was an easement only, and, on the other hand,
that it was a fee simple. It was also contended that the
case was governed by the decision of the same court in
Uhl v. Ohio River R. Co., cited by us, supra. The court
distinguished the last cited case from the Uhl case,
supra, saying that in the Uhl case:
". . . the deed of conveyance to the railway company
granted by express terms a right of way for its
railroad over the lands of the grantor. In this case the
deed grants the land described therein, and recites the
purpose for which it is to be used by the railway company.
In the Uhl case the question for decision by the
court was whether or not the grant of a right of way
was the grant of an easement or was the grant of the
land itself. It turned upon what meaning was to be
given the words 'right of way' used in the granting
clause of the deed, and the court came to the conclusion
that taking into consideration the fact that the grantee
was a railroad company, and that it needed this land
only for the purpose of constructing its railroad
thereon, and the further consideration that the deed itself
only granted the right of way over the land, its effect
was only to vest in the railway company an easement,
and not to grant the land itself."
It is to be noted that, in the last cited case before that
court, quite a tract of land was conveyed in the
instrument, to wit, about one hundred ninety-seven acres. It
could be presumed that no such amount of land was
necessary or intended for strictly railway right of way
purposes. Since railways have, in the absence of restrictive
statutes, the right to acquire real estate for
any purpose whatever, as they apparently had in that
state, we think that court properly decided that that
conveyance granted a full fee simple title. We see
little resemblance between that case and the case before
See case notes to Norton v. Duluth Transfer R. Co.,
129 Minn. 126, 151 N. W. 907, Ann. Cas. 1916E, 760,
A noted text writer states the law as follows:
"A grant of a right of way to a railroad company is
the grant of an easement merely, and the fee remains
in the grantor. The mere fact that the railroad company's
charter empowered it to acquire a greater
estate than that which it contracted for has been held
not to affect its rights in the land purchased. But
statutes authorizing railroad companies to acquire the fee
in land have been generally given effect. It is held that
a deed conveying land to a railroad for a right of way
gives the railroad no more rights than it would have
acquired by condemnation. 'The easement is not that
spoken of in the old law books, but is peculiar to the
use of a railroad which is usually a permanent improvement,
a perpetual highway of travel and commerce,
and will rarely be abandoned by nonuser. The
exclusive use of the surface is acquired, and damages
are assessed, on the theory that the easement will be
perpetual; so that, ordinarily, the fee is of little or no
value unless the land is underlaid by quarry or mine.'
Where the intention to convey a fee does not appear,
as in case of the conveyance of a 'right of way' for
the railroad through certain lands, the company takes
an easement only. The fact that the right conveyed
is designated as a fee, or that the deed contains
covenants of warranty, does not necessarily pass the fee."
We believe it to be mutually conceded that there is
not now, and was not during the territorial existence,
any legislation prohibiting railroad companies from
acquiring lands for any purposes in fee simple.
1 Thompson on Real Property, SS 4:20.
But if the railroad company in this instance acquired
these lands in fee simple, it acquired, as suggested
by appellant, the whole of the legal subdivisions
described in the deed.
Since, manifestly, that was not the intention of any
of the parties and the deed was for a right of way, we
will construe the deed, as the parties evidently intended,
as a grant of right of way only, title to which
ceased when the railway company abandoned it as a
right of way.
The title is therefore in respondents, as the trial
The decree is affirmed.
TOLMAN, BEALS, and MILLARD, JJ., concur.
FULLERTON, J., concurs in the result.
1. Reported in 278 Pac. 686.