[Nos. 51136-5, 51196-9. En Banc. March 27, 1986.]
The Roeder Company, Respondent,
Burlington Northern, Inc., Defendant, Clarence Harper, ET AL, Appellants.
The Roeder Company, Respondent,
Howard Burton Porter, ET AL, Appellants.
Nature of Action: Separate actions to quiet title to two
abandoned railroad rights of way. The common plaintiff in
each case was the successor in interest to the grantor of the
rights of way. The defendants owned land abutting the
rights of way.
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are two versions of Roeder v. BNSF (1986) on this website. This version is unedited. A second version has added emphasis to highlight the meaning of the words "right-of-way" in a railroad deed.
View Roeder v. BNSF (1986) with emphasis given to the meaning of the words "right-of-way" in railroad deeds.
Superior Court: The Superior Court for Whatcom
County, Nos. 83-2-00965-7, 82-2-01180-7, Marshall
Forrest, J., on November 19 and 7, 1984, quieted title in the
Supreme Court: Holding that the original deed to the
railroad conveyed an easement rather than a fee, that a
"catchall" provision in a deed to the plaintiff's predecessor
in interest was valid, and that the defendants did not take
title to the center of the rights of way when they were
abandoned by the railroad, the court affirms the judgments.
Raymond L. Davis, for appellants Harper, et al.
Robert Burks and Sam Peach, for appellants Porter, et
Davis, Wright, Todd, Riese & Jones and Douglas C.
Ross, for respondent.
FACTS OF CASE
At issue in this case is whether title to abandoned
railroad rights of way in the Bellingham area should be quieted
in the successor of the original grantor of the rights of way
or in the owners of the property abutting the rights of way.
This case concerns two of the seven lawsuits brought by
the Roeder Company to quiet title to abandoned railroad
rights of way. /1 These suits involved seven separate deeds
by a common grantor, Bellingham Bay Improvement
Company (the Improvement Company) to various railroads
between 1890 and 1914. We granted direct review of two of
the seven cases, referred to herein as Porter and Harper,
and consolidated them on appeal. The conveyances at issue
in each case are described below.
THE PORTER CASE
The Porter appellants claim ownership of a 50-foot right
of way based on a series of conveyances beginning in 1914.
In a deed recorded on September 4, 1914, the Improvement
Company by statutory warranty deed conveyed a 50-foot-wide
strip of property to the Bellingham and Northern
Railway (Bellingham Northern). The granting clause
of the deed states that the Improvement Company, in
consideration of ten dollars, "conveys and warrants unto
Bellingham and Northern Railway Company . . . for all railroad
and other right of way purposes, certain tracts and parcels
of land situate in the City of Bellingham . . . " The deed
proceeds to describe parcel (a) (title to which is not at issue
here) and parcel (b), which is the railroad right of way in
Bellingham Northern subsequently conveyed its interest
in the right of way to the Chicago, Milwaukee, St. Paul &
Pacific Railroad (the Milwaukee Road). The Milwaukee
Road ceased operations over this property sometime before
January 1, 1976, and conveyed portions of the right of
way by separate quitclaim deeds to appellants Porter,
Davidson, Brandt and Bellingham Cold Storage Development
Company (hereinafter collectively referred to as Porter).
In addition to the quitclaim deeds, Porter owns fee title
to property adjoining the abandoned right of way which
was acquired from the Improvement Company or its
successors. The deeds conveying these adjoining parcels
either contain metes and bounds descriptions of the land
conveyed or mention the railroad right of way as a boundary.
Porter claims title to the right of way both by virtue of
the quitclaim deeds and its abutting landowner status.
Roeder's claim to the abandoned right of way arises
from a series of conveyances made in connection with
the Improvement Company's dissolution. These conveyances
were made beginning on December 18, 1933, when the
Improvement Company granted to Bellingham Securities
Syndicate, Inc. (Bellingham Securities) certain land
located in Whatcom County. The deed describes a number
of parcels of land with specificity, then adds:
together with any and all other real property of every
kind and nature and wheresoever situate, in which the
first party has at this time or may hereafter acquire any
Roeder argues that this "catchall" clause conveyed the
railroad right of way to its predecessor, Bellingham
Securities. Subsequent deeds with similar clauses then conveyed
Bellingham Securities' interest in the right of way to Roeder.
Roeder filed a quiet title action against Porter on
January 20, 1984. Following a bench trial, the trial court
held that the 1914 deed from the Improvement Company to
Bellingham Northern conveyed an easement, not a fee, and
that the Improvement Company thus retained a fee simple
interest in the right of way property. The trial court also
held that Roeder succeeded to the Improvement Company's
fee interest through the catchall clauses which were
adequate to convey the fee in the right of way from the
Improvement Company to Bellingham Securities and on to
Roeder. Finally, the trial court concluded that Porter's
ownership of property adjoining the right of way gave it
no interest in the abandoned right of way. The court then
quieted title to the 50-foot right of way in Roeder.
THE HARPER CASE
On October 1, 1899, the Improvement Company
conveyed to the Bellingham Bay & British Columbia Railroad
(the B. C. Railroad) a railroad easement over a 30-foot-wide
strip of land in Bellingham. Roeder claims title to this
right of way through the same chain of title related above.
Appellants Harper and Davis claim an interest in the
right of way based on their ownership of abutting property.
Harper's predecessor obtained land abutting the right of
way by a 1904 deed that described the Harper property as
"lying Southeast of the right-of-way of the Bellingham Bay
and Eastern Railroad Company . . . [and] being bounded
. . .by the Southeast line of the right-of-way of the
Bellingham Bay and Eastern Railroad Company . . ." The
Davises' claim is based solely on their ownership of
abutting property. Neither the location of the Davises' property
nor the deeds through which they acquired their property
are included in the record before us.
Roeder filed suit against the appellants Harper and Davis
on October 4, 1983. The trial court ruled that neither
Harper nor Davis acquired any interest in the right of way
by virtue of their status as adjoining property owners and
quieted title to the 30-foot right of way in Roeder.
This appeal presents three issues.
ISSUE ONE. Did the Improvement Company convey an
easement or fee simple title to Bellingham Northern?
ISSUE TWO. Is a "catchall" description of a grantor's land
in a deed legally sufficient to convey title to that land?
ISSUE THREE. Do abutting property owners become
owners to the center line of a railroad right of way when the
right of way is abandoned?
CONCLUSION. Since the granting clause of the
Improvement Company's deed declares the purpose of the grant
to be a right of way for a railroad, the deed passes an
easement, not a fee.
The conveyance of a right of way to a railroad may be in
fee simple or only an easement. /2 Where only an easement
for a right of way is concerned, and its use for such purpose
ceases, the land is discharged of the burden of the easement
and the right to possession reverts to the original
landowner or to that landowner's successors in interest; the
right to possession does not go to grantees and successors in
interest of the railroad company. /3
The interpretation of a right of way deed is a mixed
question of fact and law. /4 Determining the parties' intent
is a factual question and the courts must look to the entire
document in order to ascertain such intent. /5
 In Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526
(1979), the granting and habendum clauses of the deed
contained absolute grants of land to the railroad. There,
the parties had described the land being conveyed as "a
right-of-way 100 feet wide, being 50 feet on each side of
the center line of the railroad." /6 The court observed that
"[l]anguage like this has been found to create an easement,
not a fee simple estate." /7 The court then referred to the
following rule from Morsbach v. Thurston Cy., 152 Wash.
562, 278 P. 686 (1929), as clarified in Swan v. O'Leary,
37 Wn.2d 533, 537, 225 P.2d 199 (1950):
[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
Veach, at 574.
The deed in the Porter case likewise stated in its
granting clause that the Improvement Company conveyed
to Bellingham Northern "for all railroad and other
right-of-way purposes", a parcel of land 50 feet wide. Under
the rule enunciated in Morsbach, Swan and Veach, and absent
persuasive evidence of intent to the contrary, it thus appears
that the 50-foot strip was an easement. /8
Porter maintains, however, that if the entire deed is
examined as Veach requires, the conveyance of a fee is
Examining the entire deed, we note that while it contains
no habendum clause, its final paragraph reserves to the
grantor the right to use the land being conveyed in certain
designated ways so long as such uses do not interfere with
the railroad. In the early case of Reichenbach v. Washington
Short Line Ry., 10 Wash. 357, 360, 38 P. 1126 (1894),
this court held that a deed with similar provisions conveyed
an easement only. The deed in Reichenbach conveyed a
right of way to be used for a railroad and stated that the
right of way was not to be fenced and that the grantors
retained the right to cross and recross it at will. These
provisions were found to be inconsistent with the intention
to grant a fee and consistent with the grant of only an
easement for a particular purpose.
In its 1914 deed to Bellingham Northern, the
Improvement Company reserved to itself the right to extend
streets over the land being conveyed as well as the right to
construct public utilities along these streets, "the same not
to be unnecessarily obstructed by the grantee in the operation
of its trains over its railroad." The clause then added
that these reservations were to be exercised so as not to
interfere "in any manner whatsoever with the construction,
reconstruction, operation, maintenance, or repair, of any line
or lines of railroad, or appurtenances, at any time or times
placed upon the lands herein conveyed . . ." The particular
purpose for which the land was being conveyed was thus
emphasized throughout the deed. As in Reichenbach, the
grantor's reservations are inconsistent with an intent to
grant a fee.
Porter goes outside the language of the deed to further
argue that extrinsic evidence proves that the Improvement
Company conveyed a fee simple title to the railroad. Porter
points to the Improvement Company's inclusion of the
50-foot strip in its 1913 property inventory and to the
exclusion of that strip in its 1914 inventory to show
that the Improvement Company intended to convey a fee to
Bellingham Northern. Under the trial court's findings, this
extrinsic evidence is ambiguous at best. /9 We conclude that
it is insufficient to overcome the presumption arising from
the language of the deed that the deed conveyed no more
than an easement in the 50-foot strip.
Clearly, based on the language of the deed, the
Improvement Company conveyed an easement only, and not a
fee simple interest, to Porter's predecessor in interest,
CONCLUSION. A deed that describes the property being
conveyed as all of the grantor's property in a particular
locality is not invalid.
 Catchall clauses (sometimes referred to as "Mother
Hubbard" descriptions) purporting to convey all of a
grantor's land in a given area have been repeatedly
upheld. /10 When a person quitclaims all property owned by
that person in a certain locality, he or she thereby transfers
all property in that locality to which record title is held at
the time of the conveyance. /11
We do not perceive that upholding the validity of a
catchall clause conflicts with our cases holding that land
must be properly and clearly identified in a deed before the
deed is valid as a conveyance. /12 When land is insufficiently
described in a deed, no other records can assist in
determining the property transferred. /13 A catchall clause, by
contrast, conveys all of a grantor's property. Resort to real
estate records in the vicinity involved can thus identify
with certainty the property being transferred. 14
We affirm the trial court's conclusion that the catchall
clauses in the deeds from the Improvement Company to
Bellingham Securities, and thence from Bellingham Securities'
successors to Roeder, effectively conveyed title in the
right of way land to Roeder.
CONCLUSION. When metes and bounds provisions in a
deed describe property that extends up to, but does not
include, a railroad right of way, the presumption that
abutting property owners take title to the center of the right
of way is rebutted.
By statute, upon abandonment of a public street or alley,
title vests in the adjoining landowners. /15 Similarly, at
common law, the conveyance of land bounded by or along a
highway carries title to the center of the highway unless
there is something in the deed or surrounding circumstances
showing an intent to the contrary. /16 This rule is
based on a presumption that the grantor intended to
convey such fee along with and as a part of the conveyance of
the abutting land, generally on the theory that the grantor
did not intend to retain a narrow strip of land which could
be of use only to the owner of the adjoining land. /17 The
rule is also intended to lessen litigation caused by the
existence of narrow strips of land distinct in ownership from
the adjoining property. /18
This "highway presumption" has been extended to
private streets and nonnavigable rivers in Washington. /19 A
call in a deed to a nonnavigable river carries with it title to
the center of the river. /20
 We believe it appropriate that the "highway
presumption" likewise apply to railroad rights of way, as has
been held in most other jurisdictions which have considered
the question. /21 Generally then, the conveyance of land
which is bounded by a railroad right of way will give the
grantee title to the center line of the right of way if the
grantor owns so far, unless the grantor has expressly
reserved the fee to the right of way, or the grantor's
intention to not convey the fee is clear. /22
A major concern in examining conveyances of abutting
land is, of course, to determine the intent of the parties to
the deed. /23 When the deed refers to the grantor's right of
way as a boundary without clearly indicating that the side
of the right of way is the boundary, it is presumed that the
grantor intended to convey title to the center of the right of
way. /24 When, however, a deed refers to the right of way as
a boundary but also gives a metes and bounds description
of the abutting property, the presumption of abutting
landowners taking to the center of the right of way is
rebutted. /25 A metes and bounds description in a deed to
property that abuts a right of way is evidence of the grantor's
intent to withhold any interest in the abutting right of
way, /26 and such a description rebuts the presumption that
the grantee takes title to the center of the right of way.
All of the appellants herein, with the exception of
the Davises, obtained their abutting property from the
Improvement Company or its successors. As discussed
previously, the Improvement Company retained fee title to
the two rights of way at issue and then effectively conveyed
that title to its successors. With one exception, /27 the deeds
with which these grantors conveyed abutting property used
metes and bounds to describe that property as extending
up to the rights of way. A typical example is one of the
descriptions of the abutting property conveyed:
Beginning at a point on the North line of Oregon
Street Two Hundred Seventy (270) Feet East of its point
of intersection with the East line of Orleans Street;
thence North Three Hundred Fifty-three (353) feet to
the South line of the Railroad Right-of-Way of the
Chicago, Milwaukee, St. Paul and Pacific Railway; thence
Easterly along said Right-of-Way South line One
Hundred Sixty and Thirty-Six Hundredths (160.36) Feet;
thence South Three Hundred Sixty-three and
Seventy-eight [Hundredths] (363.78) Feet to the North line
of Oregon Street; thence West along said North line One
Hundred Sixty (160) Feet to the point of beginning. [ /28 ]
A boundary falling in the center of the rights of way is
inconsistent with the careful metes and bounds descriptions
in these deeds. /29
As noted earlier, the Davises presented no evidence
pertaining to their acquisition of adjoining property. The
presumption that the grantor intended to convey title to
the center of the right of way is inapplicable where the
adjoining landowner presents no evidence of having received
his or her property from the owner of the right of way. A
property owner receives no interest in a railroad right of
way simply through ownership of abutting land. /30 We agree
to say that a person acquiring title to an abutting lot
thereby acquires a fee in the [right of way], even though
his grantor could not have conveyed such fee, would have
the effect of taking property from one owner and giving it
Standard Oil Co. v. Milner, 275 Ala. 104, 112, 152 So. 2d
Without evidence showing that the owner of abutting
property received that property from the fee owner of
the right of way property, the railroad presumption is
inapplicable. Even in the face of such evidence, other persuasive
evidence of the grantor's intent to retain the right of way
can rebut the presumption. Specifically, language in a deed
that describes the adjoining property as extending up to
the edge of the right of way rebuts the presumption that
the grantor intended to convey title to the center of the
right of way.
The trial court did not err in quieting title to the two
rights of way in Roeder.
DOLLIVER, C.J., and UTTER, BRACHTENBACH, DORE,
PEARSON, CALLOW, GOODLOE, and DURHAM, JJ., concur.
Reconsideration denied May 27, 1986.
1. A companion case is Roeder Co. v. Burlington Northern, Inc.,
105 Wn.2d 269, 714 P.2d 303 (1986).
2. Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979);
Morsbach v. Thurston Cy., 152 Wash. 562, 568, 278 P. 686 (1929).
3. Scott v. Wallitner, 49 Wn.2d 161, 162-63, 299 P.2d 204 (1956);
4. Veach, at 573; see Morsbach, at 571.
5. Veach; see Morsbach, at 567.
6. Veach, at 574.
7. Veach, at 574.
8. For similar rules with similar results, see City Motel, Inc. v.
State ex rel. State Dep't of Hwys., 75 Nev. 137, 336 P.2d 375, 337
P.2d 273 (1959); Daugherty v. Helena & N.W. Ry., 221 Ark. 101, 252
S.W.2d 546 (1952); State ex rel State Hwy. Comm'n v. Griffith, 342 Mo.
229, 114 S.W.2d 976, 132 A.L.R. 151 (1938); Johnson v. Ocean Shore R.R.,
16 Cal. App. 3d 429, 94 Cal. Rptr. 68 (1971); Glendora v. Faus, 148
Cal. App, 2d 920, 307 P.2d 976 (1957).
9. See Porter finding of fact 27 which states that "[i]t is unknown
whether [the Improvement Company] would keep in its inventory, or
remove therefrom, parcels of property over which it had granted a
right of way easement to a railroad. The identity, and position and
responsibilities of the person(s) responsible for keeping the
inventory also are unknown."
10. 6 G. Thompson, Real Property SS 3023 (1962 repl.). See also
Cunningham v. Norwegian Lutheran Church of Am., 28 Wn.2d 953, 959-62,
184 P.2d 834 (1947); 4 H. Tiffany, Real Property SS 997, at 230
(3d ed. 1975); Annot., Sufficiency and Construction of Description
in Deed or Mortgage as "All" of Grantor's Property, or "All" of His
Property in Certain Locality, 55 A.L.R. 162, 163 (1928); 26 C.J.S.
Deeds SS 30(b), at 649 (1956).
11. Cunningham, at 958-59.
12. See Barth v. Barth, 19 Wn.2d 543, 556, 143 P.2d 542 (1943);
Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960).
13. See Marshall v. Hillman Inv. Co., 151 Wash. 529, 532-33, 276
P. 564 (1929); Hartigan v. Hoffman, 16 Wash. 34, 38, 47 P. 217
14. See Cunningham, at 958-59.
15. RCW 35.79.040.
16. McConiga v. Riches, 40 Wn. App. 532, 538, 700 P.2d 331 (1985); G.
Thompson, SS 3068, at 666.
17. Standard Oil Co. v. Milner, 275 Ala. 104, 110, 152
So. 2d 431 (1962); see also McConiga, at 539.
18. Cuneo v. Champlin Ref Co., 178 Okla. 198, 202, 62 P.2d
82 (1936); Vaughn v. Fitzgerald, 511 P.2d 1148, 1151 (Okla. Ct.
19. McConiga, at 539; Knutson v. Reichel, 10 Wn. App. 293,
518 P.2d 233 (1973).
20. Knutson, at 295.
21. Cuneo, at 202; Annot., Boundary Under Conveyance of Land
Bordering on Railroad Right of Way, 85 A.L.R. 404 (1933).
22. 11 C.J.S. Boundaries SS 45, at 594 (1938); Standard Oil
Co., at 110; Vaughn, at 1151.
23. See Millyard v. Faus, 268 Cal. App. 2d 76, 85, 73 Cal.
Rptr. 697 (1968); G. Thompson, SS 3068, at 677.
24. Faus v. Nelson, 241 Cal. App. 2d 320, 323-24, 50 Cal.
Rptr, 483 (1966); G. Thompson, SS 3068, at 671.
25. Millyard, at 84; Standard Oil Co., at 110; G. Thompson, SS
3068, at 675-76.
26. Millyard, at 84; Redlands v. Nickerson, 188 Cal. App. 2d
118, 126, 10 Cal. Rptr. 431 (1961).
27. That exception describes the abutting property as "lying
Northerly of the right-of-way". While not in metes and bounds
terms, under the facts herein such a description appears to
exclude any interest in the right of way. See 85 A.L.R. at 409.
28. The Brandt deed (Brandt is one of the parties in the Porter
29. See Millyard, at 84-85.
30. See Standard Oil Co., at 112-13; see also Hagen v. Bolcom
Mills, 74 Wash. 462, 470, 133 P. 1000, 134 P. 1051 (1913).