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Washington State Court of Appeals
[No. 44619-3-I. Division One. May 30, 2000.]

ROEDER COMPANY, Appellant, v. K&E MOVING & STORAGE COMPANY, INC., ET AL., Respondents.



1. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). While it may be appropriate to apply a less deferential standard in cases that involve only documentary evidence, the usual standard of review is appropriate here because the trial court heard extensive testimony from two witnesses, Daniel Bolster and Tim Wall, who offered their opinion to the court on the relevance and significance of some of those documents to the case. The trial court also made a finding about the parties' intent. In contrast, the Supreme Court evidently applied a de novo standard of review to a railroad right of way case in Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979), but there had been no finding of intent by the trial court.

2. Roeder Co. v. Burlington Northern, Inc., 105 Wn.2d 567, 571, 716 P.2d 855 (1986).

3. Id.

4. It is undisputed that this right of way has been abandoned for railroad purposes.

5. 130 Wn.2d 430, 924 P.2d 908 (1996).

6. The trial court thought it was required to conclude that the deed was ambiguous before it could consider extrinsic evidence. Although that rule once applied in railroad right of way cases, see, e.g., Roeder Co. v. Burlington Northern, Inc., 105 Wn.2d 269, 276, 714 P.2d 1170 (1986), the Supreme Court has recently ruled that, in light of Washington's adoption of the "context rule" for contracts, courts may look to extrinsic evidence along with the deed itself to determine the parties' intent. See Brown, 130 Wn.2d at 438 ("In addition to the language of the deed, we will also look at the circumstances surrounding the deed's execution and the subsequent conduct of the parties."); Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 742-43, 844 P.2d 1006 (1993) (applying the context rule to ascertain the parties' intent in conveying a railroad "right of way" and rejecting the notion that ambiguity must precede consideration of extrinsic evidence in those cases), cert. denied, 510 U.S. 1047 (1994). We therefore consider both the deed and the extrinsic evidence.

7. Brown, 130 Wn.2d at 437.

8. Id. The statutory basis for assuming a fee simple interest unless there is language to the contrary is clear. RCW 64.04.030 states that every deed that follows the statutory warranty deed form "shall be deemed and held a conveyance in fee simple to the grantee, his heirs and assigns. . . ." This rule originated in 1886. See Laws of 1886, SS 3 at 177.

9. See Brown, 130 Wn.2d at 444. Like a deed that follows the statutory warranty deed form, a bargain and sale deed based on the statutory form automatically conveys a fee simple estate. RCW 64.04.040 provides that a deed modeled on the bargain and sale form "shall convey to the grantee, his heirs or assigns an estate of inheritance in fee simple. . . ." This presumption also originated in 1886. See Laws of 1886, SS 4 at 178.

10. Brown, 130 Wn.2d at 439.

11. Id. at 440. The general purpose of the conveyance, i.e. for railroad purposes, is not helpful in this inquiry because it does not clarify whether the right of way is an easement or a fee. Courts must "conduct a deed-by-deed analysis to ascertain whether the parties clearly and expressly limited or qualified the interest granted, considering the express language, the form of the instrument, and the surrounding circumstances." Id.

12 Id. at 441.

13. Id. at 442.

14. A copy of the Simpson deed was an exhibit at trial.

15. Brown, 130 Wn.2d at 444.

16. The Brown court enumerated a number of factors helpful in "determining whether the property owners have met their burden of showing that the original parties intended to adapt the statutory form to grant easements instead of fees simple." They are:

    (1) whether the deed conveyed a strip of land, and did not contain additional language relating to the use or purpose to which the land was to be put, or in other ways limiting the estate conveyed; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal; and (7) whether the conveyance did or did not contain a habendum clause, and many other considerations suggested by the language of the particular deed.

Id. at 438 (emphasis added).

17. Exhibit 3 indicates that BBIC sold an "Easement of R of W" to a railroad for $1,200.00 in 1902.

18. 92 Wn.2d at 570.

19. See RCW 64.04.050.

20. 37 Wn.2d 533, 225 P.2d 199 (1950).

21. There was no extrinsic evidence of the parties' intent available to the Brown court. See 130 Wn.2d at 437 n.5.

22. Bolster is a member of the family that owns the Roeder Company. His testimony implies that he had conducted his own research at the Archivic Center for Northwest Studies and was familiar with many of the historical documents in the archives that relate to Roeder.

23. The 1890 date on the deed conflicts with Bolster's reference to an 1891 transfer of land between BB&BC RR and BBIC, but it is reasonable to assume that Bolster was referring to the 1890 transfer.

24. The trial court had before it the 1890 deed. The record shows, and Bolster's testimony explains, that the 1890 deed incorrectly described the boundaries of the land on which the right of way exists, and the parties filed a correction deed in March 1901 clarifying the area conveyed.

25. (Emphasis added.)

26. The remaining contested findings are:

    1.4 The November 26, 1901 deed has no reversionary language that would be triggered upon a different use of the subject property.
    1.5 The November 26, 1901 deed used the word "tract" but the deed in fact describes a 50 foot wide strip of land.
    1.6 The November 26, 1901 deed has no language restricting the use of the strip of land therein conveyed, but the deed does have a title that is a "right of way" deed.

Even if there were not substantial evidence to support these findings, the result would not change because they merely record the trial court's observations about the deed itself.

27. The panel wishes to note that this case marks the end of a venerable legal career for appellant's attorney, Sam Peach, who argued one of the first cases before this court when it originated in 1969.