Washington State Appeals Court, Division One
[No. 25057-4-I. Division One. December 20, 1990.]
KING COUNTY, Appellant,
SQUIRE INVESTMENT CO., ET AL, Respondents.
Nature of Action: A county sought to quiet title and to
condemn an abandoned railroad right of way against the
claims of the successors and heirs of the original owners
who claimed title through a reversion clause. An adjoining
landowner also claimed a portion of the former right of
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are two versions of King County v. Squire 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 King County v. Squire (1990) with emphasis given to the meaning of the words "right-of-way" in railroad deeds.
Superior Court: The Superior Court for King County,
No. 87-2-13154-8, Peter K. Steere, J., on May 19, 1989,
entered a summary judgment against the adjoining landowner,
and on September 28, 1989, after having entered a
summary judgment quieting title in favor of the successors
and heirs, entered a judgment on a verdict in favor of the
successors and heirs in the condemnation proceedings. A
supplemental judgment awarding attorney and expert witness
fees and costs was later entered in favor of the successors
Court of Appeals: Holding that only a right of way
easement had been granted, that the easement was
extinguished upon the abandonment of the right of way
by the railroad, that the defendants were entitled to fees
and costs only for the condemnation portion of the action,
and that the failure to join the successors in interest
to the grantor of the easement did not improve the position
of the adjoining landowner, the court affirms the summary
judgments quieting title in favor of the successors and
heirs and against the adjoining landowner but reverses
and remands the supplemental judgment for segregation of
fees and costs between the quiet title and the condemnation
Norm Maleng, Prosecuting Attorney, Frederick A.
Kaseburg, Special Deputy, and Stanley D. Tate, Deputy,
Robert Johns, William Hickman, Darrell S. Mitsunaga,
and Reed McClure, for respondent Squire Investment Co.
Ruth Tressel, for respondent Metropolitan Seattle.
Daryl A. Deutsch, for respondents Davidson, et al.
[As amended by order of the Court of Appeals January
FORREST, J.-King County appeals from the trial court's
grant of summary judgment to Squire Investment Company
(Squire) and to Davidson in a condemnation/quiet title
action, in which the court found that the disputed
property was either a railroad right of way or a fee simple
determinable. King County also appeals from the court's
supplemental judgment, which awarded Squire $182,029 for
attorney fees, expert witness fees and litigation expenses
pursuant to RCW 8.25.070. Respondent Linzy cross-appeals
from the trial court's holding that he had no interest
in the abandoned right of way. We affirm in part and
reverse in part.
On March 29, 1887, Watson and Ida Squire executed a
deed granting a half-mile right of way to the Seattle Lake
Shore and Eastern Railway Company. The material portion
of the deed reads as follows with the handwritten additions
by Mr. Squire set forth in boldface type:
In Consideration of the benefits and advantages to accrue
to us from the location, construction and operation of the
Seattle Lake Shore and Eastern Railway, in the County of King,
in Washington Territory, we do hereby donate, grant and convey
unto said Seattle Lake Shore and Eastern Railway a right-of-way
Fifty (50) feet in width through said lands in said
County, described as follows, to-wit: [legal description].
Such right-of-way strip to be twenty-five (25) feet in
width on each side of the center line of the railway track as
located across the said lands by the Engineer of said Railway
Company, which location is described as follows, to-wit
. . . .
On November 20, 1896, Squire conveyed the property
through which the railway right of way ran to the Union
Trust Company with the following language included in the
deed: "together with all . . . the tenements, hereditaments
and appurtenances thereunto belonging or in anywise
appertaining and the reversion and reversion remainder
and remainders rents issues and profits thereof."
To Have and to Hold the said premises, with the
appurtenances, unto the said party of the second part,
and to its successors and assigns forever or so long as
said land is used as a right-of-way by said railway
Company, Expressly reserving to said grantors their heirs
and assigns all their riparian rights and water front
rights on the shores of Lake Washington. And this
grant is upon the condition that said railway shall be
completed over said lands on or before January 1st,
The name "Union Trust Company" was later changed to
"Squire Investment Company." In 1976, Squire Investment
Company was dissolved. Its real property interests were
distributed to its shareholders, who were the heirs of
Watson and Ida Squire.
On July 29, 1985, the Interstate Commerce Commission
issued a certificate of abandonment permitting Burlington
Northern, the successor railroad to the Seattle Lake Shore
and Eastern Railway Company, to abandon railroad service
over the right of way. On December 19, 1985, Burlington
Northern quitclaimed to King County any interest it had
in the property.
King County filed its quiet title action and petition
for condemnation on July 30, 1987, naming as parties
"Squire Investment Company," Don Linzy and approximately
100 others. An "Order Adjudicating Public Use and Necessity,"
permitting the County to begin using the right of way as a
trail, was filed on October 20, 1987. King County filed a
motion for summary judgment; Squire filed a cross motion.
The trial court granted partial summary judgment to
Squire, holding that the original deed created a fee simple
determinable or a right of way easement. In either case,
the trial court held, the original grantor's heirs owned
the property. The court further concluded that King County's
intended use for the property was inconsistent with the use
for which the right of way was granted. It reserved the
issue of just compensation for trial.
A jury returned a verdict of $750,000 in favor of
Squire on the issue of just compensation. King County had
previously offered $650,000. In a supplemental judgment, the
trial court awarded $182,029 for attorney fees, expert
witness fees and litigation expenses pursuant to RCW
On May 19, 1989, the trial court granted partial summary
judgment against respondent Don Linzy. Linzy claimed an
interest in the right of way as an abutting property owner.
He cross-appeals from the summary judgment.
King County acknowledges that the original deed conveyed
a fee simple determinable or a right of way easement. It
contends, however, that the limitation within the deed,
which conveyed the property "so long as said land is used
as a right-of-way by said railway Company," was never
violated, despite Burlington Northern's formal abandonment,
because the railroad once carried passengers traveling
for recreation, just as a trail would. It further argues
that the trial court's holding promotes forfeitures and
any reverter rights were personal to Watson and Ida Squire.
THE SQUIRE DEED
 Although the language of a particular deed defines
the interest conveyed, rights of way granted to a railroad
are frequently held to create easements. As stated in 2 J.
Grimes, Thompson on Real Property SS 381, at 506 (1980
A deed of a right-of-way for a railroad, habendum "so long
as the same shall be used for the operation of a railroad,"
provided it should be built by a certain date, gives an easement
merely and not a fee, and the agreement to build the road is
a condition subsequent, and not a mere covenant.
(citing Reichenbach v. Washington Short Line Ry.,
10 Wash. 357, 38 P. 1126 (1894)).
Previous Washington cases show a strong tendency to
construe such rights of way as easements. In Swan v.
the court considered whether the deed which
conveyed two rights of way for use by a railroad created
a fee or an easement.
Relying on Morsbach v. Thurston
the Swan court stated:
[W]hen the granting clause of a deed declares the purpose of
the grant to be a right of way for a railroad the deed passes
an easement only, and not a fee with a restricted use, even
though the deed is in the usual form to convey a fee title.
Swan, at 537.
In Pacific Iron Works v. Bryant Lumber & Shingle Mill
Co., 60 Wash. 502, 505, 111 P. 578 (1910), the deed stated
that the land was to be used "for railway purposes, but if it
should cease to be used for a railway the said premises shall
revert to said grantors, their heirs, executors, administrators
or assigns.'" (Italics omitted.) The court, construing
the deed as a whole, held that the instrument conveyed a
right of way easement, despite the deed's language, which
would typically be interpreted as creating a fee simple
subject to a condition subsequent.
In Reichenbach v. Washington Short Line Ry., 10 Wash.
357, 358, 38 P. 1126 (1894), the deed conveyed a railroad
right of way "so long as the same shall be used for the
operation of a railroad." It also permitted the grantors
to cross over the right of way and prohibited fencing. As
in the instant case, the deed conditioned conveyance upon
completion of the railroad line by a certain date. The
court held that an easement had been granted.
The Squire deed granted a "right-of-way Fifty (50) feet
in width through said lands". This suggests an easement
was conveyed. Both King County and Squire note, however,
that the habendum clause contains the handwritten language,
"or so long as said land is used as a right-of-way by
said railway Company," which arguably suggests conveyance
of a fee simple determinable. If the granting clause
merely conveyed the land to the railroad without reference
to a right of way, the "so long as" language would create
such a fee. Since the language in the granting clause
strongly suggests conveyance of an easement, however, we
find it more plausible that the "so long as" language was
inserted by Squire to preclude the claim that he conveyed a
fee simple to the railroad, particularly since the habendum
clause granted the interest to the railroad and "to its
successors and assigns forever". The authorities and cases
discussed above clearly support construing the Squire deed
as an easement.
In Veach v. Culp,
the court construed a deed which
granted a right of way and used the standard habendum
clause language, but without the additional language
conditioning use of the property on its continued use as
a railroad right of way. The successor railroad argued
that the absence of such limiting language showed a fee
was conveyed. The Veach court disagreed, holding that the
language of the deed which described the conveyance of a
right of way indicated an easement had been conveyed. The
instant case is much more compelling since Squire specifically
included language in the habendum clause reiterating the
limitation of the conveyance to use as a right of way.
We hold that an easement was conveyed.
 King County contends, however, that its use of the
right of way as a recreational trail is within the scope
of the interest conveyed to the railroad and, hence, it
was not abandoned. The County's argument is without merit.
Burlington Northern formally abandoned the right of way on
July 29, 1985. The easement was extinguished at that
moment and its interest reverted to the Squires' heirs.
Burlington Northern had no interest to convey to King
County for use as a railroad much less as a trail. Even if
the right of way had not been formally abandoned, Lawson
defeats the County's argument. Responding to
a similar argument, the court stated:
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.
Lawson, at 452.
King County's reliance upon Martin v. Seattle
misplaced. In Martin, the court held that the deed in question
contained a condition subsequent, not a fee on limitation
or an easement, and decided that although the condition had
been breached, the grantor and successors did not exercise
their power of termination within a reasonable time. In
contrast, the Squire deed conveyed an easement and,
therefore, no action was required by the grantors'
successors to terminate the interest.
In summary, the Squire deed conveyed an easement to the
railroad which terminated when its successor, Burlington
Northern, abandoned the line with the approval of the ICC.
The reversionary interest passed to the successors of the
grantors. The trial court's alternative holding that the
Squire deed conveyed an easement and, consequently, King
County acquired no interest in the right of way is affirmed.
These holdings render it unnecessary to address King
County's other contentions as to title.
King County appeals from the award of attorney fees
contending that the fees are unreasonably large and that
the award improperly included fees relative to both the
quiet title portion as well as the condemnation portion
of this dispute.
Attorney fees are permitted only if based on a statutory,
contractual or equitable ground.
Here, the award is based
on RCW 8.25.070, which states in part:
(1) Except as otherwise provided in subsection (3) of this
section, *if a trial is held for the fixing of the amount of
compensation to be awarded to the owner or party having an
interest in the property being condemned*, the court shall
award the condemnee reasonable attorney's fees and reasonable
expert witness fees in the event of any of the following:
. . . .
In this proceeding, the County filed a quiet title action
to ascertain the ownership of the right of way in combination
with a condemnation action to acquire property from the
owners once ascertained. In a typical quiet title action,
there is no statutory basis for awarding attorney fees to
prevailing parties. If the County had simply filed a separate
quiet title action, the defendants would not have been
entitled to attorney fees even if successful. There is no
reason for a different result when a condemnation action
is combined with a quiet title action in a single suit.
Indeed, such a procedure efficiently utilizes scarce
judicial resources and should be encouraged.
(b) If the judgment awarded as a result of the trial exceeds
by ten percent or more the highest written offer in settlement
submitted to those condemnees appearing in the action by
condemnor in effect thirty days before the trial.
. . . .
(3) Reasonable attorney fees and reasonable expert witness
fees authorized by this section shall be awarded only if the
condemnee stipulates, if requested to do so in writing by the
condemnor, to an order of immediate possession and use of the
property being condemned . . ..
It is true that the owners must be determined before
a condemnation action may proceed.
The purpose of an
award pursuant to RCW 8.25.070, however, is to ensure
that owners receive full compensation for property taken
for public use, without a decrease due to attorney fees
when they increase their condemnation award by more than 10
percent over the condemnor's highest settlement offer. No
equivalent purpose compels an award of attorney fees to a
party which establishes its ownership in a quiet title action,
and no statutory basis exists for providing such an award.
 It is not uncommon for lawsuits to involve some
claims which allow for attorney fees with some claims that
do not. In such cases the rule is well established that
the prevailing party should be awarded attorney fees only
for the legal work completed on the portion of the claim
permitting such an award.
Here, the language of the statute
is clear: attorney and expert witness fees are to be awarded
only when they relate to a trial held to fix the amount of
compensation to be awarded to the condemnee.
Trial of a
quiet title action is not held for the purpose of fixing
State v. Evans
and Peterson v. Port of Seattle
not require a different result. The Evans court did not
even consider RCW 8.25.070. The language from Evans relied
on by Squire related to the court's holding that the State
had standing to challenge whether the respondent had an
enforceable interest in certain properties, and is inapposite
here. In Peterson, the just compensation trial was not
conducted. The court held, however, that the preliminary
proceedings were an essential part of the condemnation
process justifying an award of fees under RCW 8.25.070.
Such is not the case here where the quiet title action
The specific language of RCW 8.25.070 and its underlying
policy require that Squire only receive an award for
attorney and expert witness fees incurred while litigating
the condemnation portion of the litigation. Accordingly, we
remand this action to the trial court to segregate the fees
between the quiet title and the condemnation portions of
the dispute and to make a reasonable award of fees under
RCW 8.25.070 relating to the condemnation action.
to attorney fees on appeal, King County and Squire each
prevailed in part, and accordingly, we award no attorney
fees on appeal.
LINZY CROSS APPEAL
Respondent Linzy, an abutting landowner, cross-appeals
from the trial court's conclusion that he had no interest
in the right of way. Although the first deed in Linzy's chain
of title excepted the right of way, the subsequent deeds,
including the deed by which Linzy acquired title, were by
metes and bounds description referencing the railroad right
of way as a boundary.
 Roeder Co. v. Burlington Northern, Inc.
controlling. In Roeder, the court stated the rule for
abutting landowners as follows:
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.
(Footnote omitted.) Roeder, at 576. The court qualified
the general rule, however, by holding that it is rebutted
when "a deed refers to the right of way as a boundary but
also gives a metes and bounds description of the abutting
property". Roeder, at 577.
Linzy acknowledges that the rule as stated in Roeder
would defeat his claim to a portion of the right of way
since the deed of Mr. M. Barquist, Linzy's predecessor in
interest, conveying title to the Seattle Lakeshore and
Eastern Railway Company is described in metes and bounds
and references the right of way as a border. Linzy notes
that in Roeder, the successor to the grantor of the right
of way appeared and argued its claim against the abutting
landowners. He urges this court to hold that the rule does
not apply here since the successors are not in court nor
even identified. We decline to do so. Roeder does not
recognize or support any such limitation, nor do we find
any compelling policy reasons justifying such an exception.
Linzy's ownership should be determined according to the
title he holds rather than according to whether other parties
fortuitously learned of the litigation and appeared to
press their claim. Why should the successors to the grantor
of a right of way be deprived of their title without notice?
The fact that the property may have greater value to the
abutting owner than to the successor of the grantor was not
found persuasive in Roeder and is unpersuasive here. The
court correctly determined that Linzy had no interest in
the property in question.
The judgment below is affirmed in both the Squire and
Davidson cases except as to the award of attorney and
expert witness fees in the Squire condemnation action
which is remanded for recalculation consistent with
COLEMAN, C.J., and PEKELIS, J., concur.
Review denied at 116 Wn.2d 1021 (1991).
1. See also 4 J. Grimes, Thompson on Real Property SS
1849, at 371 (1979 repl.) ("Where land is conveyed to a
railroad company for a right-of-way, such conveyance,
though in the form of a warranty deed, is generally
construed as passing an easement or right-of-way only,
is limited to that use, and must revert to the owner of
the fee when the use is abandoned.") (Footnote omitted.);
3 H. Tiffany, Real Property SS 772, at 232 (3d ed. 1939)
("However, a grant of a right of way to a
railroad company does not usually convey a fee, but an
easement only.') (Footnote omitted.); Annot., Deed to
Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d
2. 37 Wn.2d 533, 225 P.2d 199 (1950).
3. The respondent in Swan, at 534, conveyed the property
"for the purpose of a Railroad right-of-way . . .".
(Italics omitted.) Unlike the instant case, there were no
"magic" words in the deed suggesting a fee was created.
4. 152 Wash. 562, 574-75, 278 P. 686 (1929).
5. 92 Wn.2d 570, 599 P.2d 526 (1979).
6. See also Roeder Co. v. Burlington Northern, Inc.,
105 Wn.2d 567, 571, 716 P.2d 855 (1986) (railroad right
of way reverts to reversionary interest holders when a
railroad company abandons a line).
7. 107 Wn.2d 444, 730 P.2d 1308 (1986).
8. 111 Wn.2d 727, 765 P.2d 257 (1988).
9. Miotke v. Spokane, 101 Wn.2d 307, 338, 678 P.2d 803
10. State v. Evans, 96 Wn.2d 119, 634 P.2d 845 (1981).
11. Travis v. Washington Horse Breeders Ass'n, Inc.,
111 Wn.2d 396, 410, 759 P.2d 418 (1988); Nordstrom, Inc. v.
Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987); Boeing
Co. v. Sierracin Corp., 108 Wn.2d 38, 66, 738 P.2d 665
12. See State v. Buckley, 18 Wn. App. 798, 572 P.2d 730
(1977) (condemnees were not entitled to an award under
RCW 8.25.070, which applies if a trial is held to fix
compensation for condemned property, because they had
waived trial and accepted the amount offered by the State).
13. 96 Wn.2d 119, 634 P.2d 845 (1981).
14. 94 Wn.2d 479, 618 P.2d 67 (1980).
15. The general standards for awarding attorney fees are
applicable. The County's contention that the fees must be
limited to a percentage of the $100,000 increase over the
highest settlement offer is completely meritless.
16. 105 Wn.2d 567, 716 P.2d 855 (1986).