Nature of Action: Certain property owners sought
removal of a fence along a right-of-way which crossed their
property and damages for loss of a sale.
Superior Court: The Superior Court for Whatcom
County, No. 51720, Byron L. Swedberg, J., on January 6,
1977, entered a judgment in favor of the defendants.
Court of Appeals: The court affirmed the judgment at
21 Wn. App. 454, finding that the right-of-way was a fee
Supreme Court: Holding that the nature of the estate
was a mixed question of law and fact and that the
right-of-way was a mere easement, and finding that the plaintiff's
proposed use was compatible with the use by the holders of
the easement, the court reverses the judgment.
Sam Peach, for petitioners.
Lycette, Diamond & Sylvester, by Lyle L. Iversen, for
STAFFORD, J., did not participate in the disposition
of this case.
BRACHTENBACH, J.-Along the shore of Lake Whatcom
there is a railroad. It is the source of this prolonged
litigation. The defendant railroad currently operates an
excursion train over 4 1/2 miles of track formerly owned by
the Burlington Northern Railroad. In 1901, the railroad's
predecessor in interest acquired a quitclaim deed from the fee
owner; that deed is quoted later. The plaintiffs own 550 feet
of Lake Whatcom lake front and 6 acres of upland property.
The defendant railroad's tracks bisect plaintiffs' two
Plaintiffs and their lessees have used portions of the
right-of-way for lake front-oriented purposes, such as
picnic tables and a bathhouse. They have crossed the
right-of-way to reach the lake and want to continue to do so.
They draw water from the lake through a pipe running under
the right-of-way. The railroad objects. After a series of
skirmishes, the confrontations came to a head when the
railroad removed portions of the plaintiffs' improvements
on the beach, within the right-of-way, and erected a chain
link fence effectively preventing access to the lake. This
Plaintiffs sought removal of the fence and damages from
the loss of a sale of their property allegedly due to the
railroad's assertion of exclusive rights to the right-of-way.
Further they asked that the railroad be restrained from
interfering with their littoral and riparian rights which
had been reserved in the deed and that they be enjoined from
restricting the unfettered use of plaintiffs' land. They also
requested that the court declare the right-of-way had been
Like most property disputes, the trial was lengthy. The
trial court essentially held for the railroad, dismissing
the plaintiffs' complaint and enjoining the plaintiffs from
interfering with the railroad's operations except to cross
the right-of-way to reach plaintiffs' land at a place and in
a manner that would not interfere with defendants'
operations or use of defendants' property or create any
dangerous situation. The court held that the railroad owned
the 100-foot strip in fee simple title. The Court of Appeals
affirmed. Veach v. Culp, 21 Wn. App. 454, 585 P.2d 818
(1978). We reverse.
The controlling question is the nature of the interest
conveyed by the 1901 deed. The pertinent portions of that
quitclaim deed are:
[T]he said party of the first part, for and in consideration
of the sum of Two Hundred and Twenty-five Dollars,
. . . do by these presents remise, release and forever quit
claim unto said party of the second part, and to its
assigns, all that certain lot, piece, or parcel of land
situate in Whatcom County . . . to-wit:
"A right-of-way one hundred feet wide, being fifty feet
on each side of the center line of the B.B. & Eastern R.R.
as now located through that portion of lot 6, Section 22,
Township 37 North Range 4 East, lying east of Fir St.
Blue Canyon and also Lot Seven (7) same Section
excepting all rights for road purposes that may have
heretofore been conveyed to Whatcom County and particularly
reserving all littoral and riparian rights to the
said Fred and Mattie A. Zobrist [the grantors].
"Together with the tenements, hereditaments and
appurtenances thereunto belonging or in anywise
appurtaining, and the reversion and reversions, remainder
and remainders, rents, issues and profits thereof
"To have and to hold, all and singular, said premises,
together with the appurtenances unto the said party of
the second part, and to its assigns forever.
 A conveyance of a right-of-way to a railroad may be
in fee simple or may be an easement only. Morsbach v.
Thurston County, 152 Wash. 562, 568, 278 P. 686 (1929).
The interpretation of such a deed to determine its effect is
a mixed question of fact and law. It is a factual question
to determine the intent of the parties. Then we must apply
the rules of law to determine the legal consequences of that
intent. Vavrek v. Parks, 6 Wn. App. 684, 690, 495 P.2d 1051
(1972); Warren v. Atchison, T. & S.F. Ry., 19 Cal. App. 3d
24, 35, 96 Cal. Rptr. 317 (1971).
In affirming the trial court, the Court of Appeals stated
that substantial evidence supported the trial court's finding
that the intent of the parties was that the deed conveyed a
fee simple title and "[w]e therefore will not disturb that
ruling on appeal." Veach v. Culp, supra at 458. In fact,
there was no such finding-or any finding-as to the intent
of the parties. There was a conclusion, denominated a finding
of fact, that the sale was a sale of land, not a mere easement.
That is not a finding of fact about intent. It is a legal
conclusion as to the effect of the deed. No party to the
deed testified. Therefore, we must look to the entire
document to ascertain intent.
 The railroad argues, first, that the granting and
habendum clauses evidence intent to convey a fee since
they are absolute and, second, that the reference in the
description to a right-of-way is therefore without any
significance. That is too narrow. We must look at the entire
document. As we held in Morsbach v. Thurston County,
supra at 566, the description is in fact a part of the
granting clause. The language of the habendum clause is
but one element in examining the whole of the deed.
 The parties in fact describe what was being conveyed:
a right-of-way 100 feet wide, being 50 feet on each side
of the center line of the railroad. Language like this
has been found to create an easement, not a fee simple
estate. Polk v. Ball, 149 F.2d 263, 264 n.2 (5th Cir. 1945)
("A *right of way over and across* . . . the center line of
said railway *as now located*"); Daugherty v. Helena & N. Ry.,
221 Ark. 101, 102-03, 252 S.W.2d 546 (1952) ("a strip of
land . . . for a right of way . . . being fifty feet in width
on each side of the center of the main track of said railroad
as the same is now, or may hereafter be, located . . .").
In Swan v. O'Leary, 37 Wn.2d 533, 537, 225 P.2d 199
(1950), this court clarified the holding of Morsbach by
[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 fee
The majority of other jurisdictions follow the rule declared
in Swan v. O'Leary. Annot., 6 A.L.R.3d 973, 1013-24
Given the language of the deed explicitly describing the
conveyance of a right-of-way and given the rule of Swan v.
O'Leary, supra, and Morsbach v. Thurston County, supra,
we conclude the deed conveyed an easement, not a fee title.
 The railroad contends, nonetheless, that it is immaterial
whether it owns an easement or a fee simple title. Its
premise for this contention is that a railroad right-of-way,
whether in fee or an easement, is entitled to exclusive
possession. It relies on dicta in Morsbach v. Thurston County,
supra at 568, where the court commented that many courts
say that the right-of-way of a railroad company is more
than a mere easement and that it is more than a mere right
of passage. It further quotes dicta from a tax case, New
Mexico v. United States Trust Co., 172 U.S. 171, 43 L. Ed.
407, 19 S. Ct. 128 (1898). Certainly it is true that in most
instances the very nature of a railroad will require it to
enjoy a substantial right regardless of the nature of its title.
However, we must look to the actual use being made of
this easement in light of the rule that the servient owner
retains the use of an easement so long as that use does
not materially interfere with the use by the holder of the
easement. That principle is well established. Seattle v.
Nazarenus, 60 Wn.2d 657, 666, 374 P.2d 1014 (1962);
Broadacres, Inc. v. Nelsen, 21 Wn. App. 11, 15-16, 583
P.2d 651 (1978).
Here this railroad had been reduced to operation as an
excursion operation. It has never made any freight deliveries.
It has no paid employees. It has a very limited amount of
equipment. Its single locomotive is owned by approximately
30 persons. It makes three round trips on Saturdays and
two on Sundays. It is at the disputed site approximately
only 15 minutes each trip. This regular usage is only
on weekends during the summer for approximately 3 months.
The other 9 months of the year it operates only on
charter, admitting that in some months it has no charters
Thus the average use by the railroad of this disputed
track area would be approximately 1 hour and 15 minutes
during the weekends and then only during the summer.
As holders of the subservient estate, the plaintiffs are
entitled to use the right-of-way in such a manner as does
not materially interfere with the railroad's use thereof.
Plaintiffs concede that their use is so restricted.
Having determined that the railroad's right-of-way is
one of easement, we need not reach the theory of implied
easement advanced by the plaintiffs.
The decision of the Court of Appeals and the judgment
of the trial court are reversed.
UTTER, C.J., ROSELLINI, WRIGHT, HOROWITZ, DOLLIVER,
HICKS, and WILLIAMS, JJ., and ELSTON, J. Pro Tem., concur.
Reconsideration denied October 31, 1979.