[No. 4317-1. Division One. September 12, 1977.]
Elaine Zobrist, Individually and as Executrix, Respondent,
Frank Culp, et al, Appellants.
Nature of Action: A landowner sought to quiet title to
a railroad right-of-way on the basis of a right of reversion
in the event of nonuse.
Note from John Rasmussen:
This is a Washington State precedential railroad right-of-way decision.
There are three versions of Zobrist v. Culp (1977) on this website. This version has added emphasis to highlight the meaning of the words "right-of-way" in a railroad deed. A second version has added emphasis to highlight the meaning of an exception of a right-of-way in a deed. The third version is unedited.
The portions of this decision that deal with the meaning of the words "right-of-way" in a railroad deed are in dark red font. Further emphasis is made by use of bold font and bold italic font.
View Zobrist v. Culp (1977) with emphasis given to the meaning of an exception of a right-of-way in a deed in a deed.
View the unedited version of Zobrist v. Culp (1977).
Superior Court: The Superior Court for Whatcom
County, No. 48567, Marshall Forrest, J., on October 31,
1975, granted the plaintiffs motion for summary judgment.
Court of Appeals: The court holds that the railroad's
interest in the land was an easement, not a fee interest,
finds that a genuine issue of material fact exists relating to
the operation or nonuse of the track and that entry of the
summary judgment was improper. The judgment is
Lycette, Diamond & Sylvester, Lyle L. Iversen, Howard
E. Richmond, Jr., Asmundson, Rhea & Atwood, and David
E. Rhea, for appellants.
Sam Peach, for respondent.
[As amended by order of the Court of Appeals October
12, 1977, deleting directions that the opinion should not
PER CURIAM.-The defendant-railroaders appeal from a
summary judgment quieting title to real property in the
plaintiff-landowner. Title was quieted to a portion of the
railroad right-of-way of the defendant Cascade Recreation,
Inc. (now known as the "Lake Whatcom Railway Company")
where it passes through land owned by the plaintiff.
The trial court determined that the right-of-way
is an easement, and has ceased because the defendants
have failed to meet the conditions of the original grant
requiring the running and operation of a railroad [not
cease] for a period of more than twelve consecutive
months . . .
The landowner originally filed a complaint in March 1974
in which it was alleged that the defendant-railroad caused
a fence separating the plaintiffs property from that owned
by the defendant to be destroyed. The fence had been
constructed by the plaintiff to be a boundary between her
property and the Burlington Northern right-of-way and
had been there over 40 years. The complaint asked the
court to establish the boundary as the line where the fence
existed and to quiet title in the plaintiff to all property
lying northerly of the fence. Damages of $500 were also
sought for destruction of the fence, and additional damages
of $5,000 were asked for alleged harassment. Later, the
plaintiff filed an amended complaint alleging that
Burlington Northern did not operate a railroad across these
tracks for over 2 years prior to the defendants taking over
the property; that the defendants used said property as a
tourist facility instead of running and operating a railroad,
and that the defendant tore down the plaintiff's fence.
In 1901, R. J. Watson conveyed a 100-foot right-of-way
by warranty deed to Bellingham Bay and Eastern Railroad
Company over and across the NW 1/4 sec. 26, T. 37 N., R.
4 E.W.M., in Whatcom County, for $100. The deed provided
Said right of way is hereby granted for the purpose of
running and operating a Railroad thereover and the said
first party reserves the right to free access to pass and
repass and go over and return on the said R. R. built and
constructed upon the premises aforesaid to and from the
lands on each side thereof, except when trains are being
operated thereon. Provided always however that if second
party shall at any time cease or fail to use the right
of way herein mentioned and described for the purpose
of running and operating a railroad over the same for the
continuous period of 12 consecutive months then and
from thenceforth this instrument and the estate hereby
granted shall cease and revert to first party.
Early in 1972, the defendant Cascade Recreation, Inc.,
acquired from the Burlington Northern Railroad title to
approximately 5 miles of its branch line of railroad
running from Wickersham to Blue Canyon. The Burlington
Northern is a successor to the Northern Pacific Railway
Company, which for many years had operated a branch line
running from Wickersham to Bellingham. The portion of
railroad acquired by Cascade Recreation, Inc., was a part
of that branch line. The Burlington Northern obtained
approval from the Interstate Commerce Commission for the
abandonment of the branch line in 1971, and it actually
ended service July 1, 1971. Until that date, the Burlington
Northern maintained stations at the following locations
along the line now owned by defendant: Mirror Lake, Park,
Agate Bay and Larson. Those stations were listed in
Burlington Northern's official list of open and prepay
stations in effect until July 1, 1971, and under applicable
federal law, Burlington Northern was obligated to and did
supply rail service at those stations and over the entire
branch line until that date.
After July 1, 1971, Burlington Northern continued to
operate over the portion of the line acquired by the
defendant as late as February 23, 1972, and there was a
timetable in effect showing this area as an operating
subdivision until July 11, 1972. The track was maintained
at all times and not removed. The records of Burlington
Northern show that trains for which train orders were issued
operated on November 23 and 24, 1971, and December 2, 3
and 13, 1971.
The chief dispatcher for Burlington Northern stated,
after examining the records for 1970 and 1971 over the
Wickersham to Bellingham route, that there was a train
which used the tracks on June 5, 1970, and then no other
trains were run over this route until November 23, 1971.
The trains that operated in November and December of
1971 were work trains to pick up the tracks from just north
of Park to Bellingham. An adjoining property owner had a
fence built across the tracks next to the plaintiff's
property from May 1971 to May 1972, so that no trains or
maintenance equipment could have used the right-of-way
during that time.
The defendant Cascade Recreation, Inc., began operating
railroad equipment over the line in May of 1972 and has
operated continuously since. As late as March of 1972,
Burlington Northern freight cars stood on a siding in
section 26 in the area of plaintiffs property. The defendants
now operate trains pulled by a steam locomotive, and
passengers ride in regular railroad coaches formerly operated
on the Burlington Northern. The operation is for public use
and the conveyance of persons and property for hire. On
summer weekends trains are run on a regular schedule and
at other times when business warrants. The defendants
maintain a ticket office at Park, Washington, and service
is available from Burlington Northern which can provide
direct connection with its existing trackage. The defendants
state that their railroad is over 4 miles long and only about
400 feet of it passes through the plaintiff's property.
The plaintiff asserts that the defendant's rail line
extends from Wickersham 3 1/2 miles westerly to Park and
then 1/4 mile northerly to Blue Canyon City, and that it
dead-ends at each end and there is no connection with any
other railroad. They assert it is a recreational, sightseeing
railroad that carries sightseers on summer weekends and no
freight, and does not interconnect with anything. They said
that the Wickersham station closed in 1958, and there have
been no buildings or stations or ticket agents at Park,
Mirror Lake, Agate Bay or Larson for over 20 years.
The motion was not argued on a stipulation that the
matter could be decided on summary judgment. The record
does not support that conclusion. The affidavits do not
relate to the circumstances or inducements under which the
original deed of property was given to Bellingham Bay and
Eastern Railway Company, and there is no showing as to
the motives of the parties to that transaction. There is no
evidence in the record that the line is now operated as an
excursion railroad for sightseeing and entertainment. The
defendants assert that the record contains no evidence of
the intention of the original grantor, but that historical
records show that the Bellingham Bay and Eastern Railroad
Company in 1901 was a local logging road not connected
with any interstate carrier, and that it was built to
serve the Blue Canyon Mine. The defendants state that the
historical records also show that the Bellingham Bay and
Eastern at the time of the original deed was dead-ended
short of Wickersham and connected to a streetcar line at
Fairhaven, and that there is no inference from any of the
circumstances of the original purchase that the operation of
the railroad had to be connected to an interstate carrier.
The defendants submit that there is now a permanent
connection at Wickersham and that the railroad, is used for
hauling logs over its tracks for delivery to the Burlington
Northern, and that the forfeiture which the plaintiff seeks
would ruin the railroad by blocking passage in the middle
of the line.
We will identify the defendant railroad operators as
the "railroaders" and the plaintiff landowner as the
"landowner" hereafter for ease of identification.
What are the property rights of the parties?
The railroaders assert that (a) the landowner never
acquired any property rights in the 100-foot right-of-way
conveyed to the railroad, and (b) Watson, the original
grantor, conveyed more than a mere easement to the
railroad. The basis stated for this argument is that by
"excepting" the 100-foot right-of-way from the conveyance
to Custer, instead of conveying the land "subject to" the
right-of-way, the original grantor, Watson, never conveyed
the fee to the land within the railroad right-of-way; and
the conveyances to the railroad from Watson and to Custer
from Watson specified the exact boundaries of the railroad
right-of-way, thereby raising it to a more substantial
property right than an easement.
[1, 2] The instruments of conveyance should reflect the
intention of the parties. Gold Bar v. Gold Bar Lumber Co.,
109 Wash. 391, 393-94, 186 P. 896 (1920), held:
[T]he intent of the parties must primarily be gathered
from a fair consideration of the deed, and the language
employed therein should be consistent with the terms of
the deed, including its scope and subject-matter; that the
object, in construing the deed, is to ascertain the intention
of the parties, especially that of the grantor; that
some meaning should be given to every word, clause and
expression, if it can reasonably be done and if it is not
inconsistent with the general intent of the whole
instrument, so that the deed may operate according to the
intention of the parties; . . .
In 6 G. Thompson, Commentaries on the Modern Law of Real
Property SS 3090, at 773 (repl. ed. 1962), it is stated:
An exception is the withholding from the operation of
the deed of something existent which otherwise the deed
would pass to the grantee.
Accord, Duns v. Ephrata, 14 Wn.2d 426, 430, 128 P.2d 510,
134 P.2d 722 (1942). The conveyance of a fee simple interest
with a clause excepting an easement previously deeded to
a third party, therefore, conveys to the grantee all the
grantor's rights and interests in the land, yet compels
the grantee to refrain from acting in a manner inconsistent
with the rights of the third party in the land as described
in the exception.
 The landowner asserts the grantor, Watson,
excepted a right-of-way from her conveyance to Custer in
plain language. Watson, by this conveyance, granted her
200 acres to Custer and then added "except the right-of-way
one hundred (100) feet wide through above described
property deeded to the Bellingham Bay & Eastern Railroad
Company . . ." This "right-of-way" is the same term used
in the conveyance to the railroad. That deed read in part:
Grant Bargain Sell Convey and Confirm the free and
uninterrupted use of for and in a right of way . . . The
right of way herein designated being 50 feet on each side
. . . Said right of way is hereby granted for the purpose
of running and operating a Railroad . . .
No reference was made in the deed to the railroad of a
grant of the fee. As stated in Swan v. O'Leary, 37 Wn.2d 533,
537, 225 P.2d 199 (1950):
[W]e adopted the rule that when the granting clause of a
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.
Accord, El Dorado & Wesson Ry. v. Smith, 233 Ark. 298,
344 S.W.2d 343, 344 (1961); Glendora v. Faus, 148 Cal.
App. 2d 920, 307 P.2d 976, 980 (1957); Askew v. Spence,
210 Ga. 279, 79 S.E.2d 531, 532 (1954); Ross, Inc. v. Legler,
245 Ind. 655, 199 N.E.2d 346, 348 (1964); Maryland &
P.R.R. v. Mercantile-Safe Deposit & Trust Co., 224 Md.
34, 166 A.2d 247, 248-49, 95 A.L.R.2d 463 (1960); Bode v.
Flobert Indus., Inc., 197 Neb. 488, 249 N.W.2d 750, 753
(1977); City Motel, Inc. v. State ex rel. Dep't of Highways,
75 Nev. 137, 336 P.2d 375, 377 (1959); Fleck v. Universal-
Cyclops Steel Corp., 397 Pa. 648, 156 A.2d 832, 834-35
(1959); Rio Bravo Oil Co. v. Hunt Petroleum Corp., 439
S.W.2d 853, 859 (Tex. Civ. App. 1969), rev'd on other
grounds, 455 S.W.2d 722 (Tex. 1970); Annot., 6 A.L.R.3d
973, 1013 (1966); 65 Am. Jur. 2d Railroads SSSS 73, 75, 77
The fact that the exact boundaries of the right-of-way
were set out does not outweigh the express intent of the
grantor to convey only a right to use the land, not the
The subject matter of both the deed to the railroad and
the exception in the conveyance to Custer is described as
a "right-of-way one hundred (100) feet wide." It has been
To except certain property from a lease or deed of
conveyance, which otherwise would carry all the land, words
of exception must be as definite as those required to
convey title and if not so the whole property passes.
6 G. Thompson, Commentaries on the Modern Law of Real
Property SS 3092, at 796 (repl. ed. 1962). The grantor here
excepted a right-of-way amounting to an easement from
the grant. No reference was made in the conveyance to
Custer of an exception of the fee to the 100 feet. The
railroad received an easement from Watson and nothing more.
The landowner's predecessor in interest, Custer, on the
other hand, received a fee interest in the land and could use
it in any way he saw fit, restricted only in that he could
not use the 100-foot wide strip in a manner inconsistent with
the existing rights of the railroad to pass over it.
Scott v. Wallitner, 49 Wn.2d 161, 299 P.2d 204 (1956),
does not stand for the proposition that Watson, by excepting
the right-of-way from the deed to Custer, never conveyed
the fee to the land within the right-of-way. In Scott v.
Wallitner, supra at 164, the court explicitly recognized:
It will be noticed that in none of these transactions
was there a grant of a right of way for the purpose of
building a railroad thereon. Here the Ebey Logging
Company purchased several tracts of land. As a part of
its operations, it built and operated a logging railroad
thereon. It carved the right of way out of its own lands.
Mouat v. Seattle, Lake Shore & E. Ry., 16 Wash. 84, 85, 47
P. 233 (1896), also cited by the railroaders, dealt with a
deed that did not contain a condition that if the land
should cease to be used for railroad purposes for any
particular length of time it would revert to the underlying
ownership. The case before us, contrary to both the Scott
and Mouat decisions, involved both a grant of a right-of-way
for the purpose of building a railroad, and a specific
limitation on that grant, that if at any time the railroad
should "cease or fail to use the right of way . . . for the
purpose of running and operating a railroad . . . for the
continuous period of 12 consecutive months . . . the estate
thereby granted shall cease and revert to the first party."
What does "running and operating a railroad"
The landowner advocates a narrow definition of "running
and operating a railroad." She asserts that in order to fit
within the "running and operating a railroad" language of
the deed, trains must be run over the property in question,
and that neither the appearance or intent to operate, the
occasional storage of cars on the right-of-way, nor operating
on other parts of the same rail system will be sufficient
to amount to "operating" a railroad over the right-of-way
in question if no trains are run over it. A number of courts
have interpreted similar clauses this narrowly. See Gill v.
Chicago & N.W. Ry., 117 Iowa 278, 90 N.W. 606 (1902);
Hickox v. Chicago & C.S. Ry., 94 Mich. 237, 53 N.W. 1105
(1892); Seventy-Ninth St. Improvement Corp. v. Ashley,
509 S.W.2d 121, 123 (Mo. 1974); Schuermann Enterprises,
Inc. v. St. Louis County, 436 S.W.2d 666, 668 (Mo. 1969).
The railroaders assert, on the other hand, that the
"running and operating a railroad" limitation in the deed
merely sets out a requirement that the railroad may not
intend to abandon the right-of-way and yet still retain it.
Faced with a question of liability of a railroad for killing
livestock, the court in Chicago, K. & W Ry. v. Totten, 1 Kan.
App. 5587 567, 42 P. 269, 272 (1895), defined "operating"
a railroad as follows:
Now, operating means acting, exerting some agency or
power; and while the term "operating," when used with
respect to a railroad, may have come to possess a distinctive
meaning, yet it would seem that a fair construction
of the statute would be that whenever a railroad company
runs its engines and cars upon its line of road, it is
operating it. If it uses it for purposes of general traffic,
then it may be said to be in full operation; and if, when
part of the road is built, trains are being run over that
portion of the road conveying material for the extension
of the line, still it may very consistently be said that the
portion of the line built is being operated for construction
purposes. In either event the company would be operating
Other courts, faced with the question as to whether a
railroad is "operating" on or has abandoned a right-of-way,
have adopted an activity-oriented definition of "operating"
similar to that in the Totten case. Under this definition a
failure to actively operate can amount to nonuse and
abandonment of a right-of-way if the granting instrument or
an applicable statute so provides. In Atlantic Coast Line
R.R. v. Sweat, 177 Ga. 698, 699, 171 S.E. 123, 129 (1933),
the conveyance to the railroad read:
to have and to hold to said railroad company so long as
they, their successors and assigns, shall maintain and use
said road; but to revert to the said party of the first part
whenever said road shall be abandoned."
The railroad argued that nonuse of its right-of-way did not
constitute abandonment. The court disagreed and stated at
Upon a construction of the whole instrument with a view
of ascertaining the intention of the parties, a failure to
"maintain and use said road" as above defined would
constitute an abandonment within the purview and
meaning of the particular agreement. While nonuser
alone will not ordinarily constitute an abandonment, the
parties to the grant here under construction virtually
contracted that a nonuser would amount to such. . . .
The language above quoted was the equivalent of a
statement that the grantees and its successors would
have the right to use the strip of land for a right of way
so long as "they maintained and used said road," but no
longer. The agreement thus created a conditional limitation
the expiration of which would ipso facto terminate the
estate. . . . After the happening of such event, a new
occupancy by the grantee, or a successor, would not
reinvest the occupant with title.
In McClain v. Chicago, R.L & P. Ry., 90 Iowa 646, 57
N.W. 594 (1894), the court pointed out that the existence
of a statute providing for reversion to the grantor if a
right-of-way granted to a railroad was not used or operated
for a period of 8 years established a different test for
abandonment than if no statute existed. It held:
Without the statute, to constitute abandonment there
must have been a permanent cessation to use; that is, a
cessation to use, with an intent not to resume the use.
Under the statute, mere nonuser for eight years constitutes
abandonment, regardless of the intention of the
McClain v. Chicago R.I. & P. Ry., supra at 648.
The term "running and operating a railroad" in the
Watson deed must be interpreted in conjunction with the
circumstances before us. The limiting language of the
Provided always however that if second party shall at
any time cease or fail to use the right of way herein
mentioned and described for the purpose of running and
operating a railroad over the same for the continuous
period of 12 consecutive months . . . the estate hereby
granted shall cease and revert to first party.
The presence in the deed of this explicit limiting language
takes this case out of the line of abandonment cases the
railroader has cited as authority that contain no such
language in their granting provisions. Had the Watson grant
been for a right-of-way and limited to "railroad purposes"
with no other stipulation as to any specific kind or
frequency of activity, the test for abandonment would have
been more stringent. See generally Annot., 95 A.L.R.2d
468, 471-79 (1964). In the present case, by stating "if
second party shall at any time cease or fail to use the right
of way . . . for the purpose of running and operating a
railroad over the same for the continuous period of 12
consecutive months," the grantor Watson set out exactly
what would amount to abandonment. See Gill v. Chicago &
N.W. Ry., supra.
We agree with the landowner that where conditional
language used by parties to a right-of-way conveyance clearly
evidences their mutual intention that the grantee-railroad
actively utilize the privilege granted it in the easement,
sham activity performed for the sole purpose of creating a
colorable use cannot be said to fit within legitimate railway
purposes contemplated by the original grantor and grantee
of the easement. Gill v. Chicago & N. W Ry., supra. The
parties to the Watson deed, however, did not limit their
definition of actively "running and operating a railroad"
solely to the physical passage of trains over the property,
nor did they put any limitations on how the railroad using
the right-of-way must operate. The only limitation placed
in the deed is that the grantee must not "at any time cease
or fail to use the right of way . . . for the purpose of
running and operating a railroad over the same for the
continuous period of 12 consecutive months."
 The deed does not contain a limitation on the type
of railroad to be operated over the right-of-way, or the
extent of what could be considered to be railroad purposes.
We will not speculate upon the meaning of the deed where
the deed is silent on a particular subject. See Vavrek v.
Parks, 6 Wn. App. 684, 690, 495 P.2d 1051 (1972). We agree
with the statement found in Mitchell v. Illinois Cent. R.R.,
384 Ill. 258, 264, 51 N.E.2d 271, 274, 149 A.L.R. 369 (1943),
Railroad purposes include such a variety of uses as
changes in circumstances may bring about, depending
upon the facts in each case. The use, if reasonably
necessary, is generally sustained.
We hold that to run and operate a railroad in accordance
with the terms of the deed granting a right-of-way
easement for railroad purposes and avoid a nonuse stipulation,
a railroad must actively pursue some legitimate course of
action which directly or indirectly contributes to the safe,
economical and efficient operation of its road. Mitchell v.
Illinois Cent. R.R., supra; McSweyn v. Inter-Urban Ry.,
256 Iowa 1140, 130 N.W.2d 445, 448 (1964). See also
Behlow v. Southern Pac. R.R., 130 Cal. 16, 62 P. 295, 296
(1900) (sporadic operation of gravel trains replacing the
regular operation of a passenger train was sufficient to
satisfy the "railroad purposes" condition of the grant);
Tompkins v. Atlantic Coast Line R.R., 213 Ga. 48, 96
S.E.2d 603, 605 (1957) (use of the easement as a side track
to discharge and receive freight and not as a main line
still satisfied the railroad purposes requirement for the
easement); Anderson v. Interstate Mfg. Co., 152 Iowa 455,
132 N.W. 812, 813 (1911) (use of the easement for a warehouse
to facilitate shipments on the railroad was not misuse of
the easement); Rombauer v. St. Louis-San Francisco Ry.,
225 Mo. App. 78, 34 S.W.2d 155, 156-57 (1931) (use of the
right-of-way for construction of bunkhouses for maintenance
crews fell within the railroad's operating purposes);
Hodges v. Atlantic Coast Line R.R., 196 N.C. 66, 144 S.E.
528, 529, 59 A.L.R. 1284 (1928) (construction of houses
for maintenance crews on the easement was necessary to the
operation of the railroad's business); 65 Am. Jur. 2d Railroads
SS 108 (1972). The railroaders' current operation of a full
sized engine and passenger cars fits this definition. The
question as to whether some railroad purpose was served at
least once every 12-month period, including the period
prior to defendant's initiation of his present operation,
raises an additional issue.
Does a genuine issue of material fact exist as to
whether the railroaders or their predecessors failed to
operate a railroad over the right-of-way in question
for a continuous period of 12 consecutive months?
The railroaders assert there was no failure to actively
operate a railroad over the right-of-way in question for a
continuous period of 12 months, and that therefore the
granting of a summary judgment was improper. This
assertion is based on the following propositions:
1. Burlington Northern published tariffs and maintained
four stations along the Bellingham-Wickersham route until
July 1, 1971, and was not required to have buildings or
agents permanently assigned to any of those four stations;
2. Burlington Northern published a timetable in November
1971 showing this line to be an operating subdivision,
and this timetable was not superseded until July 1972;
3. Burlington Northern at all times until its official
abandonment of the line in 1971 (a) was obligated under federal
law to provide rail service, (b) held itself out as being
available for such service, (c) never used the right-of-way
in any manner inconsistent with its continued existence;
4. No 12-month lapse occurred between July 1971 when
the I.C.C. allowed Burlington Northern to abandon the line
and the railroaders' initial opening of operations in May
5. Burlington Northern's records show that trains for
which train orders were issued operated in November and
December of 1971 on the right-of-way in question;
6. Burlington Northern had freight cars on a siding in
the area of plaintiff's property as late as March 1972;
7. The railroaders began operating the Lake Whatcom
railroad, consisting of a full sized engine and passenger
cars, in May 1972 and continue to so operate the railroad;
8. The railroaders' train runs on a regular schedule on
weekends in the summer;
9. The railroaders' current recreational railroad is a
10. The operation of the railroad falls within the definition
of operating a railroad (a) as used by the Washington
Public Service Commission, and (b) as defined under the
Federal Railroad Safety Act of 1970;
11. The railroader could get service from Burlington
Northern if it was applied for.
12. The railroaders can directly connect with existing
trackage and will accept shipments from the public if
13. The landowner failed to present evidence showing
that motor cars, high-rail trucks or other rail equipment
used in track or communication maintenance did not
"operate" over the line in question every 12 months;
14. Other Burlington Northern employees might
contradict evidence in the landowner's affidavits; and
15. The track over the property in question was
maintained at all times.
[5, 6] The purpose of a motion for summary judgment
pursuant to CR 56 is to examine the sufficiency of the
evidence behind the plaintiff's formal allegations in the hope
of avoiding unnecessary trials where no genuine issue as to
a material fact exists. Morris v. McNicol, 83 Wn.2d 491, 519
P.2d 7 (1974); Barovic v. Cochran Elec. Co., 11 Wn. App. 563,
524 P.2d 261 (1974). A material fact is one upon which
the outcome of the litigation depends in whole or in part.
Morris v. McNicol, supra; Amant v. Pacific Power & Light
Co., 10 Wn. App. 785, 520 P.2d 181 (1974). The motion will
be granted only if after viewing all the pleadings, affidavits,
depositions, admissions and all reasonable inferences drawn
therefrom in favor of the nonmoving party, a trial court
decided (1) that there is no genuine issue as to any material
fact, (2) that all reasonable persons could reach only
one conclusion, and (3) that the moving party is entitled to
judgment as a matter of law. LaPlante v. State, 85 Wn.2d 154,
531 P.2d 299 (1975); Wilber Dev. Corp. v. Les Rowland
Constr., Inc., 83 Wn.2d 871, 523 P.2d 186 (1974);
McDonald v. Murray, 83 Wn.2d 17, 515 P.2d 151 (1973);
Ciminski v. Finn Corp., 13 Wn. App. 815, 537 P.2d 850
(1975). A nonmoving party attempting to preclude a
summary judgment may not rely on speculation, argumentative
assertions that unresolved factual matters remain, or in
having its affidavits considered at their face value, for
upon the submission by the moving party of adequate affidavits
the nonmoving party must set forth specific facts that
sufficiently rebut the moving party's contentions and disclose
that a genuine issue as to a material fact exists. American
Linen Supply Co. v. Nursing Home Bldg. Corp.,
15 Wn. App. 757, 551 P.2d 1038 (1976); Ashwell-Twist Co. v.
Burke, 13 Wn. App. 641, 536 P.2d 686 (1975); Bates v.
Grace United Methodist Church, 12 Wn. App. 111, 529
P.2d 466 (1974); Blakely v. Housing Auth., 8 Wn. App. 204,
505 P.2d 151 (1973).
 The landowner presented affidavits in support of the
motion for summary judgment showing that
Burlington Northern operated one or more trains over
said Wickersham to Bellingham route each day Jan. 1st
thru Mar. 16, 1970 and on June 4th and 5th of 1970 and
on November 23rd, 24th, 1971, and December 2nd, 3rd
and 13th, 1971, and at no other times according to the
records of Burlington Northern Railroad. That said records
ordinarily reflect the operation of trains over the
track involved and no other track usage by trains is
indicated from the operating records . . .
The fact that the landowner did not show that motor cars,
high-rail trucks or other rail equipment used in track or
communication maintenance did not operate over the line
every 12 months will not defeat the motion for summary
judgment, for the railroaders did not set forth specific
factual allegations showing such vehicular activity actually
did take place as required by CR 56. Similarly, the fact
that (1) Burlington Northern held itself out to be "operating"
on the right-of-way, (2) that the railroaders could get
service from Burlington Northern if it was wanted, or
(3) that Burlington Northern's and the railroaders'
activities were regulated by the I.C.C., Washington Public
Service Commission, or provisions in the Federal Railroad
Safety Act of 1970, is not dispositive, for these activities
do not amount to an active continuous yearly operation as a
matter of law. Cf. Gill v. Chicago & N. W. Ry., 117 Iowa
278, 90 N.W. 606 (1902).
Evidence was presented that trains operated over the
right-of-way in November 1971, December 1971, and February
1972 following the abandonment of the track pursuant
to an I.C.C. authorization in July 1971. The crucial
12-month period covers not only the time following the
I.C.C. abandonment ruling, but also any previous period.
The landowner has offered uncontroverted evidence of a
period of nonuse by trains of over 17 months. While not
controverting this evidence, the railroaders depend upon
Burlington Northern's obligation to run its trains over
this route until officially relieved of the responsibility
as amounting to "operating a railroad." The I.C.C. may have
a complaint against Burlington Northern for derogation of
its responsibilities, but this will not shield the Burlington
Northern's 17-month period of inactivity from amounting
to a violation of the limitations in the deed. See
Seventy-Ninth St. Improvement Corp. v. Ashley, 509 S.W.2d
121, 123 (Mo. 1974).
 The railroaders did not rebut specifically the
contentions that no trains were run over the right-of-way,
but they did present evidence that the line and stations
along it had been maintained throughout the period in question.
This raises an inference that the track was "used" in that
it was operable during the June 1970 through November 1971
period in question. Keeping its roadbed and tracks in good
repair is a duty of the railroad, Earley v. Hall, 89 Conn.
606, 95 A. 2, 4 (1915); Hodges v. Atlantic Coast Line R.R.,
196 N.C. 66, 144 S.E. 528, 529, 59 A.L.R. 1284 (1928), and
directly "contributes to the safe, economical and efficient
operation of its road." The fact that the landowner offered
evidence which, if believed, would show that (1) the track
had not been maintained, (2) a fence was built across the
track immediately to the east of plaintiffs property in May
1970 and was left undisturbed for over a year, and (3) that
a slide occurred covering the tracks and was not removed
during the period in question, will not detract from the
inference raised which creates a material issue of fact. The
railroaders, as the nonmoving party, are entitled to have all
reasonable inferences drawn in their favor. CR 56.
The existence of a genuine issue of material fact on the
question of whether the railroaders or their predecessor in
interest, Burlington Northern, ceased or failed to use the
track across the property in question for railroad purposes
during the June 5, 1970, to November 23, 1971, period,
requires the cause to be remanded for trial.