Nature of Action: A landowner sought to quiet title to
a railroad right-of-way based upon a provision in the grant
requiring a reversion if the railroad failed to use the
right-of-way "for the purpose of running and operating a
railroad" for a 12-month period.
Superior Court: The Superior Court for Whatcom
County, No. 48567, Marshall Forrest, J., entered a
judgment in favor of the landowner on May 12, 1978.
Court of Appeals: The court reversed the judgment at
26 Wn. App. 86, holding that certain inspections and the
use of an inspection car constituted sufficient use of the
right-of-way to preclude reversion.
Supreme Court: Holding that more than 1 year of
nonuse of the right-of-way as defined by the grant had
been proved, the court reverses the decision of the Court of
Appeals and reinstates the judgment.
Sam Peach, for petitioner.
Diamond & Sylvester, by Lyle L. Iversen, for
DOLLIVER, UTTER, and HICKS, JJ., dissent by separate
ROSELLINI, J.-This is a quiet title action brought to
establish the petitioner's right to property claimed by
the respondents as a railroad right-of-way. The deed to
the respondents' predecessors granted an easement which
was limited by the following provision:
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.
A railroad was constructed and operated until a date in
1970, when the then owner of the right-of-way, Burlington
Northern, ceased to run freight or passenger trains on the
branch line that crossed the plaintiff's property. The
Interstate Commerce Commission approved the abandonment of
the line, effective July 1, 1971. Until the date of approval,
the commission required Burlington Northern to furnish
any requested freight service, and it was ready and willing
to do so. However, it received no request for transportation
on this line. Thereafter, some of the tracks were
The respondents, who are railroad buffs, purchased a
portion of the tracks, including those which were laid down
on the easement granted by the petitioner. In May 1972,
they began the operation of a weekend and summer
In the meantime, some activities had occurred on the
tracks. Burlington Northern did some maintenance designed
to keep the tracks in repair for salvage operations.
The respondent Culp also ran "speeder cars" over the
tracks prior to the date of purchase. He did some minor
repairs or maintenance, but none on the petitioner's
property. No passenger or freight trains passed over the
tracks from June 1970 until May 1972, when the respondents'
excursion runs began. Work trains (to dismantle and pick
up tracks) proceeded along the tracks in November and
The trial court granted the petitioner's motion for
summary judgment, finding no material issue of fact and
holding that the easement had been extinguished pursuant
to terms of grant.
The Court of Appeals reviewed that judgment in a per
curiam opinion. Zobrist v. Culp, 18 Wn. App. 622, 570 P.2d
147 (1977). It determined that the rights of the parties
depended upon the words used in the grant of the easement,
rather than upon the common law of abandonment.
The court further recognized that the parties to the grant
of easement here had set out "exactly what would amount
to abandonment." Zobrist, at 634.
The opinion of the Court of Appeals, beginning at page
634, is not free of ambiguity. There is language which might
be construed as holding that mere maintenance, standing
alone, with or without the running of trains, amounts to
"operating a railroad". However, when read as a whole, we
think it can fairly be said to have held only that the
granting of summary judgment was premature, inasmuch as the
question whether trains had operated upon the track had
not been resolved. The court said that, while the railroaders
did not rebut specifically the contention that no trains
were run over the right-of-way, they did present evidence
that the line and stations along it had been maintained
throughout the period in question. If so, the opinion
suggests, an inference could be drawn that the tracks,
being operable, were used.
The cause was remanded for resolution of the factual
issue "whether the railroaders or their predecessor . . .
[had] 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". Zobrist, at 640. The use of
the term "railroad purposes" was erroneous. As the court
had expressly pointed out earlier in the opinion, the deed
did not use that term but rather used the expression "for
the purpose of running and operating a railroad over the
same". The trial court was justified in construing its
duty as that of determining whether the tracks across the
plaintiff's property had been used for the purpose of
operating a railroad.
Upon remand the case was tried to the court, which
found that after June 5, 1970, there was no further train
traffic from Bellingham to Wickersham (the points between
which the line had operated). The court found that after
September 23, 1970, the Burlington Northern had no
further operational use for the Bellingham-Wickersham line,
but did plan to sell a portion of the line, in place, to
the respondents. That sale was consummated on January 25,
1972. Prior to and subsequent to that acquisition, the
respondents performed some inconsequential maintenance
on the line, but none upon or in the vicinity of the
petitioner's property. Burlington Northern speeder car
"inspections" continued until February 1, 1971, but no
maintenance was done by that company. From February 1, 1971
until November 23, 1971, a slide blocked the line at Mile
Post 13 (west of the petitioner's property). That slide was
removed by Burlington Northern in order to enable a work
train to remove rails. That train came from Bellingham and
did not proceed as far east as the petitioner's property.
Based upon these findings, the Superior Court concluded
that no railroad was run or operated upon the petitioner's
property for more than a year; that inspections and salvage
operations conducted by the Burlington Northern did not
constitute "running and operating a railroad," and that
the respondents did not conduct any activities upon the
petitioner's land which constituted the running and operation
of a railroad for a period of more than 12 months.
Again it held that the grant of the easement had
terminated by the express terms of the deed.
Upon a second appeal, the Court of Appeals again
reversed the Superior Court (Zobrist v. Culp, 26 Wn. App. 86,
611 P.2d 1330 (1980)), this time holding that both the
speeder car inspections conducted by Burlington Northern
and inspections made by the respondents prior to and after
their purchase of the tracks amounted to "'use [of] the
right of way . . . for the purpose of running and operating
a railroad". Zobrist, at 90. In reaching that decision,
the court stressed that inspection and maintenance are
"railroad purposes". It found insignificant the fact that no
railroad operation was begun by the respondents until June
In so holding, the court effected a substantial revision
in the instrument, treating it as though it had required the
railroad company to hold and maintain the tracks, rather
than to use them.
 In construing the grant of a right-of-way, it is the
court's duty to endeavor to arrive at and enforce the
intention of the parties. Missouri-Kansas-Texas R.R. v. Freer,
321 S.W.2d 731 (Mo. App. 1958); 74 C.J.S. Railroads SS 81
(1951); 2 American Law of Property SS 8.64 (A.J. Casner ed.
1952); 3 R. Powell Real Property SS 415 (1979). The intent
is to be derived from the whole instrument, and if ambiguity
exists, the situation and circumstances of the parties
existing at the time of the grant are to be considered. 2
American Law of Property, supra; 3 Restatement of Property SSSS
241, 242 (1940); 2 B. Elliott & W. Elliott, Railroads SS 1153
(3d ed. 1921).
The trial court's findings are substantiated by the evidence
and its conclusions give effect to the intent expressed in
the grant of a right-of-way.
The respondents argue that the tracks did not need
repairs on the respondents' property. While there is some
dispute as to that matter, it is not material and may be
The respondents also attach significance to the further
fact which was established at the original trial, that during
part of the period of nonuse, Burlington Northern was
obligated under the Interstate Commerce Commission regulations
or orders to furnish freight transportation over this
route to any person who might request it. However, no use
was made of the tracks in fulfillment of that obligation.
As the Court of Appeals noted in the first appeal of this
case (18 Wn. App. 622), various activities not involved in
the actual operation of freight and passenger trains may be
embraced within the term "railroad purposes". Holding the
track for possible use in case of request for services, or
maintaining the track for future use, or running work trains
or cars over it, may constitute a 'railroad purpose".
Here, the question is not, were the tracks used for a
railroad purpose? but, rather, were they used for the purpose
of running and operating a railroad over the right-of-way?
The extent and duration of the easement is to be determined
from the terms of the grant. Missouri-Kansas-Texas
R.R. v. Freer, supra; 3 R. Powell, supra; 5 Restatement
of Property SS 482 (1944); 1 G. Thompson, Real Property
SS 368 (rev. perm. ed. 1939); 74 C.J.S. Railroads SSSS 81,
84, 85, 92 (1951).
 We are in agreement with the trial court that for a
period of more than 1 year the tracks across the petitioner's
property were not *used* for the purpose of "running and
operating a railroad over the same". To use is not
synonymous with "to hold" or "to maintain". See Webster's Third
New International Dictionary 1078, 1362, 2523 (1966);
Roget's Thesaurus 670, 677, 777 (new ed. rev. 1979). It
means to employ, to put into action or service.
What is the operation of a railroad? A railroad, this court
said long ago in Northern Pac. Ry. v. State, 84 Wash. 510,
147 P. 45 (1915), is a public service transportation corporation.
Its *operating* property is devoted to the public service
of transportation over lines and terminals having a fixed
location. It follows that when a railroad is "operating," it
is furnishing transportation, either freight or passenger, to
That this grant contemplated the continuous operation
of freight or passenger trains over the right-of-way is
manifested not only by the provision for reversion in the
event of nonuse for a 12-months' period, but also by the
statement of purpose contained in the same paragraph, that
purpose being the "running and operating [of] a railroad".
None of the activities of Burlington Northern or of the
prospective purchasers of its interest, during a period of
more than a year, and none of the obligations imposed by
the federal government upon the owner, amounted to use of
the tracks for the operation of freight or passenger trains.
The Court of Appeals erred in reversing the judgment of
the trial court (Zobrist v. Culp, 26 Wn. App. 86, 611 P.2d
1330 (1980)), and that judgment is hereby reinstated.
BRACHTENBACH, C.J., and STAFFORD, WILLIAMS, DORE, and
DIMMICK, JJ., concur.
DOLLIVER, J. (dissenting)-Like the majority, I agree this
case turns on the language of the easement. The easement
was granted "for the *purpose* of running and operating a
Railroad thereover", and would revert to the grantor if the
grantee" 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
It is undisputed that the Interstate Commerce Commission
did not grant authority to abandon the railroad line
which ran over the easement in question until July 1, 1971.
It is further undisputed the defendant operated its first
train over the tracks in question on June 3, 1972. Finally,
it is undisputed that until July 1, 1971, the Burlington
Northern was in the words of the majority "obligated under
the Interstate Commerce Commission regulations or orders
to furnish freight transportation over this route to any
person who might request it." In other words, until July 1,
1971, the only "purpose" for which the right-of-way in
question could have been put to use by the grantee
(Burlington Northern) was "running and operating a Railroad".
The fact that no trains ran over the right-of-way from
June 5, 1970 to July 1, 1971 is immaterial. The instrument
relied upon by the majority does not say trains had to run
or operate over the right-of-way, only that it had to be
used for the *purpose* of running and operating a railroad.
Given the Interstate Commerce Commission regulations,
there is no escaping that the only purpose for which the
right-of-way could be used was for running and operating
It is clear from the language of the easement that the
parties contemplated a reversion to the grantor if the
property was not used for the purpose of running and operating
a railroad for more than 12 months. There is nothing in the
easement to indicate the limitation of "12 consecutive
months" was a requirement that trains in fact run on the
track-only that the right-of-way must be used for that
purpose. When that was the only purpose for which the
right-of-way was in fact and in law available until July 1,
1971 and when railroad operations were resumed by June 3,
1972, it is apparent to me the requirements of the easement
were met by the Burlington Northern and its successor, the
Although I would use other reasoning, I would affirm the
Court of Appeals.
UTTER and HICKS, JJ., concur with DOLLIVER, J.
Reconsideration denied July 10, 1981.