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Bill Blakney Memorandum, September 17, 1997:
Corruption in the King County Prosecutor's Office

An Analysis by John Rasmussen

Please read a disclaimer for the statements I make on this website accusing judges, politicians and activists of criminal actions.



INTRODUCTION:

        In the late 1990's, King County Prosecutor Norm Maleng and the leadership of King County, Washington, participated in the East Lake Sammamish federal tax fraud scheme. In order to cover-up their participation in the crime, Norm Maleng and his staff manufactured a legal excuse for the County's actions. This excuse is a legal argument that I've named Norm Maleng's "legal theory". Norm Maleng's "legal theory" contends that the Washington State Supreme Court threw out one hundred years of consistently held legal precedent and established a new rule to construe railroad deeds in Brown v. State of Washington (1996). Norm Maleng's "legal theory" is completely bogus. It's a dishonest legal argument which justifies its contentions by misapplying Brown, ignoring legal precedent, and manufacturing outright lies.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        This analysis of Senior King County Deputy Prosecutor Bill Blakney's 1997 Memorandum explains the County's establishment of Norm Maleng's "legal theory". The dishonest legal argument briefed here was copied in all of King County's briefs involving the 1887 Hilchkanum right-of-way deed to the Seattle Lake Shore and Eastern Railway (SLS&E). More troubling is the adoption of this "legal theory" by the judges in King County v. Rasmussen (2001), King County v. Rasmussen (2002), and Ray v. King County (2004). Most troubling is the refusal of the judges of Ninth Circuit (en banc) and the judges of the Washington State Supreme Court to overturn these criminal decisions.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View a detailed explanation of Norm Maleng's "legal theory", including evidence of its use in legal briefs and judicial opinions.

      Open a photocopy of this Blakney Memorandum in a separate window.



OFFICE OF THE PROSECUTING ATTORNEY
KING COUNTY, WASHINGTON
CIVIL DIVISION

Norm Maleng
Prosecuting Attorney

E550 King County Courthouse
516 Third Avenue
Seattle, Washington 98104
(206) 296-9015
FAX (206) 296-0191

17 September 1997

M E M O R A N D U M

TO:     Faith Holste, Office of Open Space

FROM:     Bill Blakney, Sr. Deputy

SUBJECT:     "Right of Way" deeds, Redmond & Issaquah, former BNSF rail line.

You have requested our opinion whether the above-referenced right of way deeds conveyed fee simple title, or merely an easement, to the railroad.

In the past, "right of way" deeds were frequently construed to convey only an easement. I believe the Washington Supreme Court's October 1996 decision in Brown v. State, 130 Wn. 2d430, has clarified the law in this area. Brown clearly establishes the rule that a deed to a railroad, even though it may convey a right of way, will convey fee simple title unless the deed contains language expressly and clearly limiting the estate conveyed. Brown at page 443. A copy of the Brown decision is enclosed.



    Note from John Rasmussen:

      For reference, open a photocopy of this Blakney Memorandum in a separate window.

        In my experience, when a lawyer from Norm Maleng's office writes that an issue is "clear", or "clearly establishes" something, that there is nothing clear or honest about his statement. Blakney doesn't disappoint in his above paragraph.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        There is no statement in Brown which correlates with Blakney's conclusion that "...a deed to a railroad, even though it may convey a right of way, will convey fee simple title unless the deed contains language expressly and clearly limiting the estate conveyed." (my emphasis) Of course, this is Norm Maleng's "legal theory" which I described and hyperlinked in the introduction above. Since the Brown court repeatedly states that it is construing railroad deeds which grant "land", it is obscene that Blakney claims that Brown was applying its discussion to deeds which grant "rights-of-way". It would be nice if Blakney had provided a citation to substantiate his ridiculous conclusion. Instead he sends the reader to a whole page of the published Brown opinion.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Well, here is the whole page 443 from Brown, which Blakney references above. I'll bet you can't find support for Blakney's ridiculous conclusion that "...a deed to a railroad, even though it may convey a right of way, will convey fee simple title unless the deed contains language expressly and clearly limiting the estate conveyed.".

      "in which the deeds were negotiated, speculating the grantors had little choice but to convey their property by deed given the threat of condemnation. In no way, however, did they intend to grant more than Milwaukee could have acquired through eminent domain, which the property owners claim was an easement, again citing Neitzel. Assuming railroads could acquire easements only through eminent domain at this time, the property owners' interpretation may be reasonable. But equally persuasive is the State's view that the grantors welcomed the Milwaukee and sold their property absent the threat of condemnation. See Ira A. Nadeau, Railroad Situation in Washington, WASH. MAG., Apr. 1906, at 2 ("The coming of the railroads made the settlement of the greater portion of our state possible"); State Roads Comm'n v. Johnson, 222 Md. 493, 161 A.2d 444, 446 (1960) ("It is an historical fact that the construction of the pioneer B. & O. railroad was a highly favored enterprise . . ."). In any event, we are reluctant to accord the context in which the deeds were negotiated much weight, given the uncertainty as to what a railroad could acquire by eminent domain before Neitzel, and the failure of either party to develop the record on this point.

          Weighing the factors outlined in Swan, we conclude construing the deeds to convey fees simple more accurately reflects the intent of the parties, given the form of the deeds and the fact they convey "fee simple title" to definite strips of land given without any limitation or qualification. While the manifest purpose of the deeds is to convey land for railroad lines, railroads have never been prohibited from holding rights of way in fee simple. Morsbach, 152 Wash. at 575. In the absence of language in the deeds expressly and clearly limiting the estate conveyed, the deeds fall squarely within the rule that where there is no language in a deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, it will be construed to convey fee simple title. See Swan, 37 Wn.2d at 536.

          We previously noted that most of the deeds are identical"
      [Open Brown v. State of Washington (1996) at Page 443.]

        The only portion of page 443 of Brown which might have been the basis of Blakney's dishonest statement is the following: (with my emphasis)

          "Weighing the factors outlined in Swan, we conclude construing the deeds to convey fees simple more accurately reflects the intent of the parties, given the form of the deeds and the fact they convey "fee simple title" to definite strips of land given without any limitation or qualification. While the manifest purpose of the deeds is to convey land for railroad lines, railroads have never been prohibited from holding rights of way in fee simple. Morsbach, 152 Wash. at 575. In the absence of language in the deeds expressly and clearly limiting the estate conveyed, the deeds fall squarely within the rule that where there is no language in a deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, it will be construed to convey fee simple title. See Swan, 37 Wn.2d at 536.

        In Blakney's dishonest statement, above, he claims the Brown court was addressing deeds which granted "rights-of-way". But, when the reader goes to page 443 in the Brown decision, he finds that the Brown court was considering only deeds which conveyed "strips of land". The conveyance of "land" in a railroad deed is construed under a different rule than the conveyance of a "right-of-way". Please select these hyperlinks to understand the law that establishes these rules:
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Read and understand the "Railroad Land Granting Rule", with supporting precedent.

      Read and understand the "Railroad Right-of-Way Granting Rule", with supporting precedent.

        It is significant that King County Senior Deputy Prosecutor Bill Blakney states that the Brown court "clarified" the legal precedent used to construe railroad rights-of-way, yet when the reader goes to Brown he finds that Brown simply cited long respected precedential railroad right-of-way decisions for authority, and made no changes and no clarification. I've hyperlinked the Morsbach and Swan citations in the portion of Brown shown above. Use those hyperlinks to go to the place in those opinions that the Brown court is citing, and confirm that Brown observes and respects the precedent held in those opinions, and makes no changes and no clarification.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)



According to Brown, the fact that deeds, such as the ones refered herein, are characterized as right of way deeds, and/or convey rights of way is not dispositive. The term "right of way" is not an express and clear limitation on the estate conveyed to the railroad for the simple reason that a railroad can own a right of way in fee simple as well as an easement. Brown at page 440. "To describe the property as a "right of way" simply begs the question of what interest [the railroad] acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys." Brown at 442.



    Note from John Rasmussen:

        For reference, open a photocopy of this Blakney Memorandum in a separate window.

          The above paragraph is a great example of why folks hate lawyers. The term "right-of-way" has two different meanings in common law. Blakney uses the term "right-of-way" above, but doesn't distinguish which meaning he intends. The result is a very dishonest set of statements that appear to support the "legal theory" which the King County Prosecutor had devised to hide his participation in the East Lake Sammamish federal tax fraud scheme.
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


    BACKGROUND:


    The term "right-of-way" has two legal meanings.

          In common law, the term "right-of-way" may be used to describe the right granted by a party to allow another party to cross his land. This grant of a right of passage is an easement, in legal terms. This is the original definition of the term "right-of-way". But, over time the term "right-of-way" has taken on a second legal meaning. As railroads obtained right-of-way easements, it became common to refer to the strip of land occupied by the easement as the "right-of-way". Also, when railroads obtained land in fee simple and then installed their tracks on their own land, the strip of land the railroads used to establish their tracks has also been referred to as a "right-of-way". In this last case, no "right" of passage was granted by another party to the railroad. This second legal meaning of "right-of-way" refers to the strip of "land" itself, and not the right to cross. In order to determine which meaning should be applied to the term "right-of-way" in a deed, the courts observe where and how the term appears in the deed. Then, the courts use the precedent established in common law to apply the correct meaning.

        View forty-four common law citations which explain the meaning of the words "right-of-way" in railroad deeds.

        Review the "Railroad Land Granting Rule", with supporting precedent.

        Review the "Railroad Right-of-Way Granting Rule", with supporting precedent.

          In Blakney's paragraph, directly above, he used the term "right-of-way" out of the context of its use in a deed. His hope was to have the reader not be aware of the need to define the term in reference to its common law understanding. Depending on which common law definition of "right-of-way" the reader applies to Blakney's use of the term in the above paragraph, his statements are either complete and utter lies, or they are all perfectly correct. If Blakney had any character and honesty, he would have clarified which definition of "right-of-way" he intended with each use. But, Blakney wasn't trying to clarify anything. Just the opposite.
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Read a study of the meaning of the term "right-of-way" in a railroad deed.

    The Brown court was not confused about the two different legal understandings of the term "right-of-way".

          Blakney failed to cite the portion of Brown which explains this issue. Blakney didn't, but I will. The following citation from Brown sheds light of the misunderstanding Blakney is attempting to create in his above paragraph. (with my emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property."
        [Brown v. State of Washington (1996)]

          In the above citation, the references to Morsbach and Harris are hyperlinked so the reader can confirm that Brown relied on established precedent, and wasn't inventing new law as Blakney claims in this memorandum.

          Where and how the term "right-of-way" is used in a deed determines which meaning is intended. When a "right-of-way" is conveyed to a railroad in the granting clause of a deed, the term "right-of-way" had always been held to be an easement in Washington State common law. This is the "Railroad Right-of-Way Granting Rule" which I describe in the reference section of this webpage. The above citation from Brown is just one of the many citations which establish this common law rule.

          The Washington courts have always found that the grant of a "right-of-way" to a railroad expresses a specific purpose and restricts the deed to an easement. It would be redundant for the deed to also need additional "language expressly and clearly limiting the estate conveyed", as Blakney dishonestly claims in this memorandum. The purpose of the deed is expressed in its granting language and needs no additional statement to be found an easement.
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          The situation in which a railroad deed needs additional "language expressly and clearly limiting the estate conveyed", in order to be found an easement, is only when the deed grants a strip of "land". This is clearly spelled out in Brown, and intentionally misrepresented by Blakney in this memorandum. (This citation with my emphasis)
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        "Weighing the factors outlined in Swan, we conclude construing the deeds to convey fees simple more accurately reflects the intent of the parties, given the form of the deeds and the fact they convey "fee simple title" to definite strips of land given without any limitation or qualification. While the manifest purpose of the deeds is to convey land for railroad lines, railroads have never been prohibited from holding rights of way in fee simple. Morsbach, 152 Wash. at 575. In the absence of language in the deeds expressly and clearly limiting the estate conveyed, the deeds fall squarely within the rule that where there is no language in a deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, it will be construed to convey fee simple title. See Swan, 37 Wn.2d at 536.
        [Brown v. State of Washington (1996)]

          All the deeds in Brown conveyed "strips of land". In order to construe these deeds as easements, the Brown court looked for a statement in any part of the deed which limited the deed to "right-of-way" use or stated the purpose of the deed was for "right-of-way" use. These statements are often found in the habendum clause of a deed. Since the Brown court did not find this additional language in the deeds, the court found the deeds conveyed fee simple title. But, this additional language is required only for deeds which grant "land". This is the "Railroad Land Granting Rule" which I describe in the reference section of this webpage.

    The understanding of the term "right-of-way" has changed over time.

          The fact that meaning of the term "right-of-way" has evolved over time is seen in the change of its definition in "Black's Law Dictionary". In 1891, the term "right-of-way" had just one common understanding: an easement. By 1979, Black's recognized that "right-of-way" could be understood in the two different ways that the Brown court describes above. I provide the 1891 and 1979 versions for comparison at the following hyperlink.

        Compare Black's definition of "right-of-way" in 1891 to the definition in 1979.

          The Hilchkanum right-of-way deed, which is the focus of this website, was written in 1887. As shown in the Black's definitions linked above, at that time there was only one common legal understanding for the term "right-of-way": an easement. King County and the judges who construed the Hilchkanum deed refused to consider that fact.
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

    A BREAKDOWN OF THE DISHONEST STATEMENTS IN BLAKNEY'S ABOVE PARAGRAPH:

      "According to Brown, the fact that deeds, such as the ones refered herein, are characterized as right of way deeds, and/or convey rights of way is not dispositive."

            In his above paragraph, Blakney confuses the reader by referring to short citations from Brown, and implying a different meaning for the term "right-of-way" than was intended by the Brown court. Here is Blakney's first sentence in the above paragraph, contracted for clarity in this discussion.

          "According to Brown, the fact that deeds...convey rights of way is not dispositive."

            In this sentence, Blakney is claiming that the grant of a "right-of-way" to a railroad is not an indication of intent to convey an easement. This is an outrageous lie. When "rights-of-way" are conveyed in a deed, the courts have always understood it to be the conveyance of a "right" of passage, or an easement. It is not the grant of land as Blakney would have the reader believe. Please read the fourteen citations below to understand Blakney's dishonesty. It is obvious that Blakney is trying to confuse the reader by applying the wrong legal definition of "right-of-way" in his sentence.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          View fourteen common law citations which hold that the grant of a "right-of-way" to a railroad conveys only an easement.

            As I wrote above, the Brown court was not confused about the dual meaning of the term "right-of-way". I print, again, the citation from Brown that supports this point. (with new emphasis)

          "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property."
          [Brown v. State of Washington (1996)]

            In the above citation, the Brown court recognized the different legal understandings for "right-of-way" and differentiated the deed in Veach v. Culp (1979) from the deeds construed in Brown. The Veach opinion is poison to Blakney' argument because the deed in Veach grants a right of way to a railroad just as the East Lake Sammamish SLS&E deeds which Blakney refers to in this memorandum. In the above citation, the Brown court found that the Veach deed used "'right of way'...in the granting...clause...to qualify or limit the interest granted" (My contraction of the quote is for emphasis.) The granting clause language in Veach is essentially the same as the granting clause language in the ELS deeds which Blakney claims are not easements. Brown does not support Blakney's "legal theory", instead Brown refutes it.

            It's too bad that the Brown court did not discuss the granting language in King County v. Squire (1990). The granting language in Squire's SLS&E right-of-way deed is identical to the ELS deeds that Blakney is claiming convey fee simple title. The Squire court found this same language to "strongly" convey an easement. The court made this observation: (with my emphasis)

          "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."
          King County v. Squire (1990)

            As the reader can see, there were two parts of the Squire deed that the Squire court found revealing of the parties intent to grant an easement. In the citation above, I've emphasized the language in the Squire granting clause. That language was found to "...strongly suggest[] conveyance of an easement..." But, the Squire court found that the reversion statement added by Governor Squire to his habendum indicated his intention to grant an easement, too. The Brown court concentrated on only the Squire habendum in its discussion. It was proper for the Brown court to do this, but it is unfortunate with respect to this discussion that the Brown court did recognize both of the factors in Squire that contributed to the finding of an easement. Since the Squire deed is a SLS&E deed, based on the same form deed written by the Railway lawyers, its importance in construing the SLS&E deeds along East Lake Sammamish is very significant.

          Understand that a comparison of the Hilchkanum and Squire right-of-way deeds to the SLS&E destroys Blakney's argument that the East Lake Sammamish SLS&E form deeds granted fee title.

      "The term "right of way" is not an express and clear limitation on the estate conveyed to the railroad for the simple reason that a railroad can own a right of way in fee simple as well as an easement. Brown at page 440."

            Blakney implies by his second statement in the above paragraph that the term "right-of-way" used by itself in a deed cannot limit the deed to an easement. This is an outright lie. I've discussed this issue above and provide again the citation from Brown which refutes this statement by Blakney. After reading this citation from Brown, the reader will understand that Brown addressed exactly this issue and did not come to the conclusion which Blakney claims. (citation with my emphasis)
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property."
          [Brown v. State of Washington (1996)]

            Brown states that the term "right-of-way" as used in "Swan, Veach, and Roeder" restricts the deed to an easement by the use of "right-of-way" in the granting or habendum clause. Blakney did not reference this portion of Brown because he was lying with his "legal theory", and this Brown citation destroys his argument. To better understand this issue, I provide abbreviated citations (with my emphasis) from Swan, Veach, and Roeder, the three opinions which Brown references for precedent in the citation above. Use the hyperlink attached to each citation to read the full citation in the context of its opinion. Further, I provide a link to fourteen citations from common law precedent that refutes Blakney's statement above that "The term "right of way" is not an express and clear limitation on the estate conveyed to the railroad...". These citations will show that where and how the term "right-of-way" is used in a deed determines its effect. These citations will show that the term "right-of-way" used in the granting clause or habendum does restrict or limit the deed to an easement. In his sentence above, Blakney intentionally lies about this issue
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          "...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..."
          [Swan v. O'Leary (1950)]

          "The parties...describe what was being conveyed: a right-of-way...Language like this has been found to create an easement..."
          [Veach v. Culp (1979)]

          "...language of the deed...describing the conveyance of a right-of-way...we conclude the deed conveyed an easement..."
          [Veach v. Culp (1979)]

          "...land being conveyed as "a right-of-way"...has been found to create an easement..."
          [Roeder v. BNSF (1986)]

          View fourteen common law citations which hold that the grant of a "right-of-way" to a railroad conveys only an easement.

      "'To describe the property as a 'right of way' simply begs the question of what interest [the railroad] acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys.' Brown at 442."

            This shortened and altered quote from Brown, combined with the two other statements in Blakney's above paragraph, takes on a completely different meaning than when the quote is read in the context of its paragraph in the Brown opinion. When read in the context of Blakney's above paragraph, this altered quote implies that the term "right-of-way" in a railroad deed has no effect on the determination of easement or fee. But, when read in the context of its paragraph in the Brown opinion, it simply provides an example of how the term "right-of-way" can be understood in the second of two possible understandings described earlier in the paragraph. This full paragraph from Brown is displayed below. I believe that Blakney is counting on folks not going to Brown to read his citation in context. I've underlined Blakney's "quote" in the citation from Brown, below. Notice that Blakney shortened his citation in a way that misleads the reader to believe Brown was making a blanket statement about all railroad deeds, when instead, Brown was referring to only some of the deeds construed in its opinion. This is dishonest and intentionally misleading. There is a hyperlink at the end this paragraph from Brown which will take the reader to the paragraph's position in the full Brown opinion. (This citation with Blakney's selected words emphasized.)
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

              "In addition to the eminent domain language, the property owners argue references to "rights of way" in about half of the deeds indicate the grant of an easement. The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property. The Eidal deed, for example, states:

            Said Railway Company . . . will permit a telephone wire and an electric light wire to cross its said right-of-way. . . . Before grading is begun Right of way fences shall be built. . . . Said Railway Company is to furnish such facilities for conducting water for irrigation and other purposes under its track and across its Right-of-Way as are reasonable and practicable. . . .

          Clerk's Papers (Brown) at 27. Used in this manner, "right of way" merely describes a strip of land acquired for rail lines; it does not qualify or limit the interest expressly conveyed in the granting and habendum clauses. To point out that the Eidal deed and others describe the property as right of way simply begs the question of what interest Milwaukee acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys."
          [Brown v. State of Washington (1996)]

            When Blakney's statement is put into its context in the full paragraph from Brown, the reader sees that Brown first defines the two legal understandings for the term "right-of-way", and then discusses specific language that applies to only the second legal understanding of the term "right-of-way". Blakney intentionally tries to mislead the reader by implying that there is only one legal understanding for the term "right-of-way", which is the second understanding, and that his shortened/altered citation applies to all railroad deeds. Blakney's shortened/altered citation takes on a completely different meaning when read in the context of its paragraph in the Brown opinion.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            Blakney needed this lie in order to support Maleng's "legal theory" and protect the King County Prosecutor and other officials from prosecution for their part in the East Lake Sammamish federal tax fraud scheme. This is why folks hate lawyers. It is obscene that a lawyer who works for the residents of King County, and is paid by them, would lie like this to harm the very people he is obligated to serve.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Summary:

            There are two legal definitions of the term "right-of-way" in common law. Where and how the term "right-of-way" is used in a railroad deed determines which definition of "right-of-way" applies.

            Blakney misrepresents the discussion and conclusions in Brown by using short references or citations to misinterpret the legal meaning of the term "right-of-way". This misleads the reader as to the actual opinion expressed by the Brown court. He fails to admit that Brown defines two very different meanings for the term "right-of-way". Instead, Blakney implies that there is only one understanding for the term, an understanding which supports Norm Maleng's "legal theory".
            (My statements describing wrongdoing or criminal actions in this summary are a First Amendment expression of my opinion.)

      Reference:

        View a photocopy of the 9-17-1997 Blakney Memorandum

        View Attorney Daryl Deutsch's 10-24-1997 reply to Blakney's 9-17-1997 Memorandum.

        Read a description of the East Lake Sammamish federal tax fraud scheme.

        Read Brown v. State of Washington (1996)



    The single most important facts in interpreting the deeds referenced herein is the lack of limiting conditions attached to the conveyances. An easement will be found where there is an express condition on the conveyance. For example, a grant for "so long as said land is used as a right of way by said railway Company" will create an easement. King County v. Squire Investment Co., 59 Wn.App 888, 801 P.2d 1022 (1990). Other language in railroad deeds that will create an easement include: "for all railroad and other right of way purposes," Roeder Co. V. Burlington N., Inc., 105 Wash.2d 567, 716 P.2d 855(1986), "for the purpose of the Railroad right-of-way..." Swan v. O'Leary, 37 Wash.2d 533,535,225 P.2d 199 (1950), or "so long as the same shall be used for the operation of the railroad," Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357,358, 38 P.1126 (1894). These cases follow the "almost universal rule that in order to make an estate conditional, the words used in the deed must clearly indicate such an intent, either by express terms or by necessary implication from the language used." King County v. Hanson Inv. Co., 34 Wn.2d 112, 119,208 P.2d 113 (1949). Or more specifically:

      A condition will not be raised by implication from a mere declaration in the deed that the grant is made for a special and particular purpose without being coupled with words appropriate to make such a condition.

    19 Am.Jur. 536, Estates, sec/ 71, cited Hanson Inv. Co., at 119.



      Note from John Rasmussen:

          For reference, open a photocopy of this Blakney Memorandum in a separate window.

            Blakney is now making conclusions based on the lies he established in his memorandum's second and third paragraphs, shown above. I'll breakdown this fourth paragraph into parts, and explain Blakney's dishonesty in each instance. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The single most important facts in interpreting the deeds referenced herein is the lack of limiting conditions attached to the conveyances. An easement will be found where there is an express condition on the conveyance."

            This is an absolute lie. In this statement, Blakney is using the discussion and rules which the Brown court used to construe railroad deeds which conveyed "strips of land", and applying this discussion and rules to construe the SLS&E deeds along East Lake Sammamish, which conveyed "rights-of-way". I've discussed this intentional misapplication of the law in the section above. As a refresher, I provide links to the rules used to construe the grant of "land" and the rules to construe the grant of "rights-of-way".
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          Railroad Land Granting Rule: A deed conveying "land" to a railroad grants fee simple title unless there is a statement that the deed is for the purpose of a railroad right-of-way or if the deed is limited to railroad right-of-way use. A statement of right-of-way purpose or limitation will change the grant to an easement.
          [Understand the "Railroad Land Granting Rule", with supporting precedent.]

          Railroad Right-of Way Granting Rule: A deed conveying a "right-of-way" to a railroad grants an easement.
          [Understand the "Railroad Right-of-Way Granting Rule", with supporting precedent.]

            Blakney's above statement refers to "...the deeds referenced herein...". With that statement, Blakney is stating that the East Lake Sammamish deeds which convey a "right-of-way" to the SLS&E must be construed with the rules used in Brown to construe deeds which conveyed "strips of land". All the deeds in Brown conveyed "strips of land", not a "right-of-way". The reader may verify this with the following citation from Brown. (with my emphasis)

              "Weighing the factors outlined in Swan, we conclude construing the deeds to convey fees simple more accurately reflects the intent of the parties, given the form of the deeds and the fact they convey "fee simple title" to definite strips of land given without any limitation or qualification. While the manifest purpose of the deeds is to convey land for railroad lines, railroads have never been prohibited from holding rights of way in fee simple. Morsbach, 152 Wash. at 575. In the absence of language in the deeds expressly and clearly limiting the estate conveyed, the deeds fall squarely within the rule that where there is no language in a deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, it will be construed to convey fee simple title. See Swan, 37 Wn.2d at 536."
          [Brown v. State of Washington (1996)]

            As discussed above, the Brown court differentiated the deeds it construed, which conveyed "strips of land", from deeds which conveyed "rights-of-way" and were found in other precedential opinions, such as Veach. The vast majority of SLS&E deeds along East Lake Sammamish were very similar to the deed construed in Veach. Blakney ignores this critical discussion in Brown. Instead, Blakney persists with his claim that Brown requires "limiting conditions" or "an express condition" in any deed in order to find an easement. This claim is not supported in Brown.

          Open the earlier discussion on this issue, in a separate window, in order to understand Blakney's dishonest misrepresentation of Brown.

            Blakney's statement, that the ELS deeds to the SLS&E must have "limiting conditions" in order to be found an easement, is an outright lie. He is applying the "Railroad Land Granting Rule" to a deed that grants a "right-of-way". In common law, Blakney is required to apply the "Railroad Right-of-Way Granting Rule" to the SLS&E deeds along East Lake Sammamish. The grant of a "right-of-way" to a railroad has always been held to grant an easement in Washington State/Territory common law. So, when a "right-of-way" is granted to a railroad, there is no need have a separate statement of purpose or limitation in order to find an easement.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          View fourteen common law citations which establish and support the "Railroad Right-of-Way Granting Rule".

      "For example, a grant for "so long as said land is used as a right of way by said railway Company" will create an easement. King County v. Squire Investment Co., 59 Wn.App 888, 801 P.2d 1022 (1990). Other language in railroad deeds that will create an easement include: "for all railroad and other right of way purposes," Roeder Co. V. Burlington N., Inc., 105 Wash.2d 567, 716 P.2d 855(1986), "for the purpose of the Railroad right-of-way..." Swan v. O'Leary, 37 Wash.2d 533,535,225 P.2d 199 (1950), or "so long as the same shall be used for the operation of the railroad," Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357,358, 38 P.1126 (1894)."

            In this portion of Blakney's fourth paragraph, he provides citations from Brown, which construed railroad deeds conveying "strips of land", and applies the discussion to the ELS deeds which do not convey "strips of land". This is completely dishonest. In these citations from Brown, the court references the reversion statement in King County v. Squire (1990). When the reader goes to Squire, he finds that the Squire court found that there were two factors in the Squire deed which caused the court to find an easement. The Brown court refers only to the language in the Squire habendum. The following citation from Squire shows that the Squire court recognized that the conveyance of a right-of-way in the Squire granting clause was a strong indication of the intent to convey an easement. This is the "Railroad Right-of-Way Granting Rule". King County v. Squire (1990) is poison to Blakney's discussion because the Squire deed was written to the SLS&E in the same year, with the same granting words, as the deeds which Blakney and the County now claim convey "land". I've provided this citation in an earlier discussion, but repeat it because of its importance in exposing Blakney's dishonesty. (citation with my emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          "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."
          King County v. Squire (1990)

      "These cases follow the 'almost universal rule that in order to make an estate conditional, the words used in the deed must clearly indicate such an intent, either by express terms or by necessary implication from the language used.' King County v. Hanson Inv. Co., 34 Wn.2d 112, 119,208 P.2d 113 (1949). Or more specifically:

        A condition will not be raised by implication from a mere declaration in the deed that the grant is made for a special and particular purpose without being coupled with words appropriate to make such a condition."

      [19 Am.Jur. 536, Estates, sec/ 71, cited Hanson Inv. Co., at 119.]

            Here, Blakney goes to King County v. Hanson Inv. Co. (1949) for help with his argument. He intentionally misquotes Hanson in order to support the dishonest and unsupportable conclusions in his memorandum. It should be noted that Hanson is not a railroad decision. Railroad right-of-way law is a special subset of right-of-way law. Railroads obtain their rights-of-way under authority of their federal or state charters. Railroad rights-of-way are a unique situation in which private companies are given the right of eminent domain. This is a right that is usually reserved for governments. Further, there is a rich amount of railroad legal precedent available for Blakney to reference. Hanson, however, is legal precedent. That said, one phrase in Blakney's citation from Hanson contradicts his argument and conclusion. The critical words from Hanson, which destroy Blakney's argument, are these: "by necessary implication from the language used.". In Washington State common law, it has always been a "necessary implication" that a railroad deed grants an easement when the deed conveys a right-of-way in its granting clause. This is the "Railroad Right-of-Way Granting Rule" which Blakney intentionally ignores in this memorandum. To reemphasize the basis of this rule, I provide again fourteen citations from common law that support this "necessary implication".
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          View fourteen common law citations which show that the grant of a "right-of-way" to a railroad necessarily implies that the grant is an easement.

          Read King County v. Hanson Inv. Co. (1949) to understand that it is not a railroad opinion.

            This dishonest argument relating to Hanson is repeated in King County's legal briefs and in the federal opinions construing the Hilchkanum right-of-way deed to the SLS&E: King County v. Rasmussen. Federal District Judge Barbara Rothstein was clever enough to leave out the portion of the Hanson citation which contradicts her argument. Rothstein provided this more abbreviated quote when she cited Hanson. (Click on the attached hyperlink to go to that position in her opinion.)
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          "The deed must "clearly indicate" an intent to make the conveyance conditional. King County v. Hanson Inv. Co., 34 Wn2d 112, 208 P.2d 113, 117 (1949); see also Brown, 924 P.2d at 912."
          [King County v. Rasmussen (2001)]

            Judge Rothstein is obviously more skilled as a lying lawyer that Blakney. The judge simple shortened the citation from Hanson so that she could more easily misrepresent its meaning. In King County v. Rasmussen, Federal District Judge Barbara Jacobs Rothstein made a habit of using short citations and then misrepresenting the meaning that is understood when the citation is read in the context of its opinion.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Summary:

        In this fourth paragraph of his memorandum, Blakney relies on the lies he established in his previous paragraphs in order to build his dishonest argument.

        Blakney dishonestly applies the rules used to construe deeds which conveyed land in Brown to the ELS deeds, which conveyed rights-of-way. His application of the rules from Brown ignores the precedent established in the "Railroad Right-of-Way Granting Rule".

        Blakney cites Hanson as precedent, but ignores the phrase in the Hanson citation which destroys his point.

        (My statements describing Blakney's dishonesty in this summary are a First Amendment expression of my opinion.)

      Reference:

        View a photocopy of the 9-17-1997 Blakney Memorandum

        View Attorney Daryl Deutsch's 10-24-1997 reply to Blakney's 9-17-1997 Memorandum.

        Read a description of the East Lake Sammamish federal tax fraud scheme.

        Read Brown v. State of Washington (1996)



    In the opposite situation, where "there is no language in the deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, the deed will be construed to convey fee simple title." Brown, at 439-440. The language in the deeds referenced herein lack any conditions, and clearly convey specific strips of land. The deeds convey title unambiguously: "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." Thus, the term "right of way," in and of itself, does not qualify or limit any interest in the property, but merely describes the parcel in question.



      Note from John Rasmussen:

          For reference, open a photocopy of this Blakney Memorandum in a separate window.

            This fifth paragraph of Blakney's memorandum contains more lies. I'll breakdown the paragraph, and explain his dishonesty. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "In the opposite situation, where "there is no language in the deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, the deed will be construed to convey fee simple title." Brown, at 439-440. The language in the deeds referenced herein lack any conditions, and clearly convey specific strips of land."

            A critical factor in construing a railroad deed is to determine whether "land" or "right-of-way" is granted in a deed. Here, Blakney states that the SLS&E deeds which are the subject of this memorandum "...clearly convey specific strips of land.". This is an outright lie. One needs to simply read the deeds to determine whether a "right-of-way" or a "strip of land" is granted. Here is a good example of the deeds at issue: the Hilchkanum right-of-way deed to the SLS&E. This is the deed which is the subject of King County v. Rasmussen and Ray v. King County. Here is the essential wording and a hyperlink to the full deed:
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          The Hilchkanum Right-of-Way Deed to the SLS&E:

          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 Company a right-of-way one hundred (100) feet in width through our land in said County described as follows to wit

          Lots one (1) two (2) and three (3) in section six (6) township 24 North of Range six (6) East.

          Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said railway Company which location is described as follows to wit (legal description)

          And the said Seattle Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.

          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.

          View the full Hilchkanum right-of-way deed to the SLS&E, including a photocopy of the original.

            The Hilchkanum deed was built on a form deed written by the Railway lawyers, and uses the identical granting words which are found in almost all of the other SLS&E deeds along East Lake Sammamish. Above, the reader can verify that the Hilchkanum deed grants a "right of way" to the Seattle Lake Shore and Eastern Railway (SLS&E) in its granting clause. The Hilchkanum deed and almost all of other SLS&E deeds do not grant "specific strips of land" as Blakney dishonestly claims.

            In the introduction at the top of this page, I described a letter written by Bellevue attorney Daryl Deutsch to the members of the King County Council. Deutsch reviewed all the ELS right-of-way deeds at issue in this memorandum, and refuted Blakney's claim that the ELS deeds granted "specific strips of land".

          Read Attorney Daryl Deutsch's 10-24-1997 reply to this Blakney Memorandum. This letter contains his expert opinion that the ELS deeds convey rights-of-way, and are therefore easements.

            This lie that the grant of a "right of way" in the SLS&E deeds "...clearly convey specific strips of land." is repeated in the three dishonest opinions which construed the Hilchkanum deed to the SLS&E. This lie started here, in this memorandum. This lie was briefed by the King County Prosecutor in all of the Hilchkanum lawsuits. It is simply criminal for the judges to adopt this lie in their opinions. Verify this fact at the following hyperlinks.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          Federal District Judge Barbara Rothstein states that Hilchkanum granted a strip of land in King County v. Rasmussen (2001).

          Senior Federal Circuit Judge Betty Fletcher states that Hilchkanum granted a strip of land in King County v. Rasmussen (2002)

          Chief Judge Ronald E. Cox, Court of Appeals Division I, State of Washington states that Hilchkanum granted a strip of land in Ray v. King County (2004).

          Chief Judge Ronald E. Cox, Court of Appeals Division I, State of Washington states, again, that Hilchkanum granted a strip of land in Ray v. King County (2004).

      "The deeds convey title unambiguously: '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.'"

            The Veach court construed a deed with a similar habendum clause. In addition to the habendum, the deed construed in Veach granted a right of way in its granting clause with wording that is similar to the SLS&E form deed. The Veach court found that the grant of a "right-of-way" to a railroad caused the deed to be found an easement.

          "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."
          [Veach v. Culp (1979)]

      "Thus, the term "right of way," in and of itself, does not qualify or limit any interest in the property, but merely describes the parcel in question."

            In his above statement, Blakney is claiming that the term "right-of-way" can only be understood to describe a "parcel" or "strip of land". He is claiming that the term "right-of-way" can have only that one purpose or meaning in a deed. But that is not what is explained in Brown. The easiest way to refute his statement is to provide this citation from Brown, again. (with my emphasis)

          "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property."
          [Brown v. State of Washington (1996)]

            By pretending that the term "right-of-way" can have only the second understanding described in Brown, Blakney is claiming that the term "right-of-way" always means a "parcel" or a "strip of land" in a deed. That is not what Brown explains, and it is not what is held in one hundred years of common law precedent. But, it makes his and Norm Maleng's "legal theory" work. It keeps Norm Maleng and his crooked civil division lawyers out of federal prison for their part in the ELS federal tax fraud scheme. If the reader agrees with Blakney and Maleng that the term "right-of-way" can only be understood to mean a "parcel" or "strip of land", then one can justify Maleng's "legal theory" that the grant of a "right-of-way" to a railroad conveys fee simple title to a "strip of land". If the reader agrees, he simply has not done his "homework". I've tried to make the "homework" as easy as possible by providing the reference material at the click of a mouse.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            To repeat a prior discussion, this citation from Brown explains that the term "right-of-way" can have two purposes in a deed, and that where and how the term "right-of-way" is used determines how the term is interpreted. The reference to Veach in this Brown citation destroys Blakney's argument above. Veach is very similar to the ELS deeds, and was found to be an easement.

            Blakney ignores this above citation from Brown and instead uses short citations, out of context, to support his dishonest "legal theory" that Brown threw out one hundred years of legal precedent, and that now the grant of a "right-of-way" to a railroad conveys fee simple title to the land.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Summary:

        In this paragraph, Blakney continues to analyze deeds which convey rights-of-way using the rules to construe deeds which convey "land". As I've explained throughout this document, this is not the correct application of common law.

        Blakney refuses to admit that the term "right-of-way" can have two very different meanings, or purpose, in a deed. He admits to only the second definition of "right-of-way" described in Brown. This allows him to equate the term "right-of-way" to a "parcel" or "strip of land", and to dishonestly apply the rules used to construe "land" in his analysis of the ELS deeds. This is a cute trick, but completely dishonest and without any legal merit.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Reference:

        View a photocopy of the 9-17-1997 Blakney Memorandum

        View Attorney Daryl Deutsch's 10-24-1997 reply to Blakney's 9-17-1997 Memorandum.

        Read a description of the East Lake Sammamish federal tax fraud scheme.

        Read Brown v. State of Washington (1996)



    Another significant point is that, at least in some of the referenced deeds, the railroad agreed to build a crossing across its right of way. The court in Brown found obligations to construct or maintain farm crossings or other facilities in connection with the right of way as consistent with a fee simple transfer. Brown, footnote 9 at 442. They give the grantors an easement across land conveyed to the railroad. If the grantors had retained ownership, and granted only an easement to the railroad, there would be no reason to specifically include such obligations; the grantors would still have use of all the land.



      Note from John Rasmussen:

          For reference, open a photocopy of this Blakney Memorandum in a separate window.

            Blakney is correct that the Brown court found the language in the deeds it construed, related to mineral rights, irrigation rights, and farm crossings, supports the fact the parties intended to grant fee simple title. However, Blakney does not provide the language in the ELS deeds that he found comparable. It would be critical to view that language in order to understand if it applies in the same way. Since, the grant of an easement to a railroad allows the grantor to use the land in a way that does not interfere with the railroad's use, it seems likely that railroad crossings would be found in deeds conveying easements, too. Whether the grant is fee simple or an easement, the railroad would need to have some control over the location of the crossings, from a standpoint of the safe operation of its trains. Further, a crossing entails filling in the tracks so that a smooth surface is established for vehicles to cross. Again, the railroad would need to have some control over this modification to its tracks whether the deed were an easement of fee grant. The Brown court did not address these possibilities because the court was dealing only with deeds which conveyed fee simple title to "land".

          View Footnote 9, Brown v. State of Washington

            Blakney does not provide enough information to justify his point, or for me to clearly refute. It is worth noting that Bellevue attorney Daryl Deutsch reviewed all the ELS deeds and found that the great majority conveyed easements. Deutsch is an expert on railroad deeds. He was the attorney who defeated King County in Lawson v. State in 1986 and King County v. Squire in 1990. These are both important precedential railroad right-of-way opinions.

          Read Attorney Daryl Deutsch's 10-24-1997 letter to the King County Council, expressing his opinion that the ELS deeds are easements.



    In summary, the Washington Supreme Court has laid down a bright line rule for determining whether a railroad deed conveyance describes an easement or a fee simple transfer, and the "right of way" deeds listed in the attachment fit squarely within that rule. Where there is no language expressly and clearly burdening the estate conveyed, and it conveys a specified strip of land, it will be construed to convey fee simple title. Brown, at 443. The "right of way" deeds clearly meet all requirements of deeds transferring fee simple title. The unambiguous language of the deeds conveys the precisely measured strips of land to the railroad and its successors forever, without any restrictions of the use of such land. Therefore, fee simple title was transferred.

    Any appraisal for the County as purchaser or prospective purchaser with respect to the Redmond and Issaquah rail corridor may properly treat the "right of way" deeds as fee, consistent with the Brown decision.



      Note from John Rasmussen:

          For reference, open a photocopy of this Blakney Memorandum in a separate window.

      Blakney's infamous "bright line rule":

            The "bright line rule" that Blakney describes in the above paragraph in not found in Brown v. State of Washington (1996). There is no "bright line rule". Instead, we have Norm Maleng's "legal theory", now peddled by Blakney as a "bright line rule" which he claims was established by the Washington State Supreme Court in Brown. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      My Summary of Blakney's Summary:

            To summarize my discussion in this annotated memorandum, I first repeat Norm Maleng's "legal theory", which was described at the beginning of this document. Norm Maleng's "legal theory" is completely dishonest. Next, I reprint the common law rules which should have been used to construe the East Lake Sammamish right-of-way deeds. Then, I summarize how Blakney's dishonest statements in this memorandum are used to build Maleng's "legal theory", or "bright line rule" if you prefer. Last, I describe how this dishonest "legal theory" was carried on to our courts. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Norm Maleng's "legal theory"

          Maleng's "legal theory" contends that, in Brown v. State of Washington (1996), the court reversed the long held precedent that the grant of a right of way in a railroad deed is an easement, and instead found that the grant of a "right-of-way" in a railroad deed is a fee simple grant of the underlying land unless the deed contains a separate statement "expressly and clearly limiting the estate conveyed". this "legal theory" is dishonest legal argument designed to protect Norm Maleng, his staff, and the other participants in the ELS tax fraud scheme from being held accountable for their crime.
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        The Rules Used To Construe Railroad Deeds:

              The Washington State precedential railroad right-of-way opinions establish the rules used to construe railroad deeds. The rules are different for the grant of a "right-of-way" than for the grant of "land". I've named these rules for the sake of clarity in this discussion. The name of the rule is not important. The common law precedent that establishes the rule is the only factor. Use the hyperlinks to view the precedent that establishes these rules.

            The Basic Rules to Construe a Deed: The primary objective in construing a deed is to carry out the intent of the parties to the deed. The intent of the parties should be determined primarily from the deed, but the court may also consider the circumstances surrounding the deed's execution, and the subsequent conduct of the parties.

            "Railroad Land Granting Rule" A deed conveying "land" to a railroad grants fee simple title unless there is a statement that the deed is for the purpose of a railroad right-of-way or if the deed is limited to railroad right-of-way use. A statement of right-of-way purpose or limitation will change the grant to an easement.

            "Railroad Right-of-Way Granting Rule" A deed conveying a right-of way to a railroad grants an easement.

        The Dishonest Steps Blakney Used To Build Norm Maleng's "Legal Theory":

          1. Claim the analysis in Brown applied to railroad deeds in which a "right-of-way" was conveyed. The Brown court dealt only with deeds which conveyed strips of land. The analysis in Brown was confined to the common law precedent which establishes the "Railroad Land Granting Rule". Blakney claimed the Brown court was analyzing deeds which conveyed rights-of-way, but in Brown the court repeatedly stated it was only construing deeds which conveyed strips of land.
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            View Blakney's claim that Brown construed deeds which conveyed "rights-of-way", and the analysis which proves him wrong.

          2. Ignore the discussion in Brown which identifies two different purposes for the term "right-of-way" in a railroad deed. Brown explained that there are two purposes for the term "right-of-way" in a railroad deed, and that where and how the term is used determines which meaning applies. Brown cited three precedential opinions in which an easement was established by the use of the term "right-of-way" in the granting clause or the habendum of a railroad deed. Blakney refused to cite this critical portion of the Brown opinion because it destroys his "Legal Theory" that Brown abandoned long held precedent and established a new "bright line rule".
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            View the discussion which examines the two meanings for the term "right-of-way" in a railroad deed. This discussion contains the citation from Brown which contradicts Blakney's dishonest "Legal Theory".

          3. Claim that the term "right-of-way", used by itself in a railroad deed, cannot restrict the conveyance to an easement. Blakney ignores the paragraph in Brown, cited above, which explains that the term "right-of-way", used in the granting clause or habendum, is understood to restrict the conveyance to an easement. Instead, Blakney makes two statements that are outright lies, and then provides an altered citation which takes on a completely different meaning out of the context of its paragraph in Brown. Blakney uses these falsehoods to misrepresent how the term "right-of-way" is used and understood in a railroad deed. The following are Blakney's lies and altered citation presented as hyperlinks. Click on these hyperlinks to open the position in this webpage where his dishonest statements are exposed and explained.
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            "According to Brown, the fact that deeds...convey rights of way is not dispositive."

            "The term "right of way" is not an express and clear limitation on the estate conveyed to the railroad for the simple reason that a railroad can own a right of way in fee simple as well as an easement."

            "'To describe the property as a 'right of way' simply begs the question of what interest [the railroad] acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys.'"

          4. Claim that the term "right-of-way" in a railroad deed always means a "strip of land". Since the Brown court was construing only deeds which conveyed strips of land, Blakney fit the discussion in Brown to the ELS deeds by claiming that the term "right-of-way" in a railroad deed means a "strip of land". To do this, Blakney intentionally ignored the discussion in Brown which explained that the term "right-of-way" can be understood in two different ways in a railroad deed, and that where and how the term is used determines which meaning applies. After blurring, confusing, and changing the term "right-of-way" to become the term "strip of land", Blakney used abbreviated citations from Brown, or made general references to the discussion in Brown, and misrepresented these citations in order to support Norm Maleng's "Legal Theory".
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            View the discussion which examines the two meanings for the term "right-of-way" in a railroad deed. This discussion contains the citation from Brown that destroys Blakney's argument.

            View the paragraph of this memorandum where Blakney states that the SLS&E form deed "conveys a definite strip of land" in spite of the fact the SLS&E form deed conveys a "right of way" in its granting clause.

      Summary of this Blakney Momorandum:

            Norm Maleng, the King County Prosecutor, participated in a federal tax fraud scheme by accepting a phony donation of land from BNSF that he knew the Railroad didn't own. To keep himself, his staff, and others out of federal prison, he developed a "legal theory" that would cover up his crime. This memorandum is the first appearance of his "legal theory", but it reappears in legal briefs, press releases, public meetings, and legal opinions. The most disgusting aspect is that Maleng, and others who participated in the scheme, were able to influence federal and state judges to adopt this "legal theory", deny Constitutional rights, and abandon the law in order to cover up the East Lake Sammamish federal tax fraud scheme and protect powerful people in King County from prosecution. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)



















































      Reference:




      The Basic Rules to Construe a Deed:


             In order to construe a deed in Washington State, there are rules to use to decide the deed's effect. These rules are established by the common law opinions which deal with this issue, and span more than one hundred years in Washington State, other states, and federal. In legal terms these rules are called "precedent". (Please use the hyperlinks below for a citation to justify each precedential statement.)

        "In general, when construing a deed, the intent of the parties is of paramount importance and the court's duty to ascertain and enforce."

        Legal precedent holds that "[i]t is a factual question to determine the intent of the parties."

        So, when there is disagreement on this most critical material fact, the rules of summary judgment require a jury to resolve the intentions of the parties.

        In order to determine the intentions of the parties in a deed, the primary evidence is the deed itself. The deed is considered the intrinsic evidence of the party's intent.

        In order to determining the intent of the parties from the deed, "...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...".

        Authorship of the words of a deed are also important because "...contract language . . . is construed most strongly against the party who drafted it, or whose attorney prepared it." Common law seems to be based on common sense. It is common sense that the person who writes the deed should be held responsible for the legal meaning of what he writes.

             The courts also look to extrinsic evidence in order to determine the intent of parties. In construing a deed, extrinsic evidence consists of "...the circumstances surrounding its [the deed's] execution, and the subsequent conduct of the parties...".

             Certainly, if the parties to the deed are available, the parties may testify or provide declarations of their intent. This website deals mostly with deeds executed in the late 1800's and the parties are long passed.

             So, in order to construe a railroad deed, the intrinsic and extrinsic evidence should be considered. Judges or juries construing railroad deeds must consider the rules found in legal precedent and combine them with the facts (intrinsic and extrinsic evidence) to determine the intent of the parties and the deed's effect.

             Below, I've listed the precedential Washington State railroad opinions which deal with the determination of easement or fee in railroad deeds. At the time the Hilchkanum right-of-way deed was construed in federal and Washington State courts the latest significant opinion which dealt with railroad rights-of-way was Brown v. State of Washington (1996). Sadly, the judges who construed the Hilchkanum right-of-way deed intentionally misrepresented Brown in order to illegally grant land to King County and cover-up the ELS federal tax fraud scheme. Their intentional misuse of Brown was criminal. But, judges aren't prosecuted for committing crimes from the bench. The reason for this is that judges protect their fellow judges from prosecution. The fraternity of judges is simply the strongest "labor union" that has ever existed.
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

             As I stated above, the rules to construe railroad right-of-way deeds are established in the Washington State/Territory common law opinions going back more than one hundred years. Here is a list of the most relevant opinions:

          1893: Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co. (1893)

          1894: Reichenbach v. Washington Short Line Ry. Co. (1894)

          1905: Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)

          1910: Pacific Iron Works v. Bryant Lumber (1910)

          1929: Morsbach v. Thurston Co. (1929)

          1950: Swan v. O'Leary (1950)

          1956: Scott v. Wallitner (1956)

          1977: Zobrist v. Culp (1977)

          1979: Veach v. Culp (1979)

          1986: Roeder v. BNSF (1986)

          1986: Lawson v. State (1986)

          1990: King County v. Squire (1990)

          1993: Harris v. Ski Park Farms (1993)

          1996: Brown v. State of Washington (1996)

          2000: Roeder v. K&E Storage (2000)

          2002: Hanson Industries v. County of Spokane (2002)

             You will notice that there is one non-Washington opinion: Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905). I include Abercrombie because it has had so much influence on the Washington State opinions, and has had great influence in other states, too. In his Brown dissenting opinion, Washington State Supreme Court Justice Sanders writes: "Abercrombie is the mother of all railroad cases in both jurisdictions."

             I've taken forty-four significant citations from the opinions listed above. These citations establish the rules that are used to evaluate the meaning of the words "right-of-way" in railroad deeds. These citations establish the precedent which the Hilchkanum judges ignored and subverted in construing the Hilchkanum deed. The citations are listed as a reference at the bottom of this document, but may also be opened in a separate window by using the following hyperlink. Each citation is presented as a hyperlink which will open the citation at its location in the full opinion
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          Forty-four citations explaining the meaning of the words "right-of-way" in railroad deeds.

             From the above railroad right-of-way decisions, a number of rules are established to construe railroad right-of-way deeds. As I wrote above, these "rules" are more commonly called "legal precedent". There is nothing complicated about these rules, but it does take some study to understand them. The judges who construed the Hilchkanum deed to the SLS&E are counting on folks not making the effort to understand these rules. This precedent establishes two rules which are most important to the discussion on this page and the discussion on this website. These rules are used to determine whether a grant to a railroad is fee simple or an easement. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

            Rules to Determine Easement or Fee in Railroad Deeds:

            1. Railroad Land Granting Rule: A deed conveying land to a railroad grants fee simple title unless there is a statement that the deed is for the purpose of a railroad right-of-way or if the deed is limited to railroad right-of-way use. A statement of right-of-way purpose or limitation will change the grant to an easement.

            2. Railroad Right-of Way Granting Rule: A deed conveying a right-of way to a railroad grants an easement.

             The names I have given to these two rules are mine. The rules are not formally named as such in common law. I've assigned these names for my use as a shorthand in this discussion. Now, we'll discuss each of these rules and then understand how the first rule was intentionally misapplied by the Hilchkanum judges in King County v. Rasmussen and Ray v. King County. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


      Railroad Land Granting Rule:


      Railroad Land Granting Rule: A deed conveying land to a railroad grants fee simple title unless there is a statement that the deed is for the purpose of a railroad right-of-way or if the deed is limited to railroad right-of-way use. A statement of right-of-way purpose or limitation will change the grant to an easement.

             "Railroad Land Granting Rule" is a name that I have assigned for clarity in the discussions on this website. The rule is not formally named as such in common law. The rules to construe the grant of land to railroads are primarily found in the Washington State common law decisions which have construed railroad deeds over more than one hundred years. This common law precedent establishes the "Railroad Land Granting Rule", and is explained in the citations displayed below.

             Railroads can hold rights-of-way in fee simple or as an easement. But, the grant of a right-of-way to a railroad has always been held to be an easement in Washington State/Territory. At first glance, these statements appear to be contradictory. This seeming inconsistently is explained by the railroad granting rules" discussed here. A railroad may obtain "land" and own it fee simple. The railroad may then establish a right-of-way on its own land. In that case, a railroad may hold a right-of-way in fee simple. However, if a deed conveying "land" to a railroad has a statement that the deed is limited to railroad right-of-way use, or if there is a statement that the deed is for railroad right-of-way purposes, the deed will be found to grant an easement. This is the "Railroad Land Granting Rule" displayed above. Here are several citations which explain this rule, in chronological order. Each citation has a hyperlink attached, which will take one to the citation in the context of its full opinion. (citations with my emphasis)

          Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)

               In Abercrombie v. Simmons (1905), the Supreme Court of Kansas cited three opinions that support the Railroad Land Granting Rule. Notice that each deed conveys "land" with the additional notation that it was for railroad right-of-way purpose. Because a railroad right-of-way purpose was expressed, the grants were found to be easements.(with my emphasis)

               Note: I've included a citation from this out-of-state opinion because of its importance in the Washington State railroad opinions over the years.

            "In Chouteau v. The Missouri Pacific Railroad Company, 122 Mo. 375, 22 S. W. 458, 30 S. W. 299, land was conveyed to a railroad company by general warranty deed for railroad purposes, and it was held that the company did not acquire a fee in the land, and, further, that the conveyance by the husband extinguished the inchoate right of dower of the wife in the land, although she did not join in the conveyance. In effect, this was a following of the ruling made in Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426. In Uhl v. Railroad Co., 51 W. Va. 106, 41 S. E. 340, there was a contract, for the execution of a deed conveying a strip of land for a right of way in fee simple, and it was held that the words "right of way" in a grant to a railroad company means an easement, and does not pass the absolute title, and that the railroad company did not take oil or other minerals under the land. The Supreme Court of Iowa in Railway Co. v. McWilliams, 71 Iowa, 164, 32 N. W. 315, held that a contract which recited that certain land was to be conveyed to a railroad company for a right of way, and also that it should be conveyed by deed in fee simple, was a contract for a right of way merely, and not for a fee simple title to the land."
            [Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)]

          Morsbach v. Thurston Co. (1929)

               For many years the leading railroad right-of-way opinion in Washington State was Morsbach v. Thurston Co. (1929). Morsbach provided an extensive discussion, including examples, on the issue of whether a railroad deed passes an easement of fee. Below, are two citations from Morsbach which explain that railroads may purchase land in fee simple, but that if the deed expresses a right-of-way purpose or limitation, the deed passes an easement. This is the "Railroad Land Granting Rule". (citations with my emphasis)

            "...quite a tract of land was conveyed in the instrument, to wit, about one hundred ninety-seven acres. It could be presumed that no such amount of land was necessary or intended for strictly railway right of way purposes. Since railways have, in the absence of restrictive statutes, the right to acquire real estate for any purpose whatever, as they apparently had in that state, we think that court properly decided that that conveyance granted a full fee simple title."
            [Morsbach v. Thurston Co. (1929)]

               Here is a second citation from Morsbach which supports the "Railroad Land Granting Rule". (citations with my emphasis)

            "It is held that a deed conveying land to a railroad for a right of way gives the railroad no more rights than it would have acquired by condemnation."..."The fact that the right conveyed is designated as a fee, or that the deed contains covenants of warranty, does not necessarily pass the fee."

          Swan v. O'Leary (1950)

               Below, I provide two citations from Swan v. O'Leary which explain the "Railroad Land Granting Rule".

               This first citation shows that is the duty of the court to consider whether land conveyed to railroads is granted with or without a limitation or stated purpose. This is the same consideration used in the "Railroad Land Granting Rule" to determine whether the grant is fee simple of an easement. (citation with my emphasis)

            "In attempting to arrive at the intention of the parties to similar conveyances, the courts have considered such factors as..." "...whether the deed conveyed a strip, piece, parcel or tract 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; whether the deed conveyed a strip of land and limited its use to a specific purpose; whether the deed conveyed a right of way over a tract of land, rather than a strip, piece or parcel thereof;..."
            [Swan v. O'Leary (1950)]

               This second citation in Swan indicates that narrow strips of land conveyed to a railroad without restriction, using a deed form designed to convey land, would be found to convey fee simple title. This is the "Railroad Land Granting Rule" that is found in Brown, and exists today. Here are the citations: (with my emphasis)

            "The courts have found no difficulty with those conveyances where a grantor, by appropriate words of conveyance, unqualifiedly conveyed a strip of land to a grantee by the usual form of conveyance; nor have they found any difficulty with those where a properly described right of way or easement over a designated tract of land was set forth in the instrument of conveyance."
            [Swan v. O'Leary (1950)]

          Zobrist v. Culp (1977)

               In Zobrist v. Culp, the Washington State Court of Appeals recognized the "Railroad Land Granting Rule" by referencing Swan with this citation: (my emphasis)

            "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."
            Zobrist v. Culp (1977)

          Veach v. Culp (1979)

               In Veach v. Culp, the Washington State Supreme Court recognized the "Railroad Land Granting Rule" with this citation: (my emphasis)

            "In Swan v. O'Leary, 37 Wn.2d 533, 537, 225 P.2d 199 (1950), this court clarified the holding of Morsbach by stating:

              '[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 title.'"
            Veach v. Culp (1979)

          Roeder v. BNSF (1986)

               In Roeder v. BNSF (1986), the Washington State Supreme Court recognized the "Railroad Land Granting Rule" with this citation: (my emphasis)

            "In Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526 (1979), the granting and habendum clauses of the deed contained absolute grants of land to the railroad. There, the parties had described the land being conveyed as "a right-of-way 100 feet wide, being 50 feet on each side of the center line of the railroad." /6 The court observed that '[l]anguage like this has been found to create an easement, not a fee simple estate.'"
            [Roeder v. BNSF (1986)]

          Brown v. State of Washington (1996)

               In Brown v. State of Washington, the Washington State Supreme Court construed deeds granted to the Milwaukee Railroad Company in the early 1900's. The deeds were mostly in statutory warranty form and granted land without a limitation to right-of-way use or a stated right-of-way purpose. The statutory warranty deed form was established by the Territorial Legislature to convey land, and its use implies the conveyance of land. This deed form is discussed in greater detail below.

               The federal and state judges, who construed the Hilchkanum right-of-way deed to the SLS&E used the analysis in Brown, which construed railroad deeds that conveyed "land", and applied the analysis to the Hilchkanum deed, which conveyed a "right-of-way". As I explain throughout this webpage, different rules apply to construing these very different conveyances. In its briefs for the Hilchkanum lawsuits (King County v. Rasmussen and Ray v. King County), there was a claim by King County that the Brown decision changed the way railroad deeds were construed. King County's claim was not based on the law. Rather, the County's claim was based on its need to hide its participation in the ELS federal tax fraud scheme. Norm Maleng, the King County Prosecutor had accepted a "donation" of land from BNSF that he knew the railroad did not own. Maleng presented a false analysis of Brown in order to make the "donation" appear legal and to cover up his crime. The King County Prosecutor claimed in one of his briefs that the Brown court had signaled a "sea change" in the way railroad deeds were construed. There was no "sea change". The Brown court used a number of citations from the previous precedential railroad decisions as authority for its conclusions. The use of long held precedent is not a "sea change".
              (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

               In accordance with common law precedent, the Washington State Supreme Court found the Brown deeds granted fee simple title to the railroad because the deeds granted "land" to the railroad without restrictions or qualifications. This is the "Railroad Land Granting Rule", explained and justified on this webpage. (citations with my emphasis)

            "In this case, where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed."
            [Brown v. State of Washington (1996)]

            "...where there is no language in the deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, the deed will be construed to convey fee simple title."
            [Brown v. State of Washington (1996)]

          Roeder v. K&E Storage (2000)

               In Roeder, the court construed a statutory bargain and sale deed. Like the statutory warranty deed form, the statutory bargain and sale deed form was established by the Territorial Legislature in 1886 for the purpose of conveying land, and by its use presumes the conveyance of land. This citation from Roeder supports the "Railroad Land Granting Rule". (with my emphasis)

            "When construing a deed, the intent of the parties "is of paramount importance and the court's duty to ascertain and enforce." /7 Whether the parties to a railroad right of way deed used a statutory form deed is a significant factor in determining what they intended. In Brown, the Supreme Court ruled that "where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed." /8 This rule also applies to bargain and sale deeds like the one involved here. /9 "
            Roeder v. K&E Storage (2000)

             The citations from Brown and Roeder (2000), above, analyze deeds which were written in statutory form. Understanding the reason for the statutory deed forms, and what is implied by their use, will aid in understanding the "Railroad Land Granting Rule". So, we now look at the Washington State statutory deed forms.

      The "warranty" and "bargain and sale" statutory deed forms imply conveyance of land in Washington State/Territory:

             In Washington State, there are three deed forms established by statute: the Statutory Warranty Deed Form, the Statutory Bargain and Sale Deed Form, and the Statutory Quitclaim Deed Form. In the citations from Brown and Roeder (2000) above, the form of the deed was a factor in determining if land was conveyed. This is because the Statutory Warranty Deed Form and the Statutory Bargain and Sale Deed Form are for the purpose of conveying land and their use presumes a grant of fee simple title unless the conveyance is limited in some way. We will briefly discuss each statutory form.

        Statutory Warranty Deed Form:

             The statutory warranty deed form was established by the Territorial Legislature in 1886 for the purpose of standardizing a deed form to convey fee title of real estate. From the time this statutory warranty deed form was established by the legislature, the use of this deed form has signaled the intention of the parties to convey fee simple title. This fact is supported and explained in Brown with this cited footnote:

          "5. Since before statehood, the Legislature has provided that deeds patterned after state statute are deemed to convey fee simple title and carry certain warranties. The territorial Legislature first provided every deed in the following form is deemed to convey fee simple title:

            The grantor (here insert the name or names and place of residence,) for and in consideration of (here insert consideration), in hand paid, convey and warrant to (here insert the grantee's name or names), the following described real estate (here insert description), situated in the county of _____, state of Washington. Dated this __ day of _____18__. (Seal)

          LAWS OF 1886, 3, pp. 177-78. This law was codified at REM. & BALL. CODE 8747 (1909) and presently as RCW 64.04.030. The statutory form alleviated drafting and interpretation problems manifest under the prior system, especially in cases like this where the parties to the deeds are deceased and the evidence consists solely of the deeds themselves. This form is now universally used and relied upon. 17 William B. Stoebuck, WASHINGTON PRACTICE, REAL PROPERTY 7.2 (1995)."
          [Brown v. State of Washington (1996)]

          View RCW 64.04.030 - the Statutory Warranty Deed Form.

        Statutory Bargain and Sale Deed Form:

             The statutory bargain and sale deed was also established in 1886 and survives today as RCW 64.04.040. Like the statutory warranty deed form, the use of the statutory bargain and sale deed form implies fee simple conveyance of land. This can be confirmed by reading the RCW hyperlink below.

          View RCW 64.04.040 - the Statutory Bargain and Sale Deed Form.

        Statutory Quitclaim Deed Form:

             The third deed form established by the Legislature in 1886 is the quitclaim deed. This deed is not a factor in the discussions in these web pages. The quitclaim deed passes whatever interest the grantor possesses to the grantee. If the grantor has fee simple title, fee simple title is conveyed to the grantee. However, the use of the statutory quitclaim deed form does not imply fee simple conveyance of land, as the other two deed forms do.

          View RCW 64.04.050 - the Statutory Quitclaim Deed Form.


      Railroad Right-of-Way Granting Rule:


      Railroad Right-of-Way Granting Rule: A deed granting a "right-of-way" to a railroad conveys an easement.

             "Railroad Right-of-Way Granting Rule" is a name that I have assigned for clarity in the discussions on this website. The rule is not formally named as such in common law. The rules to construe the grant of rights-of-way to railroads are primarily found in the Washington State common law decisions which have construed railroad deeds over more than one hundred years. This common law precedent establishes the "Railroad Right-of-Way Granting Rule", and is explained in the citations displayed below.

             The federal and State judges who construed the 1887 Hilchkanum right-of-way deed to the SLS&E applied the "Railroad Land Granting Rule" to the analysis of the Hilchkanum deed. But, the Hilchkanum deed did not grant "land", so there was no requirement for the deed to have a separate statement limiting the grant, or stating its purpose to be a right-of-way, in order to find it to be an easement. Rather, the limiting language and purpose in the Hilchkanum deed is taken from the words in the granting clause which convey a "right of way" to the Railway. The Hilchkanum deed should have been construed using the "Railroad Right-of-Way Granting Rule". So, now we discuss the "Railroad Right-of-Way Granting Rule".
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

             Most, if not all, of the Washington precedential railroad right-of-way opinions have looked at the issue of whether "land" or a "right-of-way" was granted to the railroad. In every case that a "right-of-way" was granted to a railroad, the Washington State courts have found that an easement was conveyed. That is, every case until the very dishonest decisions that construed the Hilchkanum right-of-way deed. The judges who construed the Hilchkanum deed abandoned the constitution and the law and issued opinions which covered up the East Lake Sammamish federal tax fraud scheme. The Hilchkanum decisions are not legal opinions, but rather they are criminal acts from the bench. In contrast, the many legitimate railroad right-of-way decisions establish the "Railroad Right-of-Way Granting Rule". Here are citations which establish this rule. Use the associated hyperlink to read each citation in the context of its full opinion for a better understanding of the rule/precedent: (citations with my emphasis.)
            (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


        Citations Explaining the Grant of a "Right-of-Way" to a Railroad is an Easement.

        (The citations are in chronological order, with my emphasis.)

          Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)

            "In Railway Co. v. Geisel, 119 Ind. 77, 21 N. E. 470, there was a deed releasing and quitclaiming to a railroad company a right of way 80 feet wide through a certain tract of land, and it was held that the company did not acquire the fee of the land."
            [Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)]

          Morsbach v. Thurston Co. (1929)

            "It is followed by a case note in 6 Ann. Cas., p. 239, supra, among others, citing many cases to the effect that, where a railroad has taken a conveyance expressly granting a right of way, it will be held to have taken an easement merely, and that a grant of a strip of land to a railroad company 'for right of way and for operating its railroad only,' conveyed merely an easement."
            [Morsbach v. Thurston Co. (1929)]

            "...The granting clause of this instrument conveys only a right of way, which is a mere easement, the owner of the soil retaining his exclusive right in all mines, timber and earth for every purpose not incompatible with the use for which it is granted;..."
            [Morsbach v. Thurston Co. (1929)]

            "The agreement in this case does not grant land in its granting clause, but only right of way . . . Where the granting clause declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement only, though it be in the usual form of warranty deed."
            [Morsbach v. Thurston Co. (1929)]

            "In Cincinnati, H. & D. R. Co. v. Wachter, 70 Ohio 113, 70 N. E. 974, the grant involved was of a right of way, one hundred feet in width, across a tract of land containing twenty acres or more, together with a waiver of all further damages that might arise by reason of the location or construction of the railroad or repairing thereof when finally established or completed. There was no reservation of any kind in the instrument. The right of way was adopted, the road completed in 1854, and used continuously for the operation of railroad passenger and freight trains. The court there said:

              'The right of way of the company is an easement. Washb. on E. & S. 4. It is, using exact language, a servitude imposed as a burden on the land. The conveyance from Crane in terms specifies that it is a 'release of a right of way,' and no question is made, and we presume none can be, that the right thus granted is not different from, nor greater than, that which would result from an appropriation proceeding under the statute.'

            It was held in that case that an easement, and not a fee simple estate, was granted."
            [Morsbach v. Thurston Co. (1929)]

            "A noted text writer states the law as follows:

              'A grant of a right of way to a railroad company is the grant of an easement merely, and the fee remains in the grantor. The mere fact that the railroad company's charter empowered it to acquire a greater estate than that which it contracted for has been held not to affect its rights in the land purchased. But statutes authorizing railroad companies to acquire the fee in land have been generally given effect. It is held that a deed conveying land to a railroad for a right of way gives the railroad no more rights than it would have acquired by condemnation. 'The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by nonuser. The exclusive use of the surface is acquired, and damages are assessed, on the theory that the easement will be perpetual; so that, ordinarily, the fee is of little or no value unless the land is underlaid by quarry or mine.' Where the intention to convey a fee does not appear, as in case of the conveyance of a 'right of way' for the railroad through certain lands, the company takes an easement only. The fact that the right conveyed is designated as a fee, or that the deed contains covenants of warranty, does not necessarily pass the fee.
              1 Thompson on Real Property, SS 4:20.'"
            [Morsbach v. Thurston Co. (1929)]

          Veach v. Culp (1979)

            "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."
            [Veach v. Culp (1979)]

            "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."
            [Veach v. Culp (1979)]

          King County v. Squire (1990)

            "Although the language of a particular deed defines the interest conveyed, rights of way granted to a railroad are frequently held to create easements."
            [King County v. Squire (1990)]

            "The Squire deed granted a "right-of-way Fifty (50) feet in width through said lands". This suggests an easement was conveyed."
            [King County v. Squire (1990)]

            "Since the language in the granting clause strongly suggests conveyance of an easement,"....."The authorities and cases discussed above clearly support construing the Squire deed as an easement."
            [King County v. Squire (1990)]

            "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."
            [King County v. Squire (1990)]

          Harris v. Ski Park Farms (1993)

            "When the granting clause of a deed conveys a right of way to a railroad, this court has usually concluded that the deed passes an easement and not a fee with a restricted use:

              [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 title. "
            [Harris v. Ski Park Farms (1993)]

          Brown v. State of Washington (1996)

            "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property."
            [Brown v. State of Washington (1996)]



      Reference:




      Citations Explaining the Meaning of the Words "Right-of-way" in Railroad Deeds:

      (Citations are in reverse chronological order, with my emphasis on the terms "right-of-way" and "easement".)

      Each abbreviated citation is a hyperlink which will take the reader to its location in its respective opinion.

        2000: Roeder v. K&E Storage (2000)
          "Because the words "right of way" appeared only in each deed's legal description or in the description of the railroad's obligations, instead of in the granting or habendum clauses, the court concluded that '[u]sed in this manner, 'right of way' merely describes a strip of land acquired for rail lines; it does not qualify or limit the interest expressly conveyed in the granting and habendum clauses.'"

        1996: Brown v. State of Washington (1996)
          "We have given special significance to the words "right of way" in railroad deeds."

          "...we held the deed granted an easement based on the specifically declared purpose that the grant was a right of way for railroad purposes..."

          "...the term "right of way" as a limitation or to specify the purpose of the grant generally creates only an easement."

          "The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway." ... "Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations..." "Used in this manner, "right of way" merely describes a strip of land acquired for rail lines; it does not qualify or limit the interest expressly conveyed in the granting and habendum clauses."

          Dissenting Opinion: "...where the granting clause...declares the purpose...to be a right of way for a railroad, the deed passes an easement only..."

          Dissenting Opinion: "...an easement is not created unless the magic words "right of way" are contained in the 'granting clause.'"

          Dissenting Opinion: "...Morsbach does not narrowly define "granting clause" nor does it require the right of way purpose be expressed in any particular words."

          Dissenting Opinion: "Where the purpose is right of way...it was the intent of the parties to grant...an easement."

          Dissenting Opinion: "...majority...giving "special significance to the words 'right of way' in railroad deeds,"...finding the absence...overpowering in significance."

          Dissenting Opinion: "A grant of a right of way to a railroad company is the grant of an easement merely..."

        1993: Harris v. Ski Park Farms (1993)
          "...when the granting clause...declares the purpose...to be a right of way for a railroad the deed passes an easement only..."

        1990: King County v. Squire (1990)
          "...rights of way granted to a railroad are frequently held to create easements."

          "[W]hen the granting clause of a deed declares the purpose...to be a right of way...the deed passes an easement only..."

          "...construing the deed as a whole, held...instrument conveyed a right of way easement..."

          "...The Squire deed granted a "right-of-way...This suggests an easement was conveyed."

          "...right-of-way...language in the granting clause strongly suggests conveyance of an easement..."

          "...language of the deed which described the conveyance of a right of way indicated an easement had been conveyed."

        1986: Lawson v. State (1986)
          "...where a deed is construed to convey a right of way for railroad purposes only, upon abandonment...the land...reverts...free of the easement...."

        1986: Roeder v. BNSF (1986)
          "Since the granting clause...declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement..."

          "...land being conveyed as "a right-of-way"...has been found to create an easement..."

        1979: Veach v. Culp (1979)
          "The parties...describe what was being conveyed: a right-of-way...Language like this has been found to create an easement..."

          "...language of the deed...describing the conveyance of a right-of-way...we conclude the deed conveyed an easement..."

        1977: Zobrist v. Culp (1977)
          "...when the granting clause...declares the purpose...to be a right of way for a railroad the deed passes an easement only..."

        1956: Scott v. Wallitner (1956)
          "...in none of these transactions was there a grant of a right of way for the purpose of building a railroad..."

        1950: Swan v. O'Leary (1950)
          "...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..."

        1929: Morsbach v. Thurston Co. (1929)
          "...we held that the reservation was of a right of way creating nothing more than an easement..."

          "...an instrument reserving and excepting a strip of land...conveyed...for a right of way...only an easement was granted..."

          "...construed as a whole...in the light of the purpose...it was made, was a grant of a right of way or easement..."

          "...grant of the right of way...was intended to convey simply the right of way and easement..."

          "...a conveyance...granting a right of way...will be held to have taken an easement merely..."

          "...granting clause...conveys only a right of way, which is a mere easement..."

          "...Where the granting clause of a deed declares the purpose...to be a right of way for a railroad, the deed passes an easement only, and not a fee..."

          "...Where the granting clause declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement..."

          "...the granting clause"..."described as follows, to wit: The right of way for a railroad"..."conveyed an easement only, and not a fee."

          "...grant involved was of a right of way...across a tract of land"..."held...that...an easement...was granted."

          "In the Uhl case...what meaning...given 'right of way' used in the granting clause of the deed...its effect...to vest...an easement..."

          "...grant of a right of way to a railroad company is the grant of an easement merely..."

        1910: Pacific Iron Works v. Bryant Lumber (1910)
          "The grant of a right of way to a railroad company is the grant of an easement..."

        1905: Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)
          "...in regard to the right of way...the grant...vests...an easement..."

          "...a deed releasing and quitclaiming to a railroad company a right of way...did not acquire the fee of the land."

          "...the words "right of way" in a grant to a railroad company means an easement..."

        1894: Reichenbach v. Washington Short Line Ry. Co.(1894)
          "The conveyance is one of a mere right of way habendum to the grantee...and show the grant of an easement only..."

        1893: Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)
          The term "right-of-way" means "easement".



      Reference:



        Washington State Statutory Deed Forms


        Note from John Rasmussen

             The statutory deed forms were established by the Territorial Legislature in 1886 for the purpose of standardization and clarity in deed transactions. Three deed forms were established by law: the Statutory Warranty Deed Form, the Statutory Bargain and Sale Deed Form, and the Statutory Quitclaim Deed Form. These 1886 laws are still in effect today as RCW 64.04.030, RCW 64.04.040 and RCW 64.04.040, and are displayed below. Two of the deed forms, the Statutory Warranty Deed Form and the Statutory Bargain and Sale Deed Form are designed to convey "land" or "real estate". The use of either of these two deed forms presumes the conveyance of land by fee simple title unless limitations or another purpose are stated in the deed.


        RCW 64.04.030 - Warranty deed Form and effect.

        Warranty deeds for the conveyance of land may be substantially in the following form, without express covenants:

          The grantor (here insert the name or names and place or residence) for and in consideration of (here insert consideration) in hand paid, conveys and warrants to (here insert the grantee's name or names) the following described real estate (here insert description), situated in the county of . . . . . ., state of Washington. Dated this . . . . day of . . . . . ., 19. . .

        Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his heirs and assigns, with covenants on the part of the grantor: (1) That at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed.

        [1929 c 33 9; RRS 10552. Prior: 1886 p 177 3.]


        RCW 64.04.040 - Bargain and sale deed Form and effect.

        Bargain and sale deeds for the conveyance of land may be substantially in the following form, without express covenants:

          The grantor (here insert name or names and place of residence), for and in consideration of (here insert consideration) in hand paid, bargains, sells and conveys to (here insert the grantee's name or names) the following described real estate (here insert description) situated in the county of . . . . . ., state of Washington. Dated this . . . . day of . . . . . ., 19. . .

        Every deed in substance in the above form when otherwise duly executed, shall convey to the grantee, his heirs or assigns an estate of inheritance in fee simple, and shall be adjudged an express covenant to the grantee, his heirs or assigns, to wit: That the grantor was seized of an indefeasible estate in fee simple, free from encumbrances, done or suffered from the grantor, except the rents and services that may be reserved, and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee, his heirs, executors, administrators and assigns may recover in any action for breaches as if such covenants were expressly inserted.

        [1929 c 33 10; RRS 10553. Prior: 1886 p 178 4.]


        RCW 64.04.050 - Quitclaim deed Form and effect.

        Quitclaim deeds may be in substance in the following form:

          The grantor (here insert the name or names and place of residence), for and in consideration of (here insert consideration) conveys and quitclaims to (here insert grantee's name or names) all interest in the following described real estate (here insert description), situated in the county of . . . . . ., state of Washington. Dated this . . . . day of . . . . . ., 19. . .

        Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release and quitclaim to the grantee, his heirs and assigns in fee of all the then existing legal and equitable rights of the grantor in the premises therein described, but shall not extend to the after acquired title unless words are added expressing such intention.

        [1929 c 33 11; RRS 10554. Prior: 1886 p 178 5.]


        RCW 64.04.070

        After acquired title follows deed.

          Whenever any person or persons having sold and conveyed by deed any lands in this state, and who, at the time of such conveyance, had no title to such land, and any person or persons who may hereafter sell and convey by deed any lands in this state, and who shall not at the time of such sale and conveyance have the title to such land, shall acquire a title to such lands so sold and conveyed, such title shall inure to the benefit of the purchasers or conveyee or conveyees of such lands to whom such deed was executed and delivered, and to his and their heirs and assigns forever. And the title to such land so sold and conveyed shall pass to and vest in the conveyee or conveyees of such lands and to his or their heirs and assigns, and shall thereafter run with such land.

          [1871 p 195 1; RRS 10571. Cf. Code 1881 (Supp.) p 25 1.]


        RCW 64.04.010 - Conveyances and encumbrances to be by deed.

        Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed: PROVIDED, That when real estate, or any interest therein, is held in trust, the terms and conditions of which trust are of record, and the instrument creating such trust authorizes the issuance of certificates or written evidence of any interest in said real estate under said trust, and authorizes the transfer of such certificates or evidence of interest by assignment by the holder thereof by a simple writing or by endorsement on the back of such certificate or evidence of interest or delivery thereof to the vendee, such transfer shall be valid, and all such assignments or transfers hereby authorized and heretofore made in accordance with the provisions of this section are hereby declared to be legal and valid.

        [1929 c 33 1; RRS 10550. Prior: 1888 p 50 1; 1886 p 177 1; Code 1881 2311; 1877 p 312 1; 1873 p 465 1; 1863 p 430 1; 1860 p 299 1; 1854 p 402 1.]


        RCW 64.04.020 - Requisites of a deed.

        Every deed shall be in writing, signed by the party bound thereby, and acknowledged by the party before some person authorized by *this act to take acknowledgments of deeds.

        [1929 c 33 2; RRS 10551. Prior: 1915 c 172 1; 1888 p 50 2; 1886 p 177 2; Code 1881 2312; 1854 p 402 2.]

        Notes: *Reviser's note: The language "this act" appears in 1929 c 33, which is codified in RCW 64.04.010-64.04.050, 64.08.010-64.08.070, 64.12.020, and 65.08.030.