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What is the meaning of the term "right-of-way" in a railroad deed?

by John Rasmussen

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



"It depends upon what the meaning of the word 'is' is." (W.J. Clinton, 1998)

         In 1998, President Clinton was accused of lying under oath in his impeachment proceedings. It may be politically damaging for the President of the United States to be exposed for participating in oral sex with a young intern in the oval office, but it isn't illegal for consenting adults to have sex. However, it is illegal for the President of the United States to lie under oath. So, we have the famous statement by President Clinton, "It depends upon what the meaning of the word 'is' is.", in defense of his charges of perjury. The legal meaning of the word "is" became critical in determining whether President Clinton lied under oath.

It depends upon what the meaning of "right-of-way" is. (The Hilchkanum judges)

         For over one-hundred years, the term "right-of-way" meant an easement when the term was used in the granting clause or habendum of a railroad deed to specify what was conveyed. Not anymore! Beginning in 1997-1998, the King County Prosecutor and the Hilchkanum judges involved in the Rasmussen and Ray opinions changed the common law meaning of the term "right-of-way" in order to cover-up the East Lake Sammamish federal tax fraud scheme. The term "right-of-way" was changed in order to keep King County Prosecutor Norm Maleng out of federal prison. The Hilchkanum judge's dishonest reinterpretation (misinterpretation) of the term "right-of-way" has dramatically changed Washington State property law and is responsible for the theft of millions of dollars of land in the State of Washington. In the mid 1990's, King County conspired with BNSF to steal land from the residents along East Lake Sammamish and defraud the American taxpayers. But, the larger crime was the participation in the East Lake Sammamish federal tax fraud scheme by federal and State judges. The Hilchkanum judges involved in the Rasmussen and Ray opinions ignored common law precedent and illegally granted themselves complete control of the lawsuits by denying the right to a jury in the resolution of material facts. Abuse of the rules of summary judgment appears to be an epidemic in our courts. Of the Hilchkanum opinions, Rasmussen and Ray were illegally decided in violation of the rules of summary judgment.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

King County Prosecutor Norm Maleng knew that he was accepting fraudulently donated land.

         In 1998, King County Prosecutor Norm Maleng had previously been involved in two lawsuits which involved the question of whether 1887 Seattle Lake Shore and Eastern Railway (SLS&E) deeds granted easements or fee simple title of the land underlying the SLS&E right-of-way. Norm Maleng lost both of these legal decisions which involved "about" thirteen SLS&E right-of-way deeds. These two decisions are: Lawson v. State (1986) and King County v. Squire (1990). All of the SLS&E deeds in Lawson and Squire were determined to be easements. In Lawson the King County Prosecutor agreed that the deeds conveyed easements. In Squire the court decided the deed conveyed an easement. Yet, Maleng claimed that all of the SLS&E deeds under the East Lake Sammamish right-of-way granted fee simple title of the land. Maleng's problem was that deeds which were presented in Lawson v. State (1986) and King County v. Squire (1990) are materially identical to a number of East Lake Sammamish SLS&E right-of-way deeds, including the Hilchkanum right-of-way deed which is the subject of this website. I wrote above that I would present facts. The following deeds show the fact that East Lake Sammamish SLS&E deeds have identical language to deeds which had previously been determined to be easements in Lawson and Squire. King County Prosecutor Norm Maleng and his staff were very aware of this fact when, on Maleng's advice, King County accepted the phony tax donation from BNSF.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View the Bargquist right-of-way deed to the SLS&E.
           This SLS&E deed was agreed by the King County Prosecutor to be an EASEMENT in Lawson v. State (1986).

      View the Squire right-of-way deed to the SLS&E.
           This SLS&E deed was construed by the court to be an EASEMENT in King County v. Squire (1990).

      View the East Lake Sammamish Tahalthkut right-of-way deed to the SLS&E.
           This SLS&E deed was construed to be an EASEMENT in Berres v. US (2012).

      View the East Lake Sammamish Davis right-of-way deed to the SLS&E.
           This SLS&E deed was construed to be an EASEMENT in Berres v. US (2012).

      View the East Lake Sammamish Sbedzuse right-of-way deed to the SLS&E.
           This SLS&E deed was construed to be an EASEMENT in Berres v. US (2012).

      View the East Lake Sammamish Yonderpump right-of-way deed to the SLS&E.
           This SLS&E deed was construed to be an EASEMENT in Berres v. US (2012).

      View the East Lake Sammamish Hilchkanum right-of-way deed to the SLS&E.
           Determined an EASEMENT in Berres v. US (2012), Determined FEE SIMPLE in King County v. Rasmussen (2001), King County v. Rasmussen (2002), and Ray v. King County (2004).

         This website deals with the construing, and misconstruing, of the May 9, 1887 Hilchkanum right-of-way deed to the SLS&E. As I write this paragraph in 2013, the Hilchkanum right-of-way deed has been construed in the courts more than ten times (if one includes denied appeals). Despite the requirement that juries resolve questions of material fact, no jury has ever been allowed to resolve those issues in the Hilchkanum opinions. This violates the rules of summary judgment. Use the following link for a discussion on the legal precedent (rules) used to determine whether a railroad deed conveys an easement or fee simple interest. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Understand the Basic Rules to Construe a Deed.

    Here are the published Hilchkanum opinions which I've been able to obtain (in chronological order).

      Fee Simple Opinions:

      In King County v. Rasmussen (2001), the Hilchkanum right-of-way deed was determined to be a fee simple grant by Ninth Circuit Federal District Judge Barbara Jacobs Rothstein.

      In King County v. Rasmussen (2002), the Hilchkanum right-of-way deed was determined to be a fee simple grant by Senior Ninth Circuit Judge Betty Binns Fletcher and panel.

      In Ray v. King County (2004), the Hilchkanum right-of-way deed was determined to be a fee simple grant by Washington State Appeals Court, Division One, Judges Ronald E. Cox and Ann Schindler. Judge William W. Baker dissented.

      Collateral Estoppel Opinion:

      In Beres v. United States (2010), Gerald and Kathryn Ray were not allowed to relitigate the Hilchkanum right-of-way deed by United States Court of Federal Claims Judge Marian Blank Horn. Judge Horn denied the Ray's claim, citing the doctrine of collateral estoppel. But, about fourteen other parties were allowed to pursue a takings claim based the Hilchkanum right-of-way deed.

      Easement Opinions:

      In Beres v. United States (2011), the Hilchkanum right-of-way deed was determined to be an easement by U.S. Court of Federal Claims Judge Marian Blank Horn. While King County v. Rasmussen and Ray v. King County are mentioned throughout the opinion, Judge Horn tears apart Rasmussen and Ray starting at the bottom of page 57.

      In Beres v. United States (2012), the Hilchkanum right-of-way deed was determined to be an easement by United States Court of Federal Claims Judge Marian Blank Horn. Judge Horn analyzes Rasmussen and Ray starting at page 25. The opinion concludes that the establishment of the ELS Trail constituted a taking under the Fifth Amendment, and that the parties may proceed with their claims. In addition to the other ELS parties, this allowed about fourteen parties to resolve a taking claim based on the 1887 Hilchkanum right-of-way deed to the SLS&E being an easement.

         So, which of these opinions is correct? Rothstein, Fletcher, Cox, and Schindler "decided" that the 1887 Hilchkanum right-of-way deed granted fee simple title of the land under the right-of-way. The judges of the Washington State Supreme Court refused to consider appeal, allowing the criminal opinion of Judges Cox and Schindler to stand. Yet, in spite of this legal precedent, Federal Judge Horn decided that the same 1887 Hilchkanum right-of-way deed granted an easement. No jury has been allowed to resolve disputed facts in any of the Hilchkanum opinions. I don't have the briefs to know if issues of material fact were disputed in the Federal Court of Claims, but I know that Judges Rothstein, Fletcher, Cox, Schindler and the judges of the Washington State Supreme Court were all made aware of questions of material fact, and allowed summary judgment in violation of the law and the Constitution. This issue is discussed in greater detail below.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Prior to the ELS tax fraud scheme, ALL SLS&E deeds contested in King County courts were determined easements.

         The truth is that the Washington State Supreme Court did not redefine, alter, establish a new "bright line rule", or effect a "sea change" in the meaning of the term "right-of-way" in its Brown opinion. The truth is that the Brown court acknowledged legal precedent which has been consistently applied for over one-hundred years to construe railroad deeds. The Brown court made it clear that it was dealing only with deeds which were written using the Statutory Warranty Deed Form. The Brown court explained that railroad deeds in statutory warranty form are construed with a different set of rules than railroad deeds which directly grant a "right-of-way". Norm Maleng and his staff manipulated the Brown opinion, claiming that the special rule the Brown court used to construe deeds in statutory warranty should be used to construe all railroad deeds in any form. That lie by Norm Maleng is the basis his dishonest legal argument I've named Norm Maleng's "legal theory". The first evidence of "Norm Maleng's 'legal theory'" is discussed next.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

         After the King County Prosecutor accepted the phony federal tax donation by BNSF, the Prosecutor's office published a white paper claiming that, in Brown, the Washington State Supreme Court established a new "bright line rule" to construe the meaning of "right-of-way" in railroad deeds. Please use the following link to read an analysis if the 1997 memorandum by King County Senior Deputy Prosecutor Bill Blakney, proclaiming a new "bright line rule" in construing the term "right-of-way had been established in Brown v. State of Washington (1996).
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      Read an analysis of the dishonest Blakney memorandum September 17, 1997

      Understand Norm Maleng's "legal theory".

         The meaning of the term "right-of-way" has evolved over time. In order to apply the meaning of the term "right-of-way" in construing a deed, it must be understood using the definition that applied at the time of the deed and that was understood by the parties to the deed. Misapplying the legal meaning of words is a favorite tactic of crooked lawyers and judges. This includes the judges of the Washington State Supreme Court in the three times they have refused to review and correct the criminal act committed by King County against the Jerry and Kathy Ray. The judges of the Washington State Supreme Court are active participants 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.

         The legal definition of the term "right-of-way", as it applies to Washington State property law, is principally established in the Washington State common law opinions which deal with the issue. The legal definition of the term "right-of-way", as it applies to acts of the United States Congress, can be understood by the interpretation of federal judges. In this discussion I depend greatly on citations from the Washington State courts and the opinion of the United States Supreme Court in Great Northern R. Co. v. U. S., 315 U.S. 262 (1942). As shown in my annotated versions of King County v. Rasmussen (2001), King County v. Rasmussen, (2002), and Ray v. King County (2004) the judges refused to recognize these opinions by the United States Supreme Court and Washington State courts.
        My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    Since the words of a deed are construed against its author, what the term "right-of-way" meant to the parties of the 1887 Hilchkanum right-of-way deed is important in construing the intentions of the parties to that deed.

         In determining the effect of a deed, the words of the deed are construed most strongly against the party who authored those words. So, in construing the 1887 Hilchkanum right-of-way deed to the SLS&E, determining who authored the deed is a critical material fact. Here's a supporting citation.

      "Initially, it should be noted that contract language subject to interpretation is construed most strongly against the party who drafted it, or whose attorney prepared it. Underwood v. Sterner, supra; Wise v. Farden, 53 Wn.2d 162, 332 P.2d 454 (1958); Restatement, Contracts SS 236 (d) (1932)."
          [Guy Stickney, Inc. v. Underwood(1966)] (Citation highlighted on page three)

         In common law, it is the duty of the court to enforce the intentions of the parties to a deed. Common law makes common sense. It is completely logical for the court to try to understand what the parties intended convey in a deed and enforce that intention. Here's a citation which justifies that rule.

      "In general, when construing a deed, the intent of the parties is of paramount importance and the court's duty to ascertain and enforce."
          [Brown v. State of Washington (1996)]

         The granting clause of the Hilchkanum right-of-way deed to the SLS&E conveyed a "right of way" to the Railway. This is the primary grant in the Hilchkanum deed, and is the portion of the deed most critical to the determination of easement-or-fee. Here is the Hilchkanum granting clause with a link to the complete transcription and a photocopy of the recorded deed.

      May 9, 1887 Hilchkanum right-of-way deed to the SLS&E - Granting Clause:

      "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 lands in said County described as follows to wit."

        [View a photocopy and the full transcription of the May 9, 1887 Hilchkanum right-of-way deed to the SLS&E.]

         It's obvious from reading the deed that the Hilchkanums intended to grant a "right of way" to the SLS&E. The question on this page is: What did the parties to the Hilchkanum deed mean by the term "right of way" when they executed that deed on May 9th, 1887?

What did the term "right of way" mean to the parties to the Hilchkanum deed in 1887?

    The definition of "right-of-way" in Blacks Law Dictionary.

           Black's Law Dictionary has been around for over one-hundred years. As a respected source of legal definitions, here is the definition of "right of way" from the first edition in 1891.

        Black's definition of "right of way" in 1891.

        ď'Right of way', in its strict meaning, is the right of passage over another manís ground; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee simple of lands to be used for a railway or any other kind of way."

      Compare that definition to the "modern" definition. I print here the definition from the fifth addition in 1979.

        Black's definition of "right of way" in 1979.

        "Right of way. Term "right of way" sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and when so used, the term refers to the land itself, not the right of passage over it."

           If a person compares the two definitions, one finds the definition of "right-of-way" has drastically changed over the last one-hundred years. After the King County Prosecutor accepted the phony tax donation of all the land under the ELS right-of-way, he claimed that Bill and Mary Hilchkanum intended to mean the 1979 (and later) definition of "right-of-way" and that they intended their deed to grant fee simple title of the underlying land. How could the Hilchkanums intend a meaning of "right-of-way" that didn't evolve until many years later? It was completely dishonest for Maleng to claim the Hilchkanums intended to use an "unusual" meaning of "right-of-way" which didn't represent the common understanding of the term at the time of their 1887 deed.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

           Of course, Black's Law Dictionary is not legal precedent in Washington State. Black's simply provides an understanding of the legal meaning of words. In order to understand how the term "right-of-way" is defined in Washington State common law, we need to look at the Washington State opinions. The King County Prosecutor and the Hilchkanum judges misrepresented the Washington State common law opinions which explain the meaning of "right-of-way" in the 1887 Hilchkanum deed. So, we look there next.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

    The understanding of the term "right-of-way" in Washington State common law opinions.

           In Washington State common law, where and how the term "right-of-way" is used in a railroad deed explains its definition. When the term "right-of-way" is used in the granting clause or habendum of a railroad deed to specify what is conveyed, the deed has always been found to convey an easement in Washington State/Territory. That "rule" was changed with the Hilchkanum judges involved in the Rasmussen and Ray opinions in order to cover-up 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.

           I suppose the place to start with this examination of Washington State common law is Brown v. State of Washington (1996). After the King County Prosecutor participated in the East Lake Sammamish federal tax fraud scheme, he manufactured a legal excuse to cover-up his crime. I've named his excuse Norm Maleng's "legal theory". The Prosecutor had been involved the easement-of-fee issue in about thirteen SLS&E deeds a few years before he participated in the ELS tax fraud scheme, and all of those deeds were determined to be easements. Since almost all of the East Lake Sammamish SLS&E deeds were essentially identical to deeds that had already been determined to be easements, King County Prosecutor Maleng claimed that there had been a "sea change" and a new "bright line rule" in Brown v. State of Washington which changed one hundred years of common law. Of course, this was a ridiculous lie by Norm Maleng. So, here is a citation from Brown which shows Maleng to be a liar and which was carefully avoided by Maleng and the Hilchkanum judges in their "legal analysis". Brown dealt with railroad deeds written in Statutory Warranty Deed Form. The Brown court repeatedly emphasized that the Milwaukee railroad deeds construed in that opinion were written in a form which is assumed to convey fee simple title. In the following citation, the Brown court distinguishes the Milwaukee railroad deeds in that opinion from deeds which convey a "right-of-way" in granting clause or habendum.
          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)]

           The King County Prosecutor and the Hilchkanum judges involved in the Rasmussen and Ray opinions refused to acknowledge this citation which destroys the Prosecutor's theory that there was a "sea change" or a new "bright line rule" in Brown v. State of Washington. The Brown court cited many previous railroad right-of-way opinions as precedent, and did not declare a "sea change" in Washington State property law. Instead, Brown differentiated between the deeds in Brown, which were in statutory warranty form, and other previously construed deeds which were not in statutory warranty form and specified that a "right-of-way" was conveyed in their granting clause or habendum.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

           As I stated above, the understanding of the term "right-of-way" in a railroad deed is found in the common law opinions which have construed railroad deeds over the years. So, here are forty-four citations which explain the meaning of the term "right-of-way" as defined by the Washington State courts. Each citation is a link which takes the reader to the citation in the context of its complete opinion. The law and the truth are my friend and a mortal enemy to the dishonest judges of the Washington State Supreme Court who have covered-up the East Lake Sammamish federal tax fraud scheme with their three time denial of Jerry and Kathy Ray's appeal for justice (and my family's appeal, by proxy). My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

      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".)

        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".

      The grant of a "right-of-way" conveys an easement in Washington State common law.

           Here are fourteen citations which explain that the grant of a "right-of-way" to a railroad is an easement in a Washington State common law. Each citation is followed by a link which takes the reader to the citation in the context of its complete 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)]

    The precedent in King County v. Squire destroys the Hilchkanum opinions.

           The Washington State opinion, King County v. Squire (1990), destroys the legitimacy of the Hilchkanum judges involved in the Rasmussen and Ray opinions. The Squire court construed a SLS&E right-of-way deed which was executed about five weeks before the Hilchkanum right-of-way deed to the SLS&E. The Squire and Hilchkanum granting clauses are identical and both are obviously written by the lawyers for the SLS&E Railway. The Squire court found the Squire granting clause to "...strongly suggest[] conveyance of an easement...". That identical granting clause was found to convey fee simple title in the Hilchkanum opinions. King County v. Squire (1990) is based on one-hundred years of consistently applied legal precedent in Washington State/Territory. The Hilchkanum opinions are based on Norm Maleng's "legal theory", the dishonest legal argument concocted by Norm Maleng and his staff after they participated in the East Lake Sammamish federal tax fraud scheme. In a nutshell, this explains the state of the law in Washington State. My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.

        Compare the Hilchkanum and Squire right-of-way deeds to the SLS&E.

    The definition of a railroad "right-of-way" in the acts of the United States Congress.

           In its opinion, Great Northern R. Co. v. U. S., 315 U.S. 262 (1942), the United States Supreme Court studied the meaning of the term "right-of-way" in the acts of Congress, looking at the intentions of the Congress in its legislation related to rights-of-way after 1850. Here is an edited portion of Great Northern R. Co. v. U. S. (1942) which explains that Congress intended the words "right of way" to mean an easement in its 1873 Act. The citation is followed by a hyperlink to that complete Supreme Court opinion: (my emphasis in the citation below)

        "Beginning in 1850 Congress embarked on a policy of subsidizing railroad construction by lavish grants from the public domain. This policy incurred great public disfavor which was crystallized in the following resolution adopted by the House of Representatives on March 11, 1872:

          'Resolved, that in the judgment of this House the policy of granting subsidies in public lands to railroads and [315 U.S. 262, 274] other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.' Cong.Globe, 42d Cong., 2d Sess., 1585 (1872).

        After 1871 outright grants of public lands to private railroad companies seem to have been discontinued. But, to encourage development of the Western vastnesses, Congress had to grant rights to lay track across the public domain, rights which could not be secured against the sovereign by eminent domain proceedings or adverse user. For a time special acts were passed granting to designated railroads simply 'the right of way' through the public lands of the United States. That those acts were not intended to convey land is inferable from remarks in Congress by those sponsoring the measures. For example, in reporting a bill granting a right of way to the Dakota Grand Trunk Railway (17 Stat. 202), the committee chairman said: 'This is merely a grant of the right of way'. Likewise, in reporting a right of way bill for the New Mexico and Gulf Railway Company (17 Stat. 343), Mr. Townsend of Pennsylvania, the same Congressman who sponsored the Act of 1875, observed: 'It is nothing but a grant of the right of way.' [315 U.S. 262, 275] The burden of this special legislation moved Congress to adopt the general right of way statute now before this Court. Since it was a product of the sharp change in Congressional policy with respect to railroad grants after 1871, it is improbable that Congress intended by it to grant more than a right of passage..."

        "...The first such interpretation, the general right of way circular of January 13, 1888, was that the Act granted an easement, not a fee. 13 The same position was taken in the regulations of March 21, 1892, 14 L.D. 338, and those of November 4, 1898..."

        "...Also on June 26, 1906, an act was passed confirming the rights of way which certain railroads had acquired under [315 U.S. 262, 277] the 1875 Act in the Territories of Oklahoma and Arizona. The House committee report on this bill said: 'The right as originally conferred and as proposed to be protected by this bill simply grants an easement or use for railroad purposes. Under the present law whenever the railroad passes through a tract of public land the entire tract is patented to the settler or entryman, subject only to this easement'..."
        [Great Northern R. Co. v. U. S., 315 U.S. 262 (1942)]

           This U.S. Supreme Court decision differentiated between the earlier land grant law, which granted land to the railroads, and the later right-of-way laws which granted only easements. The Court found that the term "right-of-way" was understood to mean an easement in the later acts of Congress. The Hilchkanum judges involved in the Rasmussen and Ray opinions refused to acknowledge this analysis by the United States Supreme Court. If the dishonest Hilchkanum judges disagreed with the analysis of the judges of the United States Supreme Court, they should have had the character and honesty to admit this analysis and make an legal argument to justify their disagreement. "Character" and "honesty" are not words which describe the Hilchkanum judges involved in the Rasmussen and Ray opinions.
          My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of MY OPINION.