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Norm Maleng's "legal theory"

by John Rasmussen

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



Introduction:

        This document describes "Norm Maleng's 'legal theory'", a name that I've given to the dishonest legal argument which the King County Prosecutor concocted in order to cover-up his and King County's participation in the East Lake Sammamish federal tax fraud scheme. Below, I describe the background leading to this dishonest argument, then I describe the "Legal Theory" and its elements. Last, I show the "lockstep" coordination in its application by the King County Prosecutor and the state and federal judges who issued the profoundly dishonest King County v. Rasmussen and Ray v. King County opinions.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

Background:

        In the late 1990s, Norm Maleng, the long time Prosecutor of King County, Washington, participated in the East Lake Sammamish federal tax fraud scheme. As a condition of "purchasing" the East Lake Sammamish (ELS) right-of-way from Burlington Northern Santa Fe (BNSF), Maleng agreed to accept a phony donation of land that he knew BNSF didn't own. In order to hide his crime, Maleng needed to establish a reason that BNSF actually owned the right-of-way land it fraudulently donated to the County. If he could make it appear that BNSF owned the land, Maleng would appear to be accepting a legitimate donation. The fact that BNSF hired the disgraced accounting firm, Arthur Andersen, to value the land at a greatly inflated value was not Maleng's problem. That was a separate issue between BNSF, Arthur Andersen, and the IRS.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Maleng's solution was to manufacture a "legal theory" to explain why all the previously construed Seattle, Lake Shore and Eastern Railway (SLS&E) deeds had been found to convey easements, and now magically, all the SLS&E deeds along East Lake Sammamish should be found to grant fee simple title. This land along East Lake Sammamish comprised the phony tax donation from BNSF. If Maleng could make it appear that this land was actually owned by BNSF in fee simple, he and King County were "off the hook" for their acceptance of the phony donation. But, there was a big problem. Most of the SLS&E deeds along East Lake Sammamish were built off a common SLS&E "ELS form deed" in which a right-of-way was conveyed to the Railway in the granting clause. This language in a railroad deed had always been found to grant an easement, not the fee simple title which BNSF and the County were now claiming. In recent years, King County had been involved twice in lawsuits with the question of easement-or-fee of SLS&E deeds a central issue. About thirteen SLS&E deeds were involved in these two lawsuits and the resulting legal opinions, Lawson v. State (1986) and King County v. Squire (1990). All of the deeds involved in Lawson and Squire were determined to be easements either by the court or by admission of the Prosecutor of King County, Norm Maleng. Most of the deeds along East Lake Sammamish had language identical to the deeds that already been determined to be easements in these two lawsuits. The following deeds show the fact that East Lake Sammamish SLS&E deeds have identical language to the 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 Palmberg right-of-way deed to the SLS&E.
          This SLS&E deed was construed to be an EASEMENT in Berres v. US (2011).

      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).

        So, King County Prosecutor Norm Maleng had a big problem. The deeds in Lawson and Squire, which had been determined to be easements, were materially identical to SLS&E deeds along East Lake Sammamish, which Maleng was now claiming granted fee simple title to the underlying land. Maleng's "legal theory" would need to show that something had radically changed in the way deeds are construed. Common law doesn't normally work that way, but Maleng would needed to make that claim in order to keep himself and his staff out of federal prison for accepting a tax donation from BNSF that they knew the Railroad didn't own. Maleng did what a crooked lawyer would do. He looked for an railroad right-of-way opinion which was later that Lawson and Squire, and then claimed that newer opinion had changed the way railroad deeds are construed. The opinion that Maleng chose was Brown v. State of Washington (1996). Brown was almost perfect for Maleng. Brown v. State of Washington was a decision by the Washington State Supreme Court, so it was binding precedent on all the courts of the State. Also, Brown construed railroad deeds to grant fee simple title of the land rather than easements. But, there was still a big problem for Maleng. The problem now was that Brown dealt with Chicago, Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee) deeds, which used the Statutory Warranty Deed Form and were written about twenty years later than the SLS&E right-of-way deeds. First established in 1886, the Statutory Warranty Deed Form is designed for parties to convey fee simple title of property. The use of the Statutory Warranty Deed Form implies that it is the intentions of the party to convey fee simple title. The ELS SLS&E right-of-way deeds were not in Statutory Warranty Deed Form, but rather directly granted a "right-of-way". Railroad deeds which directly grant a "right-of-way" have always been differentiated, and treated differently, than railroad deeds which grant land in Statutory Warranty Deed Form. (By "directly grant a 'right-of-way'", I mean that the term "right-of-way" is used in the granting clause or habendum to specify what is conveyed in the deed.) In fact, Brown directly addressed this difference of how the term "right-of-way" is understood in railroad deeds. This is explained in the citation from Brown directly below.
        (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)]

        This citation was no problem for the crooked King County Prosecutor's office. Maleng and his staff simply refused to acknowledge this contradiction in their analysis of Brown. Instead, the Prosecutor cited the rules to construe railroad deeds in Statutory Warranty Deed Form and then misapplied those rules to the SLS&E deeds which were not in Statutory Warranty Form. This is completely dishonest and is inconsistent with over one hundred years of well understood and applied common law. The common law precedent revealed in the above citation is explained in greater detail below, in a discussion of what I've named 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.)

        Norm Maleng's "legal theory" was first made public on September 17, 1997 when King County Senior Deputy Prosecutor, Bill Blakney, issued a memorandum spelling out the "legal theory" that Brown v. State of Washington (1996) had magically changed one hundred years of consistently held legal precedent. Maleng's "legal theory" contended that, in Brown, the Washington State Supreme 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". In his memorandum, Blakney characterized this radical change in the common law as a "bright line rule" laid down by the Washington State Supreme Court. Later, in a Federal Court brief, Senior Deputy King County Prosecutor Scott Johnson characterized this radical change in the common law as a "sea change" in the way deeds are construed by the Washington State Supreme Court. As proof, Scott Johnson provided a citation to a footnote in the dissenting opinion of Brown. If this were true, it surely would be the first time in the history of U.S. courts that a "sea change" in common law has been signaled in a footnote of the dissenting opinion of a state supreme court. Hyperlinks to these ridiculous claims by the King County prosecutor are provided in the discussion below.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

Senior Deputy Prosecutor Bill Blakney's 1997 Memorandum:

        As I wrote above, Norm Maleng's "legal theory" was first published in Senior Deputy Prosecutor Bill Blakney's 1997 memorandum. My analysis of Blakney's memorandum, hyperlinked directly below, explains King County's dishonesty in establishing Maleng's "legal theory". It shows how the Prosecutor "finds" conclusions in Brown that are not there. It shows how the Prosecutor uses shortened citations from Brown to misrepresent Washington State common law. It shows how the Prosecutor ignores the discussion in Brown which refutes and destroys his argument. It shows the complete dishonesty of Norm Maleng and his staff. My analysis of Blakney's memorandum is hyperlinked here.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Read my analysis of Senior Deputy Prosecutor Bill Blakney's 1997 memorandum.

        Maleng's civil division had lost several important lawsuits involving SLS&E deeds in the years before Blakney's memorandum. King County lost Lawson v. State in 1986 and King County v. Squire in 1990. The lawyer who defeated the County in those two lawsuits is Bellevue attorney Daryl Deutsch. After Blakney's memorandum came out in September 1997, Deutsch wrote a letter to King County Councilwoman Louise Miller, with copies to the full Council, explaining how very wrong Blakney was with his interpretation of Brown. Deutsch's opinion should have been heeded by the King County Council because he was arguably the most knowledgeable lawyer on the subject of railroad right-of-way deeds in the State of Washington at the time.

      Read Attorney Daryl Deutsch's reply to Bill Blakney's Memorandum.

        So, here is Norm Maleng's "legal theory" as expressed in Blakney's memorandum, briefed in King County's lawsuits, and adopted by the Hilchkanum judges who decided King County v. Rasmussen and Ray v. King County. The use of Maleng's "legal theory" in their legal briefs and judicial opinions is documented later on this page, with hyperlinks to the appropriate positions in their dishonest arguments and opinions.


Norm Maleng's "Legal Theory":

    Norm Maleng claims that, in Brown v. State of Washington, the Washington State Supreme Court threw out one hundred years of legal precedent which held the grant of a "right-of-way" to a railroad is an easement, and now the Washington State Supreme Court finds that the grant of a "right-of-way" to a railroad is a fee simple conveyance of the underlying land unless the deed contains a separate statement "expressly and clearly limiting the estate conveyed".

    (Note: The title "Norm Maleng's 'Legal Theory'" is a name assigned by me, John Rasmussen. The "legal theory", itself, is my summation of Blakney's and other King County prosecutor's dishonest legal argument and analysis.)


There are two basic elements to Norm Maleng's "legal theory":

      Element 1: Equate the grant of a "right-of-way" with the grant of a "strip of land". In construing a railroad right-of-way deed to determine easement or fee, "right-of-way" and "strip of land" are contradictory terms. Norm Maleng's "Legal Theory" works to confuse and blur their precedential legal meaning. Norm's "Legal Theory" claims that these two terms mean the same thing in a railroad deed, and that other language must be present in order to determine easement or fee. There was no legal precedent in Washington State common law which supported this substitution of contradictory terms in railroad deeds until the profoundly dishonest Hilchkanum opinions, which are the subject of this website.
          (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

          It's obscene for the King County Prosecutor to claim that Brown v. State of Washington equated the grant of a "right-of-way" with the grant of a "strip of land", because Brown states in clear terms that is not true. Brown carefully differentiates between the grant of a "right-of-way" and the grant of a "strip of land", and repeatedly states that the court is dealing only with deeds which grant a "strip of land". Further, the Brown court explains that the meaning of the term "right-of-way" in a railroad deed is determined by where and how it is used in the deed. The following Brown citation was carefully avoided by the King County Prosecutor and the Rasmussen and Ray judges because it destroys their misrepresentation of Brown v. State of Washington and it destroys their misrepresentation of the meaning of the grant of a "right-of-way" in a railroad deed. (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)]

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

          View a study of the legal meaning of "right-of-way" in a railroad deed.

      Element 2: Require a separate statement "expressly and clearly limiting the estate conveyed" in order to find the conveyance of an easement. The lawyers and judges do this by applying the "Railroad Land Granting Rule" to deeds that should be construed using the "Railroad Right-of Way Granting Rule". These two granting rules are explained below. All the dishonest King County briefs and all the dishonest Hilchkanum opinions use this same dishonest method to establish "Element 2". They "march in lockstep". After substituting the words "strip of land" for "right of way" in the Hilchkanum right-of-way deed (Element 1), these dishonest lawyers and judges cite the discussion in Brown v. State of Washington (1996) relating to "strips of land" for precedent. Since Brown cites King County v. Hanson Inv. Co. (1949) for the need to include a separate statement "expressly and clearly limiting the estate conveyed", all of the dishonest lawyers and judges cite Hanson, too. Brown correctly construed deeds which granted "strips of land" to a railroad. After changing the words in the Hilchkanum granting clause to "strip of land", the King County lawyers and the Hilchkanum judges dishonestly apply the Brown analysis to the Hilchkanum deed. They do this in spite of the fact that the Hilchkanum deed plainly grants a "right of way". For proof, here is the Hilchkanum granting clause with a link to a photocopy and transcription of the full deed. The crooked King County Prosecutor and all the Hilchkanum judges state the granting clause conveys a "strip of land". Read the deed to understand that the Hilchkanum granting clause conveys a "right of way", not a "strip of land". (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        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 full transcription of the May 9, 1887 Hilchkanum deed to the SLS&E.]

        Of course, the Washington State Supreme Court did not magically change one hundred years of common law precedent in Brown v. State of Washington (1996). There is no "bright line rule" laid down in Brown. There is no "sea change". Instead, in Brown the court cited and relied on the past Washington State precedential railroad right-of-way opinions in order to construe the Brown deeds. All of the deeds construed in Brown conveyed strips of land. The Hilchkanum right-of-way deed to the SLS&E grants a right-of-way. The rules used to construe railroad deeds which convey land are well understood and have not changed over time. The same is true for the rules used to construe railroad deeds which convey rights-of-way. Norm Maleng's "legal theory" is based on an intentional confusion of these two rules.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

The Rules to Construe Railroad Deeds:

        The Washington State precedential railroad right-of-way opinions establish the rules used to construe railroad deeds. Below, I describe several of these rules which apply to the discussion here. The rules are different for the grant of a right-of-way than for the grant of land. While the courts have not given these rules names, I've named these rules for the sake of clarity and brevity in this discussion. Whatever name they're called, the underlying common law precedent is the only important factor. I've named them the "Basic Rules to Construe a Deed", the "Railroad Land Granting Rule" and the "Railroad Right-of-Way Granting Rule".

      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.
      [Understand the Basic Rules to Construe a Deed, with supporting precedent.]

      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.]

        Norm Maleng's civil division was well aware of these rules to construe railroad deeds. It is essentially impossible that King County Deputy Prosecutors Blakney and Johnson were unaware. Their legal briefs are not unintentional mistakes by inexperienced lawyers. The King County Deputy Prosecutors intentionally misstated the law in order to keep their boss, Norm Maleng, and the leadership of King County from being held accountable for their participation in the East Lake Sammamish federal tax fraud scheme. The same is true for the federal and state judges who adopted Norm Maleng's "legal theory" in their opinions. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)



EVIDENCE OF NORM MALENG'S "LEGAL THEORY" IN LEGAL BRIEFS AND JUDICIAL OPINIONS:

        After its first introduction in Blakney's 1997 memorandum, Norm Maleng's "legal theory" was used as the basis of argument in King County v. Rasmussen (2001), King County v. Rasmussen (2002), and Ray v. King County (2004). Scott Johnson is the King County Deputy Prosecutor who authored the County's dishonest briefs in these lawsuits. While Johnson's actions are criminal, the more serious crime is the acceptance Norm Maleng's "legal theory" in the judicial opinions. Maleng's "legal theory" was adopted by the judges in each of the three opinions listed here, and described below. This section of this page will provide the evidence of Norm Maleng's "legal theory" in all these documents.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)



THE LEGAL BRIEFS:


    Here, I present five King County legal briefs which use Norm Maleng's "legal theory" as a basis for important parts of their arguments. The first brief is the 1997 memorandum by Senior Deputy Prosecutor Bill Blakney which originally presented Maleng's "legal theory". The other three briefs, authored by Senior Deputy Prosecutor Scott Johnson (and Senior Deputy Prosecutor Howard Schneiderman), are the County's legal arguments in lawsuits dealing with the 1887 Hilchkanum right-of-way deed to the SLS&E. Both of these King County Deputy Prosecutor's are profoundly dishonest lawyers. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


Bill Blakney Memorandum, September 17, 1997

      View a photocopy of this September 17, 1997 Blakney Memorandum.

      View an analysis of this September 17, 1997 Blakney Memorandum.

        As discussed above, the first appearance of Norm Maleng's "legal theory" is found in King County Senior Deputy Prosecutor Bill Blakney's memorandum on September 17, 1997. Norm Maleng's "legal theory" is stated at the beginning of Blakney's memorandum with these words: (with my emphasis)

      "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."
      [Open the analysis of Blakney's memorandum at this first statement of Norm Maleng's "legal theory".]

        Of course, this statement by Blakney is an intentional lie. There is no statement in Brown v. State of Washington holding the grant of a "right-of-way" to a railroad conveys the underlying strip of land. In fact, Brown found quite the opposite. Please use the link attached to the above quote for a detailed analysis of the Blakney memorandum at that statement.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        As I stated above, Norm Maleng's "legal theory" has two basic elements. The first element is to misrepresent and confuse the legal meaning of the term "right-of-way", and then equate the term "right-of-way" with the term "strip of land". Blakney presents Element 1 in his memorandum with this statement:

      "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.'"
      [Open the annotated version of Blakney's memorandum at this location.]

        This dishonest substitution of contradictory terms to support Element 1 of Norm Maleng's "legal theory" is found in King County's briefs and in each of the judicial opinions which construed the Hilchkanum right-of-way deed. Use the link attached to the above quote for a detailed explanation.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Senior Deputy Prosecutor Bill Blakney presents Element 2 in his memorandum at the hyperlink below. Blakney misapplies King County v. Hanson Inv. Co. (1949) in his dishonest contention that a separate statement "expressly and clearly limiting the estate conveyed" is required in order to find the grant of a right-of-way to be an easement. (with my emphasis)
        (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. 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."
      [Open the annotated version of Blakney's memorandum at this location.]

        This misapplication of King County v. Hanson Inv. Co. (1949) to support Element 2 of Norm Maleng's "legal theory" is found in the briefs and opinions discussed below.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


"King County's Motion for Preliminary Injunction and Brief in Support Thereof", Superior Court, August 31, 2000

      View a photocopy of this King County motion and brief.

        This King County v. Rasmussen motion and brief was the first presentation of Norm Maleng's "legal theory" by King County Deputy Prosecutors Scott Johnson and Howard Schneiderman. The motion and brief was presented to Judge Palmer Robinson in King County Superior Court, but was then transferred to Judge Donald Haley after our request for a change of judges. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        The hearing in front of Judge Haley was held on September 14, 2000. In that hearing, Scott Johnson's partner in crime, Senior Deputy Prosecutor Howard Schneiderman, presented perjurious lies and slanderous declarations in order to threaten me and to stop my interference with the County's theft of my land. The County claimed I was illegally threatening King County employees. The truth is quite the opposite. Schneiderman's presentation was simply the third element of the King County tactic I've named "Lie, Stonewall, and Slander". The County's claims of threats by me were an obvious tactic by the County to threaten me with false felony prosecution. The proof of that statement is in my annotated version of documents associated with the hearing. While the corruption in King County Courts is not the focus of this page, it is important for the reader to understand the briefing of Norm Maleng's "legal theory" required acceptance by dishonest judges who were committed to cover-up the East Lake Sammamish federal tax fraud scheme and protect the leadership of King County. So, I provide a link to the annotated version of the preliminary injunction hearing. If the reader follows that link, the outright lies by the prosecutors are exposed and further links to the slanderous declarations are provided.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View an annotated transcript of King County v. Rasmussen, Preliminary Injunction Hearing, September 14, 2000.

        Besides the slanderous description of me in this brief, Scott Johnson and Howard Schneiderman provide the County's first court briefing of Norm Maleng's "legal theory". That briefing starts on page 7 under the heading "CLEAR LEGAL RIGHT". Starting at that position in their brief, Johnson and Schneiderman begin to lay out Norm Maleng's "legal theory" as the basis of the County's likelihood of prevailing in its claim of ownership of my land. On Page 8 of this brief, Johnson and Schneiderman explicitly use Norm Maleng's "legal theory" as the only justification for the County's claim of ownership. That section of their brief is provided here. (with my emphasis in bold)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "If a deed conveys a definite strip of land and contains no language limiting the purpose of the conveyance, the deed conveys a fee simple interest in the strip of land regardless of the caption of the deed. Brown v. State, 130 Wn.2d 430,439-440 and 444 (citations omitted). To convey a conditional or reversionary estate, the words in the deed must clearly and expressly indicate such an intent. Brown at 438 (citing King County v. Hanson Inv. Co., 34 Wn.2d 112,208 P.2d 113 (1949).

      In Brown, one of the deeds at issue - the "Simpson deed" - was a conveyance from a landowner to a railroad, and was captioned "Right of Way Deed". Brown at 444. The Simpson deed described a strip of land, but did not expressly convey fee title. Id. Because, the purpose of the conveyance was not limited, the Court found that the deed conveyed fee simple title regardless of the caption. Id.

      In the case at bar, the intent of the parties to the Hilchkanum deed is similarly made clear by the deed itself. The deed describes a strip of land by defining its boundaries in terms of the centerline. The centerline is described with particularity in terms of metes and bounds. There are no words expressly limiting the estate conveyed. In fact, the deed grants the interest conveyed to the grantee's successor and assigns forever without limitation. Moreover, the deed contains no reversionary clause of any kind. "
      [Open "King County's Motion for Preliminary Injunction and Brief in Support Thereof", go to Page 8]

        The first paragraph in the above quotation provides the legitimate conclusion of the Brown court that if "...a deed conveys a definite strip of land and contains no language limiting the purpose of the conveyance, the deed conveys a fee simple interest in the strip of land...". It's critical to understand that Brown dealt only with deeds which conveyed a "strip of land". Then in the third paragraph, Johnson and Schneiderman present Element 1 of Norm Maleng's "legal theory" with this statement: "The deed describes a strip of land". They refuse to state the truth that the Hilchkanum deed grants a "right of way", and that the grant of a "right of way" to a railroad is held to be an easement in Washington common law. Instead, these slimy liars state that "The deed describes a strip of land" and imply with their statement that the Hilchkanum deed "...conveys a definite strip of land..." in the same manner as the deeds in Brown. These two dishonest King County lawyers intentionally confuse the description of a strip of land in the Hilchkanum deed with the grant of a "strip of land" in the Brown deeds. That is exactly the tactic used in Element 1 of Norm Maleng's "legal theory".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Element 2 of Norm Maleng's "legal theory" is expressed in the third paragraph, quoted above, with the prosecutor's statement that "There are no words expressly limiting the estate conveyed." With these two statements, Johnson and Schneiderman use both elements of Norm Maleng's "legal theory" in their analysis of the Hilchkanum deed, and claim that their dishonest analysis establishes the likelihood of prevailing with their claim of ownership. They conveniently forget to recognize one hundred years of legal precedent which holds that the conveyance of a "right-of-way" in the granting clause of a railroad deed limits the estate granted to an easement. That is the precedent that honest lawyers and honest judges are required to apply to an analysis of Hilchkanum right-of-way deed.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


King County's Brief in Support of Summary Judgment to Federal District Court, February 15, 2001

      View a photocopy of this King County brief.

      View an analysis of this King County brief.

        This King County v. Rasmussen brief in support of summary judgment relies heavily on Norm Maleng's "legal theory". At the bottom of page 8 of his summary judgment brief, Scott Johnson presents both elements of Norm Maleng's "legal theory". After dishonestly inferring that the Hilchkanum right-of-way deed grants a "strip of land" to the Railway (Element 1), Johnson claims that additional limiting language is needed in order for the deed to be construed an easement (Element 2). He cites Brown for authority. Since, that Brown citation takes the reader to King County v. Hanson Inv. Co. (1949), Scott Johnson cites Hanson also. Here is a portion of Johnson's page 8 and 9 briefing. (with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "In Washington state, if a deed conveys a definite strip of land and contains no language limiting the purpose of the conveyance, the deed conveys a fee simple interest in the strip of land - not an easement. [...] In order for the deed to convey something less that a fee simple estate, words in a deed must clearly and expressly indicate an intent to make the estate conditional. Brown at 438 (citing King County v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949))" [King County Summary Judgment Brief, Go to Pages 8 and 9.]

      Read a detailed analysis of the Prosecutor's use of Element 1 in his above statement.

      Read a detailed analysis of the Prosecutor's use of Element 2 in his above statement.

        On page 10 of his brief in support of summary judgment, Scott Johnson presents both Element 1 and Element 2 of Norm Maleng's "legal theory" a second time, with this statement. (my emphasis)

      "Here, the intent of the parties is made clear by the deed. The Hilchkanum deed describes a specific strip of land by defining its centerline and boundaries with specificity. See Exhibit 1 to DeGoojer Decl. In addition, the language of the Hilchkanum deed does not expressly limit the estate conveyed. To the contrary, the deed conveys the premises and appurtenances to the grantee's successor and assigns forever without limitation. Id. Moreover, the deed contains no reversionary clause of any kind."
      [King County Summary Judgment Brief, Go to Page 10.]

      Read a detailed analysis of the Prosecutor's use of Norm Maleng's "legal theory" in his above statement.


King County's Reply Brief in Support of Summary Judgment to Federal District Court, April 19, 2001

      View a photocopy of this King County brief.

      View an analysis of this King County brief.

        Scott Johnson, Senior Deputy King County Prosecutor, continues his claim of Norm Maleng's "legal theory" in this reply brief. In his statement below, Johnson claims that the Washington State Supreme Court signaled a "sea change" in the way it construes railroad deeds in Brown. Scott Johnson cites "note 4" in Brown as authority for his "sea change" theory. But, when one goes to footnote 4 in Brown v. State of Washington (1996) there is no language which supports Johnson's "sea change". As one reads Brown, eventually one discovers the language that Johnson is citing. Scott Johnson is referring to footnote 14 in the Brown dissenting opinion for his "sea change" theory. This is but one example of the profound dishonesty of the King County Prosecutor in the Hilchkanum lawsuits. In a public letter to the Judges of the Washington State Supreme Court on March 31, 2009, I challenged the judges to verify that they threw out more than one hundred years of railroad right-of-way precedent in the Brown dissenting opinion. Of course, there was no reply to this question!
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Footnote 5 "The Brown court acknowledges that in every prior case where the Washington State Supreme had considered a deed conveying an interest in a narrow strip of land to a railroad it found only an easement was conveyed, Brown 130 Wn.2d 430 at note 4. The fact that the court goes on to find a variety of instruments - including a quitclaim deed, indentures and the Simpson deed - conveying strips of land to railroads granted fee simple title in those strips should be taken as an expression of the court's intent to effect a sea change in the way such instruments are interpreted."
      [Open Scott Johnson's reply brief and go to the bottom of Page 6 to find Footnote 5.]

      View Justice Sanders' Footnote 14 from Brown (dissenting) to confirm Johnson is not citing Brown "note 4".

        Scott Johnson's "sea change" is just another statement of Element 1 of Norm Maleng's "legal theory". His "sea change" misrepresents the opinion of the Brown court by stating that "an interest in a narrow strip of land" is the same as a "fee simple title in those strips". That is not the conclusion of the Brown majority, and it is not the conclusion of Washington State Supreme Court Justice Sanders in his dissent. This technique of misstating and confusing the meaning of a right-of-way in a railroad deed is Element 1 of Norm Maleng's "legal theory".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        With his analysis on pages 6 and 7 of his brief, Scott Johnson tries to blur the legal meaning of the term "right-of-way" into a non-meaning. He does this by blending the meaning of "right-of-way" in the granting clause into its meaning in the legal description and the caption. Instead of briefing the fact that the legal meaning of "right-of-way" is understood by where-and-how it is used in a railroad deed, Johnson works to confuse the meaning. Please use the links following the quotation to understand this dishonest tactic. It was necessary to destroy the precedential understanding of "right-of-way" in order to establish Element 1 of Norm Maleng's "legal theory". Abbreviated portions of Johnson's argument on page 7 are shown. (with my emphasis (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "Defendants attempt to distinguish the Hilchkanum deed by arguing that "right of way" is used in the granting clause as well as the legal description. However, their argument fails when one considers that the legal description is considered part of the granting clause. Morsbach v. Thurston County, 152 Wash. 562, 566, 278 P. 686 (1929) [.....] Furthermore, the second occurrence of "right of way" in the Hilchkanum deed is preceded with "such". The only reasonable inference to draw from that language is that the second occurrence refers back to the first occurrence. Therefore, it is unreasonable for Defendants to concede that the second occurrence of "right of way" describes a strip of land or parcel but the first occurrence is express limiting language."
      [Open Scott Johnson's reply brief and go to the bottom of Page 6 to find the beginning of this discussion.]

      View my analysis of Johnson's attempt to blur and confuse the meaning of "right-of-way" on pages 6 and 7 of his brief.

        Johnson lies when he states that "the legal description is considered part of the granting clause". Morsbach v. Thurston Co. (1929) was a unique case in which the granting clause referred to the legal description to define what was granted. Johnson's dishonesty in confusing the legal meaning of "right-of-way" and establishing Element 1 of Norm Maleng's "legal theory" is explained in greater detail in my analysis linked above.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Next, Scott Johnson describes Element 2 of Norm Maleng's "legal theory" on page 9 of his reply brief. He claims that "land" was granted in the Hilchkanum right-of-way deed because there was no language "clearly and expressly limiting the interest" conveyed. (with my emphasis)

      "As the Brown court indicated, determining the purpose of the conveyance is a case by case analysis to determine if the parties "clearly and expressly limited the interest granted". Id. at 440. Defendants have failed to offer evidence that would lead to a reasonable inference that Hilchkanum clearly and expressly limited the interest granted to an easement."
      [Open Scott Johnson's reply brief and go Page 9 to find this discussion.]

      View my analysis of Johnson's use of Element 2 of Norm Maleng's "legal theory" page 9 of his brief.

        Scott Johnson uses both Elements 1 and 2 of Norm Maleng's "legal theory" in this brief and every other brief related to the Hilchkanum lawsuits. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


King County's Brief to the Ninth Circuit Appeals Panel, September 5, 2001

      View a photocopy of this King County brief.

      View an analysis of this King County brief.

        Scott Johnson continues his promotion of Norm Maleng's "legal theory" in this brief to the Ninth Circuit appeals panel. In his "Statement of Facts" on page 2 of his Ninth Circuit brief (PDF page 10), Scott Johnson states that the Hilchkanums conveyed a "strip of land" in their right-of-way deed to the SLS&E. He refers the grant of a "strip of land" five times on that page. This is a statement of Element 1 of Norm Maleng's "legal theory". It would have been proper to refer to an "interest in a strip of land", but it was dishonest to refer to the grant as a "strip of land". The Hilchkanum right-of-way deed granted neither of these. The Hilchkanum right-of-way deed granted a "right of way".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View this King County brief. Go to page 2 (PDF page 10) to view "strip of land" used five times.

      View an analysis of this dishonest substitution of words in the Hilchkanum right-of-way deed.

        At the bottom of page 11 and top of page 12 of his brief (PDF pages 19 and 20), Scott Johnson states both Element 1 and Element 2 of Norm Maleng's "legal theory". On this page, Johnson misapplies the finding in King County v. Hanson (1949) in order to misconstrue the Hilchkanum right-of-way deed. Citing Hanson, Johnson makes this statement. (my emphasis in bold font) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The court in King County v. Hanson, 34 Wn.2d 430 112, 208 P.2d 113 (1949), explained that it is settled law in Washington 'that a deed which by its terms conveys the land to a grantee operates as a grant of the fee although it may also contain a recital designating, or ever restricting, the use to which the land may be put.' Id. at 119 (emphasis supplied by the court). The Hanson court also cited to the general rule that 'to make an estate conditional, the words used in the deed must clearly indicate such an intent, either by express terms or my necessary implications from the term used.'"
      [Open a photocopy of this King County Prosecutor's brief. Go to the bottom of Page 11. (PDF page 19)]

      View my analysis of Johnson's dishonest use of King County v. Hanson (1949) in the above quotation.

        With reference to Johnson's above statement of Element 1 of Norm Maleng's "legal theory", here is the citation from King County v. Hanson (1949). I've added a link to read the citation in the context of the full opinion, for better reference.

      "It is also the settled rule in this state, as elsewhere, that a deed which by its terms conveys the land to a grantee operates as a grant of the fee, although it may also contain a recital designating, or even restricting, the use to which the land may be put."
      [King County v. Hanson Inv. Co. (1949)]

        On these two pages of his brief, Johnson identifies the finding in King County v. Hanson (1949) in order to misapply it to the Hilchkanum right-of-way deed. This Hanson citation relates to the grant of "land" and would not apply to the Hilchkanum deed, which grants a "right of way".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Next, the discussion, starting at the bottom of page 12 and continuing through page 15 (PDF pages 20-23) of Scott Johnson's brief, presents Element 2 of Norm Maleng's "legal theory". Element 2 requires that a deed granting a right-of-way will be found to convey an easement only when "the deed contains a separate statement expressly and clearly limiting the estate conveyed". The following portion of Johnson's brief, found on page 14 (PDF page 22), sums up his argument. (Johnson's emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The [Brown] court acknowledged that "...the use of the term 'right of way' as a limitation or to specify the purpose of the grant generally creates only an easement." Id. (emphasis added). However, the court took great pains throughout the decision to explain that the parties must have clearly or expressly intended to have the words limit the interest granted. Id. at 440. Merely using the phrase "right of way" is insufficient by itself."
      [Open Scott Johnson's reply brief and go to Page 14 (PDF page 22) to find this statement.]

      View my analysis of this Scott Johnson claim that the Hilchkanum deed needs separate language to be an easement.

        Scott Johnson summarizes Norm Maleng's "legal theory" on page 16 (PDF page 24) of his brief, stating both Element 1 and Element 2. He establishes Element 1 by implying the Hilchkanum deed grants a strip of land. He then establishes Element 2 by finding the grant to be fee simple because the Hilchkanum deed "does not expressly limit the estate conveyed." These are the two essential Elements which establish Norm Maleng's "legal theory". View this statement on page 16 (PDF page 24) to verify his claim. (with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The Hilchkanum deed describes a strip of land of specific width and location. In addition, the language of the Hilchkanum deed does not expressly limit the estate conveyed. It does not contain language specifying that the strip of land is granted for "the purpose of a right of way for a railroad" of limits use to "so long as said land is used as a right of way by said railway company" or similar language. To the contrary, the deed conveys the premises and appurtenances to the grantee's successor and assigns forever without limitation."
      [Open Scott Johnson's reply brief and go to Page 16 (PDF page 24) to find this statement.]

      View my analysis of Scott Johnson's dishonest statement of Norm Maleng's "legal theory" on page 16 (PDF page 24) of his brief.

        On pages 17 and 18 (PDF pages 25 and 26) of his brief, Scott Johnson dishonestly briefs Element 1 of Norm Maleng's "legal theory" by claiming that the grants in the Simpson and Roeder III deeds are the same as the grant in the Hilchkanum deed. The Simpson and Roeder III deeds grant "land". The Hilchkanum deed grants a "right-of-way".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View my analysis of Scott Johnson's dishonest statement of Norm Maleng's "legal theory" on pages 17 and 18 (PDF pages 25 and 26) of his brief.

        Additionally, Scott Johnson has the habit of hiding his most dishonest statements in his footnotes. At the bottom of page 17 of his brief, Johnson inserts a very dishonest misanalysis of common law with his footnote 3. Here is that footnote.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "3 Appellants attempt to distinguish the Hilchkanum deed by arguing that "right of way" is used in the granting clause as well as the legal description. Appellants' Brief at 21-22. However, their argument fails when one considers that the legal description is considered part of the granting clause. Morsbach y. Thurston County, 152 Wash. 562, 566,278 P. 686 (1929) and Veach v. Culp, 92 Wn.2d at 573-4. Therefore, technically, the use of the term "right of way" is also found in the granting clause of the Simpson Deed."
      [Open Scott Johnson's reply brief and go to Footnote 3 on Page 17 (PDF page 25) to find this statement.]

      View my analysis of Scott Johnson's dishonest statement of Norm Maleng's "legal theory" on pages 17 and 18 (PDF pages 25 and 26) of his brief.

        In this analysis of Morsbach, Johnson lies when he states that "the legal description is considered part of the granting clause". I discussed this dishonesty earlier in this document. Morsbach is a unique case in which the granting clause referred to the legal description to define what was granted. This intentional confusing of the legal meaning of "right-of-way" is Element 1 of Norm Maleng's "legal theory".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        From the above discussion, one understands that Scott Johnson uses both Element 1 and Element 2 of Norm Maleng's "legal theory" in every brief related to the Hilchkanum lawsuits.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)





THE JUDICIAL OPINIONS:

        There are three published opinions which dishonestly construe the Hilchkanum right-of-way deed to the SLS&E. The first two are from my lawsuit, King County v. Rasmussen (2001) and King County v. Rasmussen (2002). The third is the Washington State Appeals Court opinion Ray v. King County (2004). All three opinions are completely dishonest and rely on Norm Maleng's "legal theory" in order to misapply the law. Here, each judicial opinion will be discussed with hyperlinks to the areas where the elements of Norm Maleng's "legal theory" are adopted.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)


King County v. Rasmussen (2001)

      Open an annotated version of King County v. Rasmussen (2001), containing brief comments.

        It is obvious, from the complete dishonesty throughout Federal District Judge Barbara Jacobs Rothstein's opinion, that someone "got to this judge". This first citation takes the reader to Rothstein's dishonest use of King County v. Hanson Inv. Co. in support of Element 2 of Norm Maleng's "legal theory", requiring limiting language. (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The intent of the parties is "of paramount importance" when interpreting deeds. Brown v. State, 130 Wn.2nd 430, 924 P.2d 908, 911 (1996). 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."
      [View this citation from King County v. Rasmussen (2001) with my added detailed comments.]

        When Judge Rothstein describes the "Language of the Deed", she misrepresents the common law meaning of the words. Rothstein states that the Hilchkanum deed is an "unconditional grant" of land which does not "restrict the conveyance by designating a specific purpose". This is a statement of Element 2 of Norm Maleng's "legal theory". (citation with my emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The Hilchkanum deed's overall language does not restrict the conveyance by designating a specific purpose, by limiting use of the land, or by adding a reversion clause. The omissions result in an unconditional grant and distinguish the deed from those in which courts have found easements. See Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855, 859 (1986) ("for all railroad and other right-of-way purposes"); Swan v. O'Leary, 37 Wn.2d 533, 225 P.2d 199 (1950) ("for the purpose of a Railroad right-of-way"); Northlake Marine Works, Inc. v. City of Seattle, 70 Wn. App. 491, 857 P.2d 283, 286-287 (1993) ("to its successors and assigns forever for railway purposes"); King County v. Squire Inv. Co., 59 Wn. App. 888, 801 P.2d 1022, 1023 (1991) ("so long as said land is used as a right-of-way by said railway Company... and this grant is upon the condition that said railway shall be completed over said lands on or before January 1st, 1888"). In contrast to those cases, the open-ended language of the Hilchkanum deed shows intent to convey a fee."
      [View this citation from King County v. Rasmussen (2001) with my added detailed comments.]

        Here is another citation in which Rothstein claims that the Hilchkanum right-of-way deed needs a separate "specific restriction on use" in order to be found an easement. This does not represent common law, but rather is a statement of Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The Rasmussens ignore the "entire instrument's" unconditional language and instead urge the court to focus on isolated words. For example, they note that the Hilchkanum deed recognizes the Railway will build tracks on the land. However, an acknowledgement of the probable use cannot limit the conveyance unless accompanied by a specific restriction on use - something the Hilchkanum deed lacks. See Scott, 299 P.2d at 205 (fee simple when deed acknowledged that land would be used for railway but did not include any specific limitations); see also Brown, 924 P.2d at 913. Similarly, the Rasmussens claim the deed limits the conveyance by using the term "right of way" in the text and caption, but courts have rejected this narrow view as well. See, e.g., Brown, 208 P.2d at 912, 915 (railroad can obtain a "right of way" as either a fee or an easement); Harris 844 P.2d at 1011-13 (1993) (court found fee simple despite right of way language); Roeder Co. v. K&E Moving & Storage Co., Inc., 102 Wn. App. 49, 4 P.2d 839, 842-43 (2000)."
      [View this citation from King County v. Rasmussen (2001) with my added detailed comments.]

        In this last citation, Rothstein intentionally misstates the language in the Hilchkanum right-of-way deed by stating the deed grants a "'strip' of land". This substitution of the granting words is Element 1 of Norm Maleng's "legal theory". She then concludes the Hilchkanum right-of-way deed grants fee simple interest because it "contains no restriction" on the grant of the "'strip' of land". This lack of a restriction statement is an adoption of Element 2 of Norm Maleng's "legal theory". (citation with my emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "Moreover, other aspects of the language favor a fee simple. The deed grants a "strip" of land described in metes and bounds rather than merely a right "over" the land (as it does with the tree-cutting grant). The deed uses the word "convey" when granting the strip, which is associated with fee transfers (notably, "convey" is absent in the tree-cutting grant). See Hanson, 208 P.2d at 119. Finding that the overall language contains no restriction, the court concludes that the Hilchkanums intended to convey a fee interest to the Railway."
      [View this citation from King County v. Rasmussen (2001) with my added detailed comments.]


King County v. Rasmussen (2002)

      Open an annotated version of King County v. Rasmussen (2002), containing brief comments.

        Senior Ninth Circuit Judge Betty Binns Fletcher denied my constitutional rights and supported the dishonest judgment by Federal District Judge Rothstein. She covered up the East Lake Sammamish federal tax fraud scheme with her appeals court opinion. Fletcher cites King County v. Hanson Inv. Co. with this sentence: "However, the parties must 'clearly indicate' an intent to make a conveyance conditional." Element 2 of Norm Maleng's "legal theory" relies on the misapplication of Hanson as a basis of its dishonest argument. (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "A conveyance of a right of way to a railroad may be in fee simple, or it may be an easement. Veach v. Culp, 599 P.2d 526, 527 (Wash. 1979). The intent of the parties is of paramount importance in determining what interest the deed conveyed. Brown v. State, 924 P.2d 908, 911 (Wash. 1996). It has been said that it is a factual question to determine the intent of the parties. Veach, 599 P.2d at 527. But the intent of parties to a deed as well as the legal consequences of that intent are in reality mixed questions of law and fact: legal rules of deed interpretation determine how the underlying facts reflect the intent of the parties. See Brown, 924 P.2d at 912 (determining intent from undisputed underlying facts on summary judgment). To ascertain the intent of the parties, one must look to the language of the deed as well as the circumstances surrounding the deed's execution and the subsequent conduct of the parties.(6)Id. However, the parties must "clearly indicate" an intent to make a conveyance conditional. King County v. Hanson Inv. Co., 208 P.2d 113, 119 (1949) (cited in Brown, 924 P.2d at 912)."
      [View this citation from King County v. Rasmussen (2002) with my added detailed comments.]

        This next citation takes the reader to Judge Fletcher's discussion of the issue of "Easement or Fee Simple". Fletcher adopts Norm Maleng's "legal theory" by requiring "language clearly limiting the use of the land to a specific purpose" in order to find the Hilchkanum deed an easement. This dishonest analysis abandons common law and is a statement of Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "[2] Here the term "right of way" appears in the granting clause as well as in the legal description.(11) In this sense, the Hilchkanum deed suggests a possible intent to create only an easement in a way the deeds at issue in Brown did not. However, neither the granting nor the habendum clauses contains language clearly limiting the use of the land to a specific purpose. In virtually all cases where Washington courts have found only an easement, the granting or the habendum clauses contained such language. [...........] Without such additional language, the use of the term "right of way" merely "begs the question" since a railroad could own a right of way either as an easement or in fee. Brown, 924 P.2d at 914."
      [View the full citation from King County v. Rasmussen (2002) with my added detailed comments.]

        In this citation, Judge Fletcher claims that the Hilchkanum deed grants a "strip of land" in spite of the fact that the words of the Hilchkanum deed plainly state that a "right of way" is granted. This misstatement of what Hilchkanum granted is Element 1 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "[4] First, the district court compared the Hilchkanum deed's language granting an interest in the strip of land with its language granting the Railway the right to enter the adjacent land to cut trees:

        The deed grants a "strip" of land described in metes and bounds rather than merely a right "over" the land (as it does with the tree-cutting grant). The deed uses the word "convey" when granting the strip, which is associated with fee transfers (notably, "convey" is absent in the tree-cutting grant). See Hanson, 208 P.2d at 119.

      Id. We agree with the district court that these factors indicate that Hilchkanum intended to convey a fee simple interest in the strip of land described. Furthermore, the fact that he explicitly limited the purpose of the Railway's right to enter the adjacent land demonstrates that he was aware of the distinction between an easement and a fee simple conveyance."
      [View this citation from King County v. Rasmussen (2002) with my added detailed comments.]

        With this last citation, Judge Fletcher claims that the Hilchkanum deed needs "additional language explicitly restricting the grant to railroad purposes and providing that the interest would revert to the grantor if the railroad ceased to operate" in order to be found an easement. These statements are and adoption of Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "[6] Finally, the district court properly looked to the circumstances surrounding the execution of the Hilchkanum deed and concluded that they confirmed the parties' intent to convey a fee simple estate. Rasmussen, 143 F. Supp. 2d at 1230. Deeds to the Railway from other landowners executed in the same year as the Hilchkanum deed used the same form but contained additional language explicitly restricting the grant to railroad purposes and providing that the interest would revert to the grantor if the railroad ceased to operate. See Squire, 801 P.2d at 1023; Northlake Marine Works, Inc. v. City of Seattle, 857 P.2d 283, 286-87 (Wash. Ct. App. 1993). The differences in these deeds reflected the common practice of the railroads of using fee simple form deeds and adding language to include limitations requested by landowners. See Danaya C. Wright & Jeffrey M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements From the Nineteenth to the Twenty-First Century, 27 Ecology L.Q. 351, 378 (2000). The deed in question here suggests that the Hilchkanums requested no such limitations."
      [View this citation from King County v. Rasmussen (2002) with my added detailed comments.]


Ray v. King County (2004)

      Open an annotated version of Ray v. King County (2004), containing brief comments.

        Since the Washington State Supreme Court refused to consider appeal, this decision ended the Ray's quest for their property rights in Washington State courts. This dishonest opinion was written by Ronald E. Cox, Chief Judge, Court of Appeals for the State of Washington, Division One. Early in his opinion, Judge Cox introduces Element 1 of Norm Maleng's "legal theory" with this citation implying the grant of a "right-of-way" to a railroad may be fee simple. (citation with my emphasis) (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "Where a deed conveys a right of way to a railroad, the conveyance may be in fee simple or may be an easement only.11 The interpretation of such a deed is a mixed question of fact and law.12 It is a factual question to determine the intent of the parties.13 Courts must then apply the rules of law to determine the legal consequences of that intent.14 Whether a conveyance is one of fee title or an easement is a conclusion of law as to the effect of a deed."
      [View this citation from Ray v. King County (2004) with my added detailed comments.]

        This next citation takes the reader to the position in Cox' opinion where he morphs and changes the words in the Hilchkanum granting clause from a "right of way" to a "right of way strip" to a "strip of land". The substitution of these contradictory terms is Element 1 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "We next focus on the actual language of the deed. The Rays argue that the Hilchkanum deed did not convey 'land,' but rather only a 'right of way.'29 According to the Rays, the use of the latter term 'invariably' means the grantors conveyed a mere easement.30 We disagree.

      The granting provisions of the Hilchkanums' deed characterize the conveyed property first as a 'right of way one hundred (100) feet in width through' {the Hilchkanums'} lands,' and the property conveyed as a 'right of way strip.'31 The substance of this language is that the subject of the conveyance is a strip of land, not just the grant of some interest 'over' the land, as the Rays state. Language conveying a strip of land suggests a fee, not a mere easement."
      [View this citation from Ray v. King County (2004) with my added detailed comments.]

        The following citation shows that Cox substitutes the term "strip of land" for the term "right of way". His technique is to blur and confuse the meaning of the term "right-of-way" by ignoring the legal precedent which defines the meaning of "right-of-way" by where-and-how in is used in a deed. He then substitutes "strip of land" for "right of way" as if the terms have the same legal meaning. This is Element 1 of Norm Maleng's "legal theory".
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

        Then, after destroying its precedential understanding, Cox finds that the grant of a "right-of-way" is the same as the grant of a "strip of land" unless there is additional limiting language added in the deed. This requirement for additional limiting language is Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      "The Rays' argument that the use of the term 'right of way' invariably means that only an easement is conveyed is overly simplistic. In Washington, as the Brown court observed, the use of that term as a limitation or to specify the purpose of the grant generally creates only an easement.33 Conversely, where there is no language relating to the purpose of the grant or limiting the estate conveyed, and the deed conveys a strip of land, courts will construe the deed to convey fee simple title.34 In Brown, it was undisputed that the railroad had acquired its interest in the property under the deeds for railroad purposes. But significantly, the court went on to state:

        Identifying the purpose of the conveyance, however, does not resolve the issue at hand because a railroad can own rights of way in fee simple or as easements. Rather than identifying the purpose of the conveyances, we must conduct a deed-by-deed analysis to ascertain whether the parties clearly and expressly limited or qualified the interest granted, considering the express language, the form of the instrument, and the surrounding circumstances."
      [View this citation from Ray v. King County (2004) with my added detailed comments.]

        In this citation, Judge Cox makes a statement which contains both Element 1 and Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)

      "The first few factors stated in Brown require consideration of whether the deed conveyed a strip of land and whether additional language limited the use of the land or the estate conveyed.40 As we have already observed, the Hilchkanum deed conveyed a strip of land. Whether language in the deed limited the use of the land is the question. The language of the deed grants a right of way to the Railway without expressly restricting how that right of way was to be used."
      [View this citation from Ray v. King County (2004) with my added detailed comments.]

        Here is a citation, in which Judge Cox states Element 2 of Norm Maleng's "legal theory", by claiming that the Hilchkanum deed contains no limiting language. (citation with my emphasis)

      "Turning to the fourth factor, we note that nothing in the language of the Hilchkanum deed limits the grant to the 'privilege of constructing, operating, or maintaining a railroad over the land.'41 Rather, the granting clause expressly conveys 'a right of way one hundred (100) feet in width through our lands,' without any limitations of the type expressed in the fourth factor. This language is most consistent with the grant of fee title, not an easement."
      [View this citation from Ray v. King County (2004) with my added detailed comments.]

        In this last citation, Judge Cox again repeats his claim "that the grant of the strip of land was in fee" because of a "lack of any limitation in the use of the strip". These statements express both Element 1 and Element 2 of Norm Maleng's "legal theory". (citation with my emphasis)

      "...The grant of the interest in the strip was to the land itself, not an interest over the land. The lack of any limitation in the use of the strip starkly contrasts with the more limited right to cut trees only on the property adjacent to the strip. The clear distinction in the extent of rights conveyed supports the conclusion that the grant of the strip of land was in fee, not an easement similar to the more limited right to cut trees on land adjacent to the strip."
      [View the full citation from Ray v. King County (2004) with my added detailed comments.]

        Judge Cox does not "disappoint" with his opinion. He coordinated with the federal King County v. Rasmussen opinions by using all the same dishonest legal arguments. Most notable, Cox adopted both Element 1 and Element 2 of Norm Maleng's "legal theory". His adoption of these two elements kept the record perfect! All the briefs and all the opinions construing the Hilchkanum right-of-way deed adopted both of these dishonest arguments.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)



SUMMARY:

          (My statements describing wrongdoing or criminal actions in this "SUMMARY" are a First Amendment expression of my opinion.)

    In the late 1990's, the 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 the legal argument that I've named "Norm Maleng's 'legal theory'". 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). This is a ridiculous lie by the Prosecutor.

    Norm Maleng's "legal theory" was first published by the Prosecutor's office in 1997, and has been briefed in all the Rasmussen and Ray lawsuits which construed the Hilchkanum right-of-way deed to the SLS&E. Maleng's "legal theory" was dishonestly adopted by all of the Ninth Circuit and Washington State judges who construed the Hilchkanum right-of-way deed.

    This document exposes the dishonesty in Norm Maleng's "legal theory" and explains the proper application of railroad right-of-way law. Citations and links are provided for evidence of the use of Maleng's "legal theory" in King County's legal briefs and the legal opinions which adopted this dishonest argument.

          (My statements describing wrongdoing or criminal actions in this "SUMMARY" 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". (The quotations in the section directly below are hyperlinked citations which, when "clicked", will take the reader to the citation's location in its whole legal opinion. I've published these links in dark green font, and not underlined, in order to enhance the readability of this section. Citations are with my bold emphasis.)

    "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)]

    Legal precedent holds that "[i]t is a factual question to determine the intent of the parties." [Veach v. Culp (1979)]

    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, because the "...intent of the parties must primarily be gathered from a fair consideration of the deed..." [Zobrist v. Culp (1977)]. 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..." [Zobrist v. Culp (1977)].

    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." [Brown v. State of Washington (1996) Sanders Dissenting] Common law seems to be based on common sense. It's 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 [the deed's] execution, and the subsequent conduct of the parties..." [Scott v. Wallitner (1956)].

         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." [Brown v. State of Washington (1996) Sanders Dissenting]

         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 it 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 dishonest decisions which 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.