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The Rules to Construe a Railroad Right-of-Way Deed.

by John Rasmussen

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


My statements describing wrongdoing or criminal actions in this Introduction are a First Amendment expression of my opinion.

Introduction:

    This website deals with theEast Lake Sammamish (ELS) federal tax fraud scheme, a crime committed by the leadership ofKingCountyinWashingtonStateagainst its own citizens. The cover-up of the tax fraud scheme involved judges, including the judges of the Washington State Supreme Court. These judges misconstrued a railroad right-of-way deed, protecting powerful folks in King County from federal tax fraud prosecution. The rules to construe railroad right-of-way deeds in Washington State are established inWashingtoncommon law. This means the principal rules are spelled out in the legal opinions which have been written since Washington Territorial days. These rules are well understood, and what these judges did with their cover-up of the tax fraud scheme is inexcusable.

    My name is John Rasmussen. I'm a victim of the ELS federal tax fraud scheme. In order to understand the crime, I studied the dishonest claims and legal briefs made byKingCounty. This led me to Brown v. State of Washington (1996), the Washington State Supreme Court opinion that the King County Prosecutor intentionally misrepresented in order to hide his participation in the tax fraud scheme. Two paragraphs inBrownprovided a number of significant legal citations which were used in support of that decision. I read all of those opinions and then all the opinions which they, in turn, cited for precedent. These opinions establish the rules to construe railroad right-of-way deeds, and were well understood in 1996, the year of theBrownopinion. Essentially, nothing has changed those rules since then. The only tarnish is the bastard child of that body of law,Ray v. King County (2004).Rayis a criminal act from the bench which was used to cover-up the ELS federal tax fraud scheme and has little to do with the truth, legal precedent, or the law.Rayis what is wrong with our legal system and what is wrong with our Washington State Supreme Court. That said, the rules to construe railroad right-of-way deeds are established in thelegitimateWashington State common law opinions, and are explained below. But first, here are those paragraphs fromBrown v. State of Washington (1996) with the citations converted to hyperlinks so that the reader can easily access the citations in the context of their opinions.These citations and opinions provided my education in understanding how railroad right-of-way deeds are construed inWashingtonStatecommon law.

           "We have given special significance to the words 'right of way' in railroad deeds. In Roeder, for example, one of the deeds provided, in part, the grantor: 'conveys and warrants unto Bellingham and Northern Railway Company . . . for all railroad and other right of way purposes, certain tracts and parcels of land. . . .' Roeder,105 Wn.2d at 569. Recognizing a railroad can hold rights of way in fee simple or as easements, we held the deed granted an easement based on the specifically declared purpose that the grant was a right of way for railroad purposes, and there was no persuasive evidence of intent to the contrary. /6 Roeder,105 Wn.2d at 574. We reached the same result in Morsbach v. Thurston County, 152 Wash. 562, 564, 278 P. 686 (1929) (deed granted 'the right-of-way for the construction of said company's railroad in and over . . .'); Swan, 37 Wn.2d at 534 (granted property 'for the purpose of a Railroad right-of-way . . .'); Veach, 92 Wn.2d at 572 (granted '[a] right-of-way one hundred feet wide . . .'). See also Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357, 358, 38 P. 1126 (1894) ('so long as the same shall be used for the operation of a railroad' construed as granting easement); Pacific Iron Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 505, 111 P. 578 (1910) (deed providing 'to have and to hold the said premises . . . for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors' grants easement not determinable fee); King County v. Squire Inv. Co., 59 Wn. App. 888, 890, 801 P.2d 1022 (1990) ('grant and convey . . . a right-of-way. . . . To Have and to Hold . . . so long as said land is used as a right-of-way . . .' grants easement), review denied, 116 Wn.2d 1021 (1991)."

           "These cases are consistent with the majority of cases that hold the use of the term 'right of way' as a limitation or to specify the purpose of the grant generally creates only an easement. See Harris, 120 Wn.2d at 738; Machado v. Southern Pac. Transp. Co., 233 Cal. App. 3d 347, 284 Cal. Rptr. 560 (1991). Conversely, 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. Swan, 37 Wn.2d at 536; 65 Am. Jur. 2d Railroads 76 (1972); see, e.g., Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N.E.2d 548, 552 (1991)."
      [Brown v. State of Washington (1996)]

My statements describing wrongdoing or criminal actions in this Introduction are a First Amendment expression of my opinion.


The Basic Rules to Construe a Railroad Right-of-Way Deed:


         In order to construe a railroad right-of-way 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.