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    Eastside Journal

    East Lake Sammamish Trail Corridor: Rail-trail title dispute chugs toward courts: Deed expert sides with homeowners, says county doesn't own right of way

    by Tim Larson
    Journal Reporter

    Along the East Lake Sammamish Trail, it's put up or shut up time.

    After months of indignant protest from residents who say King County has no right to charge them for the use of their own land, the property owners are looking at the size of their bank accounts, the size of their opponent, and deciding whether to go to court.

    All of this as the county tinkers with a proposed ordinance that would charge residents for the presence of long-established driveways, garages and toolsheds in the 12-mile Burlington Northern rail corridor.

    Recent inquiries reveal a growing number of property owners are contacting lawyers, loading up with expensive research and taking dead aim at the county's assumption that it owns the land under the now-vanished tracks.

    "I would say several dozen" homeowners will file suit, said Vicki Beres, whose back yard is bisected by the right of way. Beres expects the first suit to be filed next month.

    If residents can prove they own the land, they'll dodge the county's special-use fees and open the door to compensation for "a taking" of their property. The county says the appraised value of the disputed land is $14.6 million.

    But it will require nerve to take on the county. Its resources are great, its position clear.

    "We, King County, have fee title, not an easement," said Elaine Kraft, spokeswoman for County Executive Ron Sims. "We own (the land)."

    When the two sides meet in court, many of the property owners will have an imposing figure in their corner -- a man whose research has stiffened their backbones and given them the confidence to tussle with county litigators.

    His name is Steve Graddon.

    On the phone, his flat, gravely, seen-and-done-it-all voice makes him sound like the Sam Spade of deed detectives.

    In person, his eyes, brimful with anticipation, speak to his love of competition in the arena of his choice -- land ownership.

    Laying an armload of thick binders on a table, all of them stuffed with modern printouts and ancient ink, Graddon smiles and says, "This is the product of our work" for one client.

    Graddon, who worked in real estate and gradually evolved into a self-made title expert, now does a lot of work for land-use attorneys.

    Recently he also was contacted by the state. In a development that must be interesting -- if not unsettling -- to the county, Washington wants to prove that railroads don't own the land they use to cross state parks.

    That's the same point Graddon is making for the homeowners: Railroad right of ways don't necessarily confer ownership.

    So what has his highly valued expertise led Graddon to conclude on behalf of the 150 residents who've hired him along the East Lake Sammamish Trail?

    "In more than 90 percent of the cases that we've done so far, it's our opinion that neither the county nor the railroad possessed the underlying ownership of the right of way," Graddon said.

    His clients realize, of course, than in the slippery business of property law, there is no guarantee a judge will look back through more than a century of paperwork and locomotive smoke -- and come to the same conclusion.

    What did railroad sell?

    The arguments in court will hinge on what, exactly, King County bought from The Land Conservancy when it purchased the 12-mile stretch of defunct railway line along the eastern shore of Lake Sammamish.

    Shortly before selling it to the county for $2.9 million in September 1998, The Land Conservancy bought the rail corridor from Burlington Northern for $1.5 million.

    While the county claims it owns the land, property owners contend much of it wasn't the railroad's to sell. They say the railroad, in most cases, purchased only an easement when it pieced together the right of way back in the 1880s.

    And that would mean many of the homeowners along the proposed recreational trail still own the land.

    Most residents acknowledge that under federal "rails-to-trails" legislation, the county does have the right to put a trail through, regardless of whom the rightful owner is.

    What they vehemently disagree with is the notion that the county has the right to charge them for long-established driveways, garages, toolsheds and gardens that gradually accumulated on or near the old tracks.

    The right of way, 200 feet wide in some places, runs through the property of some 400 homeowners along the shore. In 35 cases, the corridor runs between homes and the water, essentially cutting residents' back yards in half.

    Over decades, the portion of the expansive right of way not occupied by the narrow tracks has been used by residents as if it were their own -- which, they insist, it is.

    Kathy Schroeder, who's lived along the right-of-way since 1976, says the railroad people never complained about her ambitious landscaping projects.

    "Do what you want. It's not ours," she quotes them as saying.

    Some recent court decisions across the country encourage property owners along the proposed trail.

    In Indiana, attorney Nels Ackerson won a settlement from AT&T after the telecommunications giant installed fiber-optic cable along 70 miles of an abandoned Penn Central right of way.

    The court decided the railroad had no right to sell AT&T that pathway, since it didn't own the land underlying its longtime right of way.

    In the settlement, AT&T agreed to pay landowners $45,000 per mile for the use of their private property.

    From his offices in Washington, D.C., Ackerson said a simple principle applies to the East Lake Sammamish Trail.

    "The bottom line is that the county government ... cannot buy anymore than the railroad had the right to sell," Ackerson said.

    Railroad officials shed no light

    Burlington Northern was unable, or unwilling, to define what it had the right to sell The Land Conservancy in April 1997.

    Corporate headquarters in Fort Worth, Texas, referred all calls to Seattle spokesman Gus Melonas, who in turn referred all questions to The Land Conservancy.

    "The purchaser should know what they purchased," Melonas reasoned.

    Asked if anyone at Burlington Northern could explain precisely what the railroad sold to The Land Conservancy, Melonas said: "I doubt it; it's a done deal."

    Gene Duvernoy, executive director of The Land Conservancy, was succinct.

    "We bought the interest Burlington Northern had in that property," Duvernoy said. "We sold to the county what we bought from Burlington Northern."

    But what was that?

    Matt Cohen, an attorney affiliated with The Land Conservancy, said: "Traditionally, a railroad easement has been very close to complete ownership."

    While acknowledging that recent court rulings around the country have been mixed on that issue, Cohen said ownership issues were carefully reviewed before The Land Conservancy bought the rail corridor and then sold it to the county.

    Cohen says the county has a clear right to charge homeowners for "substantial private use" -- the garages, driveways, toolsheds and the like -- inside the right of way.

    "A lot of surprises"

    Graddon smiles at such talk and says nobody else has peered back into history the way he has.

    "There are a lot of surprises, and they're not to be found in title reports," he said. "We review matters of public record that may not be recorded. They're lying around basements and in archives."

    Graddon says King County representatives could save the taxpayers a lot of money if they would sit down and talk instead of going to court.

    But he says the county recently canceled an appointment with him.

    "I haven't seen that they've come to the table in good faith," he said.

    Sims' spokeswoman marvels at this version of events.

    "(The county) would love to meet with him and see what he has," Kraft said. "(The county) has tried several times" without success.

    Kraft added that the county would never have purchased the trail route if ownership was in question.

    "The county reviewed all of these documents prior to acquiring the land," she said, adding that the review extended back to the 1800s.

    New councilman weighs in

    Not surprisingly, new King County Councilman David Irons Jr. has been hearing from his constituents along the trail, some of whom say the county is stealing their land on behalf of a grateful and much wider constituency -- the public at large.

    As many as 4,500 people are expected to use the trail on peak days, and the project has powerful support from bicycle and trail groups.

    While he awaits explanations from other county officials, Irons says it's a concern to him that Graddon is on the other side of the argument.

    At a meeting before he took office, Irons says it amused him to hear county officials describe Graddon as a top land-ownership expert, but then say that, in the case of the trail, "he's in total error."

    Before the County Council considers an ordinance that assumes county ownership of the land, Irons wants to see some clarification.

    "Graddon is one of the foremost experts ... on railroad easements,'' he said. ``I think it's the county's duty to do its due diligence and get to the bottom of this."