Superior Court County Pierce; Superior Court Docket No. 87-2-01090-8; Date filed in Superior Court September 7, 1988; Superior Court Judge signing E. Albert Morrison.
Petrich, J. Worswick, J., Reed, J.p.t., concur.
Ski Park Farms, Inc. appeals from the trial court's ruling on cross motions for summary judgment*fn1 that the title to land consisting of an abandoned railroad right-of-way which adjoins Ski Park property should be quieted in Mary E. Harris. The issue is whether the owners of property over which an abandoned railroad right-of-way existed, relinquished their interest in the right-of-way by a conveyance which excepted the railroad right-of-way. We hold that by the exception of the railroad right-of-way from the conveyance, the owners retained their interest in the right-of-way property and we reverse the trial court's summary judgment.
On July 2, 1864, pursuant to the 1864 Land Grant Act, Northern Pacific Railroad Company acquired ownership of a parcel of land legally described as the southeast quarter of the northeast quarter of Section 27, Township 19 North, Range 5 E., (the "property"). Approximately 10 Years later, Northern Pacific conveyed the property to Sam Wilkeson, Jr., by warranty deed, reserving and excepting the disputed right-of-way property (the "right-of way") as follows:
Reserving and excepting, however, from the above described premises, a strip of land two hundred feet wide, extending through the same on the line of the railroad of the said Northern pacific Railroad Company or on the line of any of its branches to be used for a Right of Way or for other railroad purposes, in case the line of said railroad or any of its branches has been or shall be located on or over said described pieces or parcels of land and premises (being part of the same land granted to the party of the first part by the United States of America under and by virtue of the said Act of Congress approved the 2nd day of July, 1864, and included in the aforesaid mortgage).
Subsequent conveyances of the original parcel passed the property from Hiram Sabin to John and Opal Winkelman on May 10, 1946. The warranty deed from Sabin to Winkelman contained the following language of exception relating to the right-of-way:
EXCEPT, the right of way of the Northern Pacific Railway Company . . . and except tracks appropriated by Northern Pacific Railway Company in Cause No. 74807 . . .
Burlington Northern Railroad Company acquired Northern Pacific's interest in the right-of-way as a successor-in-interest. On December 7, 1984, the Interstate Commerce Commission authorized the abandonment of the right-of-way, which was then abandoned on February 15, 1985 by Burlington Northern.
The abandonment operated to vest title in the property owners abutting the abandoned right-of-way, pursuant to 43 U.S.C. § 912. When Burlington Northern abandoned the right-of-way on February 15, 1985, Opal Winkelman, individually, and Opal Winkelman, Joan Nelson, and Mary Eytinge, as Trustees of the John C. Winkelman Family Trust (Winkelman), held fee title to the land completely surrounding and abutting the right-of-way. Thus, at the time of abandonment, title to the right-of-way vested in Winkelman.
On April 23, 1987, Winkelman sold approximately 60 acres of the Property to Ski Park Farms, Inc. for $143,500. On July 24, 1987, Harris entered into a real estate purchase and sale agreement with Winkelman for the purchase of property located within two government quarter sections part of which was bisected by a railroad right-of-way thus resulting in three small parcels bounded by either roads, a creek, section lines or the right-of-way. The total sale price was $7,000. Harris, who drafted the legal description, included the following language: "excepting the Northern Pacific railroad right-of-way easement."
The sale closed on October 29, 1987. Prior to closing of the Harris purchase, the preliminary commitment for title insurance and all other closing documents, including the deed, were reviewed both by Harris and by an attorney on her behalf. The title policy and the deed included the following exception: "excepting therefrom right of way of the Burlington Northern (Formerly Northern Pacific) Railway Company."
Then, on February 24, 1988, Winkelman, by quit claim deed, conveyed to Ski Park Farms, Inc. their fee interest in the abandoned right-of-way adjacent to Ski Park. Harris asserts an ownership interest in the right-of-way which is some distance from and not contiguous to her properties.
In reviewing a summary judgment, this court engages in the same review as the trial court. Del Guzzi Construction Co., Inc. v. Global Northwest Ltd. Inc., 105 Wash. 2d 878, 719 P.2d 120 (1986). Summary judgment shall be granted if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. CR 56(c); Hontz v. State, 105 Wash. 2d 302, 714 P.2d 1176 (1986).
The issue here is construction of the Winkelman to Harris deed. The construction of a deed generally is a matter of law for the court. Donald v. Vancouver, 43 Wash. App. 880, 719 P.2d 966 (1986). In construing a deed, the intent of the parties controls; particular attention is paid to the intent of the grantor when giving meaning to the entire language of the deed. Carr v. Burlington Northern, Inc., 23 Wash. App. 386, 597 P.2d 409 (1979). The intent must be ascertained from reading the deed as a whole. McKillop v. Crown Zellerbach, Inc., 46 Wash. App. 870, 733 P.2d 559, review denied, 108 Wash. 2d 1015 (1987). The words are to be given their ordinary meaning. 46 Wash. App. at 873. If the terms of the contract are plain and unambiguous, the meaning should be ...