Appeal from Superior Court, Kittitas County;. 882001181. Honorable Susan Hahn, Judge.
Authored by Charles W. Johnson. Concurring: James M. Dolliver, Charles Z. Smith, Philip A. Talmadge, Richard P. Guy, Barbara A. Madsen. Dissenting: Richard B. Sanders, Gerry L. Alexander, Barbara Durham
The opinion of the court was delivered by: Johnson
JOHNSON, J. -- This case involves a dispute over title to property formerly used as a railway in Adams, Kittitas and Whitman counties. The dispute is between abutting property owners claiming reversionary interests and the State, which purchased the property from the Chicago, Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee) for a rails to trail project. The property owners claim the property reverted to them when Milwaukee discontinued its rail service because Milwaukee held only right of way easements in the property. The State claims fee simple title based upon the original interest conveyed when Milwaukee acquired the property either by deed or charter from the federal government. We hold the original deeds conveyed fee simple title to Milwaukee, and therefore, the State, based on the facts the deeds are in statutory warranty form, expressly convey fee simple title, and contain no express or clear limitation or qualification otherwise. In addition, we hold the property Milwaukee obtained by charter did not revert to the property owners, based on the fact Congress authorized the sale before abandonment pursuant to 43 U.S.C.A. sec. 912. We affirm the trial court's decision in Kittitas County and reverse the trial courts' decisions in Adams and Whitman counties.
Milwaukee acquired most of the property at issue between 1906 and 1910 for the purpose of constructing a railway across eastern Washington, linking Tacoma and Seattle to Idaho and eventually the Missouri River. F. H. Wilson, A Brief Record of the Milwaukee Road (1935). Milwaukee acquired most of the property by 37 deeds and the remaining parcels by charter from the federal government under the General Railroad Right of Way Act of 1875 (the 1875 Act). *fn1 Most of the deeds at issue in this case are on preprinted forms with blank lines containing handwritten descriptions of the property conveyed. The following deed from Whitman County is typical of most of the deeds at issue in this case. The underlined portions indicate the handwritten sections of the deed.
KNOW ALL MEN BY THESE PRESENTS, That Geo. D. Brown and Annie L. Brown his Wife of Spokane County, State of Washington, for and in consideration of Ten & 00/100 Dollars, to them in hand paid, the receipt whereof is hereby acknowledged, do hereby convey and Warrant unto the CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY
COMPANY OF WASHINGTON, its successors and assigns, a strip of land, one hundred feet in width, extending over and across from the South side to the East side of the following described tract of land situated in the County of Whitman, State of Washington, and described as follows, to-wit: Southeast Quarter 1/4 Section Twenty Three (23) thence to the North side of Section Twenty Four (24) and thence to the Eastside of the Southwest Quarter (1/4) of the Southeast (1/4) of Section Thirteen (13) all being in the Township Nineteen (19) North of Range Forty (40) E. Wm. Except such land owned by the International Land Co. . . . .
HEREBY CONVEYING a strip, belt or piece of land fifty feet in width on each side of the center line of the Railway of said Company, as now located and established over and across said land. Also conveying the following extra widths for excavations, embankments, depositing waste earth, and borrowing pits, as follows: Two strips of land each fifty (50) feet in width and bordering one on either side of the strip of land first above described and extending from station # 576 to the Eastside of the Southwest Quarter . . . .
And said Grantors, for the consideration aforesaid, for themselves and for their heirs, assigns and legal representative, further grant to said Company, its successors and assigns, the right to protect any cuts which may be made on said land, by erecting on both sides thereof, and within one hundred and fifty feet from said center line, portable snow fences . . . .
HEREBY GRANTING AND CONVEYING to said Company, its successors and assigns, a fee simple title to said strip of land, together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain.
Milwaukee sold the property it acquired under these deeds and charter to the State as part of reorganization proceedings instigated under sec. 77 of the Bankruptcy Act, 11 U.S.C. sec. 1174. Milwaukee instigated the proceedings in 1977 following three years of losses totaling $100 million. In re Chicago, Milwaukee, St. Paul & P. R.R., 611 F.2d 662, 665 (7th Cir. 1979) (hereinafter cited as CMSP&P), aff'd, 624 F.2d 1105 (7th Cir. 1980).
In response to the reorganization proceedings, Congress passed the Milwaukee Railroad Restructuring Act (Restructuring Act), 45 U.S.C.A. sec.sec. 901-922. The Restructuring Act provided short-term funding and required continuation of service on all lines until a reorganization plan was approved or Congress expressly permitted abandonment. The Restructuring Act also authorized the reorganization court to sell any of Milwaukee's rail properties as of October 15, 1979. 45 U.S.C.A. sec. 903(a). By April 1980, no reorganization plan had been put forward, and the reorganization court authorized immediate abandonment but ordered:
the Trustee to fully pursue all possibilities for sale of portions of these lines for continued rail operation or other public use before he disturbs any track or facilities west of Miles City, Montana, or takes any other step which would impede such sales. Clerk's Papers (Bailey) at 494.
Unable to sell any portions of the lines for rail purposes, the trustee sought permission to sell Milwaukee's property in Adams, Kittitas and Whitman counties to the State of Washington. The reorganization court authorized the sale in December 1981 and shortly thereafter the trustee conveyed the property to the State by quitclaim deed. *fn2
Following the sale, the property owners sued the State to quiet title in the property in three separate actions. *fn3 In Kittitas County, the superior court granted the State's motion for summary judgment, dismissing the action and quieting title in the State. Conversely, in Adams and Whitman counties, the trial courts on summary judgment found full fee title reverted to most of the property owners when Milwaukee discontinued its rail service. As to the charter parcels, which are located in Adams County, the trial court stated: "I think clearly . . . what the railroad gets on charter . . . is an easement that will revert when the line is abandoned." Clerk's Papers (Harder) at 413. On this issue, the trial court granted summary judgment to the property owners because it found the property reverted to them before the sale to the State.
The State appealed Bailey and Harder, and the property owners appealed Brown. The appeals were consolidated and transferred here pursuant to RAP 4.3.
Deed Parcels: Fee or Easement?
Many courts have considered whether a railroad deed conveys fee simple title or an easement. See A.E. Korpela, Annot., Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973 (1966). The decisions are in considerable disarray and usually turn on a case-by-case examination of each deed. See Roger A. Cunningham et al., The Law of Property sec. 8.9, at 460 (2d ed. 1993).
In general, when construing a deed, the intent of the parties is of paramount importance and the court's duty to ascertain and enforce. *fn4 Swan v. O'Leary, 37 Wash. 2d 533, 535, 225 P.2d 199 (1950); Zobrist v. Culp, 95 Wash. 2d 556, 560, 627 P.2d 1308 (1981). 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. *fn5 See King County v. Hanson Inv. Co., 34 Wash. 2d 112, 208 P.2d 113 (1949) (words in deed must clearly indicate intent to make estate conditional); Wright v. Olsen, 42 Wash. 2d 702, 257 P.2d 782 (1953) (absent limiting language, State acquired fee title to land acquired for highway purposes under statutory bargain and sale deed); see also Roeder Co. v. Burlington N., Inc., 105 Wash. 2d 567, 716 P.2d 855 (1986) (deed in statutory form grants easement where additional language in the deed expressly and clearly limits or qualifies the interest granted); Veach v. Culp, 92 Wash. 2d 570, 599 P.2d 526 (1979) (same). Here, with the exception of several deeds discussed later in this opinion, all of the deeds are in statutory warranty form.
In determining whether the property owners have met their burden of showing that the original parties intended to adapt the statutory form to grant easements instead of fees simple, we have relied on the following factors: (1) whether the deed conveyed a strip 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; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal; and (7) whether the conveyance did or did not contain a habendum clause, and many other considerations suggested by the language of the particular deed. Swan, 37 Wash. 2d at 535-36. In addition to the language of the deed, we will also look at the circumstances surrounding the deed's execution and the subsequent conduct of the parties. Scott v. Wallitner, 49 Wash. 2d 161, 162, 299 P.2d 204 (1956); see also Harris v. Ski Park Farms, Inc., 120 Wash. 2d 727, 739, 844 P.2d 1006 (1993), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).
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 Wash. 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. *fn6 Roeder, 105 Wash. 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 Wash. 2d at 534 (granted property "for the purpose of a Railroad right-of-way . . ."); Veach, 92 Wash. 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 Wash. 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 Wash. 2d 1021, 811 P.2d 219 (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 Wash. 2d at 738; Machado v. Southern P. 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 Wash. 2d at 536; 65 Am. Jur. 2d Railroads sec. 76 (1972); see, e.g., Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N.E.2d 548, 552, 159 Ill. Dec. 50 (1991).
There is no question Milwaukee acquired the property for railroad purposes under these deeds. 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. Roeder, 105 Wash. 2d at 571; Harris 120 Wash. 2d at 738. 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.
Most of the deeds expressly convey fee simple title to a definite strip of land. The property owners acknowledge the deeds expressly convey fee simple title but argue the eminent domain language in the same sentence limits the conveyance. *fn7 Their argument rests on the assumption railroads could acquire easements only by eminent domain at the time the deeds were issued. At the time of the conveyances, Washington statutes authorized railroads to appropriate "legal title" to land or any interest necessary for operation of the railway. Rem. & Bal. Code sec.sec. 927, 8740 (1909). In Neitzel v. Spokane Int'l Ry., 65 Wash. 100, 117 P. 864 (1911), this court construed these statutes as authorizing a railroad to acquire only an easement. *fn8 The problem with the property owners' argument is Neitzel was decided after all but one of the conveyances at issue in this case. At that time, the nature of the interest acquired by a railroad under the condemnation statutes was not entirely clear, given this court had held fee simple title could be acquired by cities and other entities under similarly worded condemnation statutes. See, e.g., Seattle Land & Improvement Co. v. City of Seattle, 37 Wash. 274, 79 P. 780 (1905) (City acquired fee simple interest by condemnation). Under these circumstances, what meaning the original parties to the deeds attributed the eminent domain language is not apparent. We do not, however, view the eminent domain language as a limitation because the word "together" implies a grant of additional rights, not a limitation on the interest conveyed.
In addition to the eminent domain language, the property owners argue references to "rights of way" in about half of the deeds indicate the grant of 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. Morsbach, 152 Wash. at 568; Harris, 120 Wash. 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. The Eidal deed, for example, states:
Said Railway Company . . . will permit a telephone wire and an electric light wire to cross its said right-of-way. . . . Before grading is begun Right of way fences shall be built . . . . Said Railway Company is to furnish such facilities for conducting water for irrigation and other purposes under its track and across its Right-of-Way as are reasonable and practicable . . . . Clerk's Papers (Brown) at 27. 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. To point out that the Eidal deed and others describe the property as right of way simply begs the question of what interest Milwaukee acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys.
The property owners also argue the "over and across" language found in the description portion of most of the deeds indicates a grant of something less than fee simple title. While the "over and across" language may be consistent with the grant of an easement, it is equally possible the parties used "over and across" simply to locate the right of way. See, e.g., Machado, 233 Cal. App. 3d at 360; Sowers v. Illinois Central Gulf R.R., 152 Ill. App. 3d 163, 503 N.E.2d 1082, 1087, 105 Ill. Dec. 76 (1987).
The amount of consideration does not indicate that the grantors intended only easements. Most of the deeds ...