OPINION
At issuе are rights of way along the eastern shore of Lake Sammamish in King County, Washington. The plaintiffs in these consolidated lawsuits allege that when the United States Department of Transportation, Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU), the federal government denied plaintiffs a rever-sionary interest in the right of way located on their properties, formerly occupied by a railroad, which constituted a taking under the Fifth Amendment to the United States Constitution. Previously, this court issued an opinion in the consolidated cases, denying defendant’s motion for summary judgment regarding the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat. 482, 43 U.S.C. §§ 934 et seq. (repealed 1976), and the effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64 Fed.
FINDINGS OF FACT
The railroad line in question was originally constructed by the Seattle, Lake Shore & Eastern Railway Company (SLS & E) from May 1887 through March 1888. During May and June 1887, the SLS & E acquired land needed to construct the railroad along the eastern shore of Lake Sammamish by right of way deeds from plaintiffs’ predecessors in title: grantors Louis
In pertinent part, the SLS & E Deeds are in the following format:
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:
[specific description of lot and section]
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said Railway Company, which location is described as follows, to wit:
[description of the metes and bounds]
And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.
To Have and to Hold said premises with the appurtenances unto the said party of the second part, and to its successors and assigns forever.
In Witness Whereof the parties of the first part have hereunto set their hands and seals this [_] day of [Month], AD. 1887.
The second type of deed in this opinion, the June 3, 1904 Reeves Quit Claim Deed, at issue in Manning, was conveyed to the Northern Pacific and states, in pertinent part:
This Indenture madе this third day of June in the year of our Lord one Thousand nine hundred and four, Between J.D. Reeves and Elizabeth Jane Reeves, his wife, the parties of the first part and the Northern Pacific Railway Company, a corporation, the party of the second part, Witnesseth: That the said parties of the first part for and in consideration of the sum of One hundred and Fifty dollars of the United States to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged do by these presents, remise, release, and forever quit claim unto the said party of the second part and to its assigns all right, title and interest and estate of said first parties in and to all that certain lot, piece or parcel of land, situate lying and being in the County of King, State of Washington, and particularly bounded and described as follows, to wit:
The interest of said grantors in and to a tract of Land lying within lines drawn parallel with with [sic]4 the center of the main Line track and fifty feet from said center of the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway, through the Townsite of Inglewood, King County, State of Washington, and running from Ash Street to Willow Streets and through the following Blocks in said Townsite; [list of blocks] according to the plat of said Town of Inglewood as recorded in Volume three, of Plat Books, page 169 records of King County, Washington; the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the Grantor J.D. Reeves by grant of date, November 13, 1903, from King County, Washington, said lots being as follows, [list of lots and blocks]
Together will [sic] all and singular the tenements, hereditaments and appurtenances thereunto, belonging, or in anywise appertaining, and the reversions, remainder and remainers [sic], rents, issues and profits thereof.
To have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever. In witness whereof, The said parties of the first part have hereunto set hands and seals the day and year first above written.
Circumstances Surrounding Execution of the Deeds and Subsequent Conduct of the Parties.
The Schroeder Plaintiffs, No. 04-1456L (the Tahalthkut Deed)
The plaintiffs in Schroeder
After the conveyance to the SLS & E, Louis Tahalthkut entered into an agreement with Daniel J. Reichert on June 22, 1889 to sell and convey to him all timber for logging that was on Louis Tahalthkut’s property. The agreement stated, in part, “all and singular the timber suitable for logging and piling purposes now standing growing and being on those certain pieces or parcels of land situate lying and being in King County, Washington Territory and particularly described as follows ...,” and Daniel J. Reic-hert agreed to take and buy the same. After
The Chamberlin
The plaintiffs in the Chamberlin
On December 15, 1890, Bill and his then-wife Annie Hilchkanum
The Klein Plaintiffs, No. 04-1458L (the Davis Deed)
The plaintiffs in Klein
The Peterson Plaintiffs, No. 04-1459L, and the Lane Plaintiff, No. 04-1468L (the Sbed-zuse Deed)
The plaintiffs in Peterson
On June 22, 1889, Bill Sbedzuse entered into an agreement with Daniel J. Reichert, similar to the agreement Louis Tahalthkut had entered into with Daniel Reichert, selling to him all timber rights suitable for logging on his property. On August 5, 1905, Bill Sbedzuse conveyed his undivided two thirds interest in Lot 3 and the N.E. 54 of Section 32 to G.R. Fisher by Warranty Deed. That deed is silent with respect to the railroad right of way.
Plaintiff Phyllis Lane, with Robert Lane, who is not a listed plaintiff, acquired a portion of Lot 3, in Section 32, Township 25 North, Range 6 East, W.M., by Statutory Warranty Deed dated June 25, 1973. The deed for two of the co-plaintiffs in Peterson, J. Herb and Judith D. Gilbo, also is in the record. According to the deed, the Gilbos acquired their interest in a parcel within Lot 3 of Section 32 by Statutory Warranty Deed dated November 4, 1982. In addition, Peterson co-plaintiff George W. Raab’s deed is included in the record. The Statutory Warranty Deed indicated that the property was conveyed to George and Mildred M. Raab by Hilda and Francis Sprague on February 27, 1947.
The Spencer Plaintiffs, No. 04-1463L (the Yonderpump Deed)
The plaintiffs in Spencer
Alice Zacuse, Jim Yonderpump’s widow, and her husband at the time, Jim Zacuse, subsequently conveyed a portion of Lot 2 to George Clark and Tolle Anderson by Quit Claim Deed dated October 28, 1911. The deed described the property as: “North twenty acres of Lot Two (2) Section Thirty two (32) Township Twenty five (25) North of Range six (6) E.W.M.” The deed did not mention the railroad right of way. On January 27, 1919, Alice Zacuse conveyed by Quit Claim Deed the remaining portion of Lot 2 to W. Baron Cook, again without mentioning the right of way.
The Nelson Plaintiffs, No. 04-1465L and the Collins Plaintiffs, No. 04-1472L (the Palmberg Deed)
The plaintiffs in Nelson
Beginning at a point on the line between lots 2 and 3 in section 20 Tp. 25 N R. 6 E. W.M. 569 64/100 feet south of the NW corner of said lot 3 thence west in said lot 2 two hundred and twenty one and 58/100 (221 58/100) feet thence southwesterly along a line drawn at right angels [sic] to the center line of the Seattle Lake Shore and Eastern Railway Company fifteen and 3/10 feet to the easterly margin of the right of way of said Railway Company thence southeasterly along said right of way two hundred forty and 4/10 (240 4/10) feet thence east ... Together with all riparian rights as reserved from the Seattle Lake Shore and Eastern Railway Company fronting upon appurtenant to the land hereinbefore described.
Robert and Mary Beth Nelson
The Manning Plaintiffs, No. 04-1466L (the Reeves Deed)
The plaintiffs in Manning
Plaintiff Joy Manning acquired her interest in Lots 20, 21 and 22 in Block 3, Inglewood and Lot 1 in Block 4, Inglewood, by Statutory Warranty Deed dated November 19, 1984, “[ejxcept the southerly 11 feet of said Lot 20, and Except any portion thereof lying within the Northern Pacific Railroad Company Right of Way,” applying to the deeds of Lots 20, 21,22 and Lot 1.
Prior Litigation
In 1997, Burlington Northern and Santa Fe Railway Company (Burlington Northern), a successor in interest to the SLS & E’s and Northern Pacific’s rights of way, concluded that continued operation of the pertinent line was not economically viable. See Redmond-Issaquah R.R. Pres. Ass’n v. Surface Transp. Bd.,
In 2000, Gerald L. and Kathryn B. Ray filed an action against King County, Washington to quiet title to enforce their fee interest ownership in the right of way. See Ray v. King Cnty., No. 00-2-14946-8SEA, King Cnty.Super.Ct. (2001), aff'd,
The Rays sought direct review of the King County Superior Court’s decision in the State of Washington Supreme Court. As briefing neared completion, however, the State of Washington Supreme Court transferred the matter to the State of Washington Court of Appeals, Division 1. The State of Washington Court of Appeals affirmed the King County Superior Court’s decision to quiet title in King County, holding that the Hilch-kanum deed conveyed a fee interest in the right of way and not an easement. See Ray v. King Cnty.,
In addition, plaintiffs Clifford F. and Kathryn L. Schroeder, Henry D. and Judy D. Klein, Frederic and Linda Vicik, and George W. Raab, also brought state court actions to quiet title regarding their respective properties. After the decision in Ray v. King County, and after an adverse decision from the United States Court of Appeals for the Ninth Circuit in King County v. Rasmussen,
In January 2005, the plaintiffs filed a motion in this court asking for certification to the State of Washington Supreme Court on questions of state law related to their cases.
1. When the granting clause of a deed expressly conveys a “right-of-way” to a railroad, does Washington state law hold that the property interest conveyed to the railroad is an easement as distinguishable from a fee simple?
2. Under Washington state law, did the above-quoted language of the 1887 deeds convey fee simple absolute interest in the Seattle Railway Company, or, instead, did the deeds convey an easement?
Schroeder v. United States,
Plaintiffs’ certification request, as forwarded by this court to the State of Washington Supreme Court, indicated that this court, the parties and future litigants could benefit from additional guidance from the State of Washington Supreme Court. This court explained:
Although the Brown court set out seven possible factors for consideration by other courts, whether the plaintiffs’ deeds convey an easement or a fee is not easily determined without prioritization within the factors, and guidance regarding the seventh factor, which includes “many other considerations suggested by the language of the particular deed.” Even the lower Washington state courts seem to arrive at differing resolutions. At a minimum, a declaration by the Supreme Court of Washington on this matter would be welcome in order to best resolve the issue of whether the multiple plaintiffs in the cases before this court can continue with their Fifth Amendment taking claims.
Id. at 519 (quoting Brown v. State,
The State of Washington Supreme Court, however, declined the request for certification with the following short statement:
The court is of the view that, in light of existing precedent such as Brown v. State,130 Wash.2d 430 ,924 P.2d 908 (1996) and Ray v. King County,120 Wash.App. 564 ,86 P.3d 183 , review denied,152 Wash.2d 1027 ,101 P.3d 421 (2004), the questions posed by the federal court are not “question[s] of state law ... which [have] not been clearly determined.”
Order at 1-2 (Wash. Oct. 7, 2005) (quoting Washington Rules of Appellate Procedure (RAP) 16.16(a) (2006)) (omissions in original). Plaintiffs sought reconsideration of the order issued by the State of Washington Supreme Court denying review. The State of Washington Supreme Court, however, indicated that, because it had not granted review, its order was not subject to reconsideration, and the State of Washington Supreme Court closed the file without further action.
DISCUSSION
Easement Versus Fee Interest
The issue before the court is whether in these federal taking actions, the SLS & E Deeds and the 1904 Reeves Quit Claim Deed, described above, conveyed easements or fee simple interests to the Seattle, Lake Shore & Eastern Railway Company and the Northern Pacific Railway Company.
The United States Court of Appeals for the Ninth Circuit, in King County v. Rasmussen, considered the Hilchkanum deed on review of a summary judgment decision by the United States District Court for the Western District of Washington, which determined that the Hilchkanum deed conveyed a fee simple interest to the SLS & E. The Ninth Circuit affirmed the District Court for the Western District of Washington’s decision granting summary judgment in favor of King County, King Cnty. v. Rasmussen,
State of Washington law controls to determine the interest conveyed by the deeds at issue. “The nature of the interest conveyed is determined according to the law of the state where the conveyance occurred.” Chevy Chase Land Co. of Montgomery Cnty. v. United States,
History of Railroad Rights of Way in the State of Washington Supreme Court
The State of Washington Supreme Court has observed that, “many courts have considered whether a railroad deed conveys fee simple title or an easement,” and indicated that “[t]he decisions are in considerable disarray and usually turn on a ease-by-ease examination of each deed.” Brown v. State,
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 v. Ski Park Farms, Inc.,120 Wash.2d 727 , 738,844 P.2d 1006 , 1011-12, (Wash.1993), cert. denied,510 U.S. 1047 [114 S.Ct. 697 , 126*768 L.Ed.2d 664] (1994). 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. Sqwan v. O’Leary,37 Wash.2d at 536 ,225 P.2d at 200 .
Brown v. State,
A sampling of significant cases in the State of Washington interpreting railroad conveyances to determine if a fee or an easement interest was intended includes an early review of the issue by the State of Washington Supreme Court in 1893 in Biles v. Tacoma,
Reserving and excepting therefrom, however, a strip of land extending through the same (or so much of such strip as may be within said described premises) of the width for [sic] hundred feet, — that is, two hundred feet on each side of the center line of the Northern Pacific Railroad, or any of its branches, — to be used for a right of way or other railroad purposes, in case the line of said railroad or any of its branches has been or shall be located on or over or within less than two hundred feet of said described premises.
Id. at 212. In examining the strip of land “to be used for a right of way or other railroad purposes,” the State of Washington Supreme Court considered the “technical legal distinction” between the words “reserve” and “except” and concluded that because both terms were used in the deed, it was necessary to examine “the nature of the right or thing excepted or reserved,” id, and “the intention of the parties, as evidenced by the words of the deed, the object they had in view, and the circumstances under which the deed was executed.” Id. The court determined that because at the time the deed was executed, the purchaser of the land had desired to purchase the whole of the land, no road had been built and the grantor had not identified or described a particular portion of the land conveyed, the intention of the deed was not to except a fee interest. The Biles court concluded that, “the clause referred to simply reserved a right of way over — an easement in — the land conveyed, and that the ownership of the whole tract passed to the respondent by virtue of the deed.” Id. at 213.
The following year, 1894, the State of Washington Supreme Court again reviewed a railroad deed to determine if it conveyed an easement or a fee interest. See Reichenbach v. Wash. Short Line Ry. Co.,
Subsequently, in 1910, the State of Washington Supreme Court in Pacific Iron Works v. Bryant Lumber & Shingle Mill Co.,
Subsequently, in 1929, the State of Washington Supreme Court in Morsbach v. Thurston County, 278 P. 686, interpreted a railroad deed executed on November 12, 1872. The deed stated, in part:
Know all men by these presents that Edward Kratz, of Thurston county, Washington Territory, in consideration of two hundred dollars ($200.00) paid by the Northern Pacific Railroad Company and other good and valuable considerations, the receipt whereof is hereby acknowledged, do by these presents give, grant, bargain, sell and convey unto said Northern Pacific Company, or its assigns, the following described premises, viz.: The right of way for the construction of said company’s railroad in and over the south half of the northeast quarter of section twenty-two and the west half of the northwest quarter of section twenty-three of township fifteen north of range two west, situate in Thurston county, Washington Territory....
To have and to hold the general premises with the privileges and appurtenances thereto belonging to the Northern Pacific Railroad Company, its successors and assigns, to their use and behoof forever....
Id. at 687.
The Morsbach court noted that the defendant had conceded: “it is elementary that, in cases where the granting clause of a deed declares the purpose of a grant to be a right of way for a railroad, the deed passes an easement only, not a fee, though it be in usual form of a full warranty deed.” Id. at 687 (citing 1 Thompson on Real Prop. § 421). The language in the granting clause, a “right of way for the construction of said company’s railroad,” without any specific width or length identified, was significant to the Morsbach court as evidence of only an easement having been conveyed. See Morsbach v. Thurston Cnty.,
Had the instrument ended with the grant of the right of way across the legal subdivisions described and the adoption thereof by the grantee, as much [sic] be presumed, and the occupation of the granted premises, there could be no doubt that it was intended to convey simply the right of way and easement in the land itself. The doubt arises when we consider the second clause of the deed, comprising the habendum and the covenants.
Id. at 688.
Although the habendum clause used the phrase “forever,” in quoting from Thompson on Real Property, the Morsbach court stated “ ‘[w]here the intention to convey a fee does not apрear, 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.’ ” Morsbach v. Thurston Cnty.,
In 1950, in Swan v. O’Leary, the State of Washington Supreme Court examined a railroad right of way in a quit claim deed, executed on April 17, 1909, and determined that only an easement was conveyed. See Swan v. O’Leary,
This indenture witnesseth, That Minnie L. Swan, unmarried, party of the first part, for and in consideration of the sum of Six Hundred & Twenty-five Dollars in lawful money of the United States of America to her in hand paid by M.H. Draham the party of the second part, the receipt whereof is hereby acknowledged, has rem-ised, released and forever quitclaimed, and by these presents do sell, convey, remise, release and forever quitclaim unto said party of the second part, and to his heirs and assigns, the following described premises, situate, lying and being in the County of Thurston, State of Washington,: for the purpose of a Railroad right-of-way to-wit:a strip of land 50 feet in width_ Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.
To Have and to Hold All and singular the said premises together with the appurtenances, unto said party of the second part, and to his heirs and assigns forever.
In witness whereof, The said party of the first part has hereunto set her hand and seal the 17th day of April A.D. 1909.
Id. at 199 (emphasis in original).
While examining whether the interest conveyed a fee simple or an easement interest, the Swan court noted that:
The parties have cited and analyzed many cases, and have referred us to the annotation in132 A.L.R. 142 . The authorities are in hopeless conflict. They cannot be reconciled, because their authors approach the subject from different standpoints and give different weight and significance to the various factors entering into the various instruments of conveyance under consideration. About the only common ground that can be found is that the intention of the parties to the conveyance is of paramount importance and must ultimately prevail in a given case.
Swan v. O’Leary,
In attempting to arrive at the intention of the parties to similar conveyances, the courts have considered such factors as whether the consideration expressed was substantial or nominal; 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; whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; whether the dеed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; whether the conveyance did or did not contain a habendum clause, and many other considerations suggested by the language of the particular deed.
Id.
In an attempt to synthesize the conflicting authorities and the various factors earlier courts had considered to determine if a fee or an easement interest was conveyed, the Swan court indicated:
The courts have found no difficulty with those conveyances where a grantor, by appropriate words of conveyance, unquali-*771 fiedly 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. The difficulty arises when the instrument of conveyance is ambiguous, is in some way qualified, or appears to be a mixture of the two ideas.
Id. The Swan court identified the deed before the court as an example of such a mixture, because the deed conveyed a strip of land fifty feet in width, but for the purpose of a railroad right of way. Id. at 201. After a review of previous State of Washington Supreme Court decisions, most notably Morsbach v. Thurston County,
The court in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, discussed more fully below, highlighted the decision in Swan v. O’Leary, and noted that, “[i]n response to these conflicting authorities, in 1950 the Swan court attempted to lay down a bright-line rule governing railroad rights of way by interpreting the then seminal case Morsbach v. Thurston County ... ‘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.’ ” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
In 1979, the State of Washington Supreme Court determined the nature of a 1901 quit claim deed in Veach v. Culp,
(T)he [sic] said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars, ... do by these presents remise, release and forever quit claim unto said party of the second part, and to its assigns, all that certain lot, piece, or parcel of land situate in Whatcom County ... to-wit:
A right-of-way one hundred feet wide, being fifty feet on each side of the center line of the B.B. & Eastern R.R. as now located through that portion of lot 6, Section 22, Township 37 North Range 4 East, lying east of Fir St. Blue Canyon and also Lot Seven (7) same Section excepting all rights for road purposes that may have heretofore been conveyed to Whatcom County and particularly reserving all littoral and riparian rights to the said Fred and Mattie A. Zobrist (the grantors).
Together with the tenements, heredita-ments and appurtenances thereunto belonging or in anywise appurtaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.
To have and to hold, all and singular, said premises, together with the appurtenances unto the said party of the second part, and to its assigns forever.
Id. at 527 (omissions in original). The Veach court indicated that, although the defendant had argued that the habendum clause and the granting clause demonstrate intent to create a fee, because the language in both clauses is absolute, the court should examine the deed as a whole. See id. The Veach court found that similar descriptions of rights of way have “been found to create an easement, not a fee simple estate.” Id. In determining that the deed conveyed an easement, the court quoted the holding in Swan v. O’Leary, 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,
In 1986, the State of Washington Supreme Court interpreted a 1914 statutory warranty deed from the Bellingham Bay Improvement Company to the Bellingham and Northern Railway Company, which conveyed a fifty-foot wide strip of land, to be an easement and not a fee interest. See Roeder Co. v. Burlington N., Inc.,
In 1993, in Harris v. Ski Park Farms, Inc.,
In 1996, in Brown v. State,
The Brown court, noting that most of the deeds it was reviewing were in the same format, quoted from one of the deeds, the Whitman County deed, as an example. The exemplary, statutory warranty form deed stated, in part:
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 _ [sic] 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 ....
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....
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.
Id. at 910-11 (omissions and capitalization in original).
Interpreting the deed language, the Brown court stated, “[i]n this ease, 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.” Id. at 912 (footnote and citations omitted); see also Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The Brown decision is often cited for establishing factors to use when analyzing and differentiating between fee or easement interests in railroad source deeds. The Brown court stated: “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_” Id. From this language, however, it is evident that the Brown court was specific that it was creating criteria for how to interpret adaptations from statutory warranty form deeds. The Brown criteria were stated as:
(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; (S) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed grants ed 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,22 and many other considerations suggestéd by the language of the particular deed.
Id. (citing Swan v. O’Leary,
The court in Brown stated it was relying on the earlier State of Washington Supreme Court decision of Swan v. O’Leary, which listed a number of factors courts in various jurisdictions, including the State of Washington, have used to determine the intentions of the parties when executing deeds. Id. at 912, 915. As noted above, however, the Swan court listed determinative factors after noting that, “[t]he authorities are in hopeless conflict. They cannot be reconciled, because their authors approach the subject from different standpoints and give different weight and significance to the various factors entering into the various instruments of conveyance under consideration.” Swan v. O’Leary,
The property owners in Brown had argued that references to a right of way, included in a number of deeds, indicated grants of easements. While acknowledging that the State of Washington Supreme Court has “given special significance to the words ‘right of way' in railroad deeds,” id. at 912, the court in Brown noted that the Washington courts had found easements when the phrase right of way was used as a limitation or to describe the purpose of the conveyance, but conversely, in the absence of language relating to the purpose of grant or limiting the conveyance and the deed conveys a strip of land, a fee simple conveyance should be determined. Id. The court in Brown indicated that, “[t]he words ‘right of wаy' 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.” Id. at 914. According to the Brown court, the rights of way in the deeds before the court only described strips of land being conveyed to a railroad, id., and “[ujnlike 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 proportion of the deeds describing Milwaukee’s obligations with respect to the property.” Brown v. State,
The Brown court also considered the amount of compensation paid in weighing whether an easement or fee interest was conveyed.
The Brown court also noted that, “most of the deeds are identical to the Whitman County deed set forth earlier in this opinion except as to the handwritten legal descriptions. There are, however, several deeds that differ from the Whitman County deed. We hold that these deeds convey fee simple title because, unlike Swan, Veach, and Roeder, they convey definite strips of land without any limitation or qualification.” Brown v. State,
After the Brown decision, the State of Washington Court of Appeals, Division 3, in Hanson Industries, Inc. v. County of Spokane,
Washington decisions have consistently interpreted deeds granting a strip of land for a railroad right-of-way as conveying an easement, even in the face of traditional factors signifying a fee. Thus, if the words “right-of-way” appear in the granting clause, the interest conveyed is an easement, even if the deed is in the statutory warranty form, uses the words “fee simple,” contains covenants of warranty, a ha-bendum clause conveying the land “forever,” and other indicia of a fee simple.
Id. at 914 (citations and footnote omitted). The Hanson court noted that, “[t]he deeds dissected by the Brown court were in the statutory warranty form, contained no reference to a ‘right-of-way,’ no recitation of the purpose of the grant, and expressly conveyed a ‘fee simple’ in the granting language. The deeds were, therefore, subject to the strong presumption that the grantors’ intent was to convey a fee interest. The burden was, then, on the party asserting an easement to overcome this presumption.” Hanson Indus., Inc. v. Cnty. of Spokane,
More recently, in 2006, the State of Washington Supreme Court in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association,
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, That we, the said E.A. Kershaw and Ora A. Kershaw ... for and in consideration of the sum of [$1,000.00] ... and other good and valuable considerations including the covenants of the [Railway] ... do hereby give, grant, sell, confirm and convey to the said ... NORTH YAKIMA & VALLEY RAILWAY COMPANY, a Corporation, its successors or assigns, a strip of land seventy five feet wide, in, along, over and through the hereinafter described land in Yakima County, Washington ... to be used by [the Railway] as a right of way for a railway forever, together with the perpetual right to construct, maintain and operate a railway or railways over and across the same.
TO HAVE AND TO HOLD The said right of way, strip of land, easements, privileges and appurtenances to it, the said NORTH YAKIMA & VALLEY RAILWAY COMPANY, its successors or assigns, forever, Provided, it is understood and agreed that*777 second party its successors or assigns, shall, at its or their own proper cost and expense, provide and maintain over and across said railroad and right of way four suitable and convenient crossings of sufficient width to permit the use thereof of wagons, hay rakes and other ordinary farm machinery, in passing to and from the portions of said premises separated by said railroad and right-of-way, with proper approaches and one of which shall be an open crossing, provided with proper cattle guards, and the others may be provided with convenient and suitable gates, which shall be provided and maintained by second party, its successors or assigns.... [A]lso, it is understood and agreed, that second party, its successors or assigns shall erect and maintain a good and lawful fence on each side of its right of way over and across said described premises ... [and] provide suitable means and ways for conducting over and across its said right of way and under its said railroad, any and all water necessary for the proper irrigation of said premises....
It is understood and agreed that the aforesaid covenants and agreements on the part of second party shall run with said granted right of way and be binding upon said company, and its successors and assigns, so long as a railway may be maintained by it or them, over and across said premises.
Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The Kershaw court begin its analysis by examining many of the eases discussed above, including Morsbach v. Thurston County,
In turning to the deed before it, the State of Washington Supreme Court in Kershaw determined that, “[l]ike the cases finding an easement, and unlike the deeds in Brown, the word [sic] ‘right of way’ is used to establish the purpose of the grant and thus presumptively conveys an easement interest.” Id. The Kershaw court indicated:
Here the deed appears to contain elements characteristic of both a fee and easement conveyance. In short, the deed is in statutory warranty form, which carries a presumption of conveying fee, but contains the words “right of way” in both the granting clause and the habendum clause, which we have stated presumptively evinces the parties’ intent to convey only an easement. We thus consider whether additional analysis of the deed language using the Brown factors, set forth above, sheds any light on the parties’ intent.
Id.
The Kershaw court then turned to an application of the Brown factors to the source
Considering the fifth Brown factor, whether the deed contained a reverter clause, the Kershaw court noted that, “the presence of a reverter clause is strong evidence an easement was intended.” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
Applying the seventh Brown factor, whether there was a habendum clause in the deed, the Kershaw court observed that the haben-dum clause stated, in part: “‘TO HAVE AND TO HOLD the said right of way, strip of land, easements, privileges and appurtenances to it, the said North Yakima & Valley Railway Company, its successors or assigns, forever.’ ” Id. The court in Kershaw indicated that the use of both the phrases “right of way” and “strip of land” could be construed as creating ambiguity, but concluded that the habendum clause under review favored conveyance of a fee interest. Id. The Kershaw court then looked to other language in the deed indicative of the parties’ intent, as suggested by the Brown court, in the two additional evaluation factors which followed the first seven numbered factors. The Ker-shaw court noted that language indicating the railroad had acquired the strip of land in perpetuity was inconclusive, because the court was uncertain if the language referred to a fee interest or to an easement. Id. The court concluded, however, that the language in the granting clause, “that the perpetual right to construct, maintain and operate a railway or railways over and across the same,” was “most indicative of an easement,” because if the intention was a fee interest “there would have been no need to also grant any rights associated with the land.” Id.
The Kershaw court acknowledged that, according to Brown v. State, the “use of a statutory warranty deed creates a presumption” that fee simple title is conveyed, but determined that State of Washington Supreme Court precedent, “which Brown does not overrule, and in fact incorporates, establishes] that whether by quitclaim or warranty deed, language establishing that a conveyance is for right of way or [sic] railroad purposes presumptively conveys an easement and thus provides the ‘additional language’ which ‘expressly limits or qualifies the interest conveyed.’ ” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
As in Brown, there was a dissent filed in Kershaw. In her dissent, Justice Madsen stated: “Although the majority claims that it merely ‘builds’ upon Justice Charles Johnson’s comprehensive approach in Brown v. State,
the majority then proposes the existence of two opposing presumptions, i.e., the presumption in Brown that a fee simple has been conveyed arising from use of a statutory warranty deed form and language conveying a strip of land, and a second presumption not included in Brown, i.e., that an easement has been conveyed arising from use of the words “right of way” in the granting and habendum clauses. Both presumptions cannot be applied in the same case in any coherent way, because if there is no other evidence of intent contrary to the presumption, the presumption dictates the result. This must be so because, in a case like this one, the first presumption would lead to the conclusion that a fee simple interest was conveyed, while the second presumption would lead to the conclusion that an easement interest was conveyed.
The majority thus embraces conflicting presumptions and so returns the law to the state of disarray that preceded Brown.
Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
Briefly summarizing, the State of Washington Supreme Court has stated, “[t]he conveyance of a right of way to a railroad may be in fee simple or only an easement.” Roeder Co. v. Burlington N., Inc.,
Under Washington law, “[t]he interpretation of a right of way deed is a mixed question of fact and law. Determining the parties’ intent is a factual question and the courts must look to the entire document in order to ascertain such intent.” Roeder Co. v. Burlington N., Inc.,
Deeds to the Seattle, Lake Shore & Eastern Railway Company
Plaintiffs argue regarding the SLS & E Deeds that, “the language of the granting clause specifically, and also the purpose of [sic] deed as a whole, show the term ‘right of way was used as a limitation on the interest conveyed.” Plaintiffs, therefore, assert that the SLS & E Deeds conveyed only an easement interest to the SLS & E. The defendant responds that, “[a]pplying the factors in Brown, and considering the circumstances surrounding the execution of the deed and the subsequent acts of the parties ... can lead to but one conclusion, specifically, that ‘these factors indicate that Hilchkanum [and the other grantors] intended to convey a fee simple interest in the strip of land described.’” (quoting King Cnty. v. Rasmussen,
Aside from the inclusion of the names of the grantors, the dates the deeds were executed, the specific descriptions of the lots and sections, the specific descriptions of the metes and bounds of the individual properties, and minor grammatical and capitalization differences, the deeds in Schroeder, Chamberlin, Klein, Peterson, Lane, and Spencer all follow the same format, with no other differences between the deeds. The SLS & E Deeds state:
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:
[specific description of lot and section]25
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said Railway Company, which location is described as follows, to wit:
[description of the metes and bounds]26
*781 And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.
To Have and to Hold said premises with thе appurtenances unto the said party of the second part, and to its successors and assigns forever.
In Witness Whereof the parties of the first part have hereunto set their hands and seals this [_] day of [Month], A.D. 1887.
The source deed at issue in Nelson and Collins, the Palmberg deed, also follows the above format, but contains the following additional sentence after the habendum clause: “All riparian and water front rights on Lake Samamish [sic] are hereby expressly reserved.” The Palmberg deed uses singular forms, such as “me,” “I,” “my,” “party,” and “his,” as the deed was conveyed only by Alfred Palmberg, whereas the other SLS & E Source Deeds were conveyed by a husband and a wife, and use plural forms, such as “us,” “we,” “our,” “parties” and “their.” The Palmberg deed states in part:
In consideration of the benefits and advantages to accrue to me from the location construction and operation of the Seattle Lake Shore and Eastern Railway in the County of King in Washington Territory I 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 my lands in said County, described as follows, to wit:
[specific description of lot and section]
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across my said lands by the Engineer of said Railway Company, which location is described as follows to wit:
[description of the metes and bounds]
And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.
To have and to hold said premises with the appurtenances unto the said party of the second part, and to its successors and assigns forever. All riparian and water front rights on Lake Samamish [sic] are hereby expressly reserved.
In Witness whereof the party of the first part has hereunto set his hands and seal this 13th day of June, A.D. 1887.
The plaintiffs state that, “[i]t is undisputed that identical wording is used in the [SLS & E Deeds] deeds at issue. A side-by-side comparison of the deeds shows each deed contains the exact same granting clause. Each deed follows the same format and includes identical provisions.” The defendant also indicates that, “the 1887 [SLS & E] deeds at issue all contain essentially the same language.” When granting plaintiffs’ motion to certify questions to the State of Washington Supreme Court, this court also stated, “[t]he plaintiffs allege, and this court’s independent review affirms, that the relevant portions of the right-of-way deeds for each of the plaintiffs contain identical language.” Schroeder v. United States,
To determine if the SLS & E Deeds conveyed easements or fee interests to the railroad, the court must first determine if any presumptions exist in favor of a fee interest, see Brown v. State,
“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)”
Brown v. State,
A State of Washington Court of Appeals and two federal courts reviewing the Hilchkanum deed, one of the SLS & E Deeds, agreed that the Hilchkanum deed was not in the form of a statutory warranty deed and that no presumption in favor of a fee applied. In Ray v. King County, the State of Washington Court of Appeals determined:
Comparison of the language of the deed, which states in relevant part that the Hil-chkanum “hereby donate, grant and convey” their property, with the statute then in effect shows that their deed is not substantially in the form of either a statutory warranty deed or a bargain and sale deed. Consequently, no presumption arises that the deed conveyed fee simple title.
Ray v. King Cnty.,
Subsequent to the Brown v. State decision, the State of Washington Supreme Court, in Kershaw, enunciated that, under Washington state law precedent in Morsbach v. Thurston County,
As noted by the court in Brown: “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.” Brown v. State,
The defendant argues that the use of the term “strip” indicates conveyance of a fee interest, citing to the Washington State Court of Appeals decision in Ray v. King County, which determined, “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.” Ray v. King Cnty.,
Moreover, as described above, in Veach v. Culp,
(T)he [sic] said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars, ... do by these presents remise, release and forever quit claim unto said party of the second party, and to its assigns, all that certain lot, piece, or parcel of land situate in Whatcom County ... to wit: A right-of-way one hundred feet wide, being fifty feet on each side of the center line of the B.B. & Eastern R.R.
Id. at 527 (omissions in original). The Veach court noted that the parties “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.” Id. In Swan v. O’Leary, the grantor conveyed a right of way to the railroad “for the purpose of a Railroad right-of-way to-wit:-a strip of land 50 feet in width ....” Swan v. O’Leary,
After review of the SLS & E Deeds and the precedent in the State of Washington Supreme Court, the court concludes that a presumption in favor of an easement is created by the language of the SLS & E Deeds. Therefore, in accordance with the guidance in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association,
In Brown v. State, although established to evaluate whether the grantors of source deeds who used the statutory warranty form intended to grant easements instead of fees simple, the court offered multiple (seven plus two) factors by which to analyze, and based on the evidence before the court, judge the intent of the grantors of source deeds to the railroads. See id. at 912. In Kershaw, the most recent State of Washington Supreme Court case to apply the Brown factors in order to evaluate a deed, the court wrote: “Here the deed appears to contain elements characteristic of both a fee and easement conveyance. In short, the deed is in statutory warranty form, which carries a presumption of conveying fee, but contains the words ‘right of way’ in both the granting clause and the habendum clause, which we have stated presumptively evinces the parties’ intent to convey only an easement.” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Association,
The United States District Court for the Western District of Washington, the United States Court of Appeals for the Ninth Circuit, and the State of Washington Court of Appeals also undertook their review of the Hilchkanum deed, one of the SLS & E Deeds also before this court, pursuant to the Brown factors, although the Hilchkanum deed at issue was determined by each of those courts not to be in the form of a statutory warranty deed, and concluded the conveyance was that of a fee interest. See King Cnty. v. Rasmussen,
The State of Washington Supreme Court historically has reached the conclusion that when the phrase “right of way” is present in a railroad conveyance, an easement was intended. According to cases examined by the court in Hanson Industries, Inc. v. County of Spokane:
Washington decisions have consistently interpreted deeds granting a strip of land for a railroad right-of-way as conveying an easement, even in the face of traditional factors signifying a fee. Thus, if the words “right-of-way” appear in the granting clause, the interest conveyed is an
easement, even if the deed is in the statutory warranty form, uses the words “fee simple,” contains covenants of warranty, a habendum clause conveying the land “forever,” and other indicia of a fee simple. Reichenbach v. Wash. Short Line Ry.,10 Wash. 357 , 358,38 P. 1126 (1894); Morsbach,152 Wash. at 564-65 ,278 P. 686 ; Swan,37 Wash.2d at 534 ,225 P.2d 199 ; Veach,92 Wash.2d at 573-74 ,599 P.2d 526 ; Zobrist v. Culp,95 Wash.2d 556 ,627 P.2d 1308 (1981) (citing cases from other jurisdictions); Roeder,105 Wash.2d 567 ,716 P.2d 855 ; Lawson v. State ],107 Wash.2d 444 ,730 P.2d 1308 [ (1986) ]; see also Harris,120 Wash.2d 727 ,844 P.2d 1006 ; [King County v. ]Squire Inv.,59 Wash.App. 888 ,801 P.2d 1022 [ (1990) ].
Morsbach is the principal Washington case for this general rale. After reviewing cases from other jurisdictions, Morsbach adopts the majority view that, unless a different intent is unambiguously specified, the grant of a right-of-way to a railroad conveys an easement. This is so even in the face of contrary language in a habendum clause, and warranting covenants. Morsbach,152 Wash. at 574-75 ,278 P. 686 .
Hanson Indus., Inc. v. Cnty. of Spokane,
Because “the intent of the parties is of paramount importance,” Brown v. State,
(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 grant*787 ed 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 сlause, and many other considerations suggested by the language of the particular deed.
Brown v. State,
As noted above, the State of Washington Supreme Court in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, labeled the examination of the first four Brown factors “ ‘Strip of Land’ v. ‘Right of Way,’ ” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
Moreover, courts in the State of Washington have not found that the mere use of the word “strip” is dispositive to demonstrate intent to convey a fee. In a number of cases, the State of Washington Supreme Court has found railroad rights of way conveyed an easement even though the deed referred to the right of way as a strip. See Swan v. O’Leary,
The SLS & E Deeds also use the phrase “right of way” as a limitation of the grant to the SLS & E. The deed in Kershaw conveyed “a strip of land seventy five feet wide ... to be used by [the Railway] as a right of way for a railway forever, together with the perpetual right to construct, maintain and operate a railway or railways over and across the same.” Id. at 18 (brackets in original). The SLS & E Deeds state the purpose of the conveyance as: “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....”
The defendant argues, however, that the SLS & E Deeds contain “no language limiting the grant to the privilege of constructing,
At oral argument in the consolidated eases before this court, the defendant also cited to footnote eleven in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association,
Level 3 asserts a recent Division One case, Ray v. King County,120 Wash.App. 564 ,86 P.3d 183 , review denied,152 Wash.2d 1027 ,101 P.3d 421 (2004), which applied the Brown factors to a railroad deed and found a fee simple conveyance, is analogous here and we should apply the same analysis. However, while the Ray deed did include the phrase “right of way” it did so only to the extent that it stated it was conveying a “right of way strip.” Id. at 572,86 P.3d 183 . The Ray court thus found no presumption in favor of an easement and applied the Brown factors to reach its conclusion that a fee interest was transferred. Here, the deed specifically established the purpose of the grant when it stated the land was “to be used by [the Railway] as a right of way for a railway.” This creates a presumption in favor of an easement which was not present in Ray.
Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
Moreover, the Kershaw footnote is dictum, as the interpretation of the Hilehkanum source deed was not before the court, was included in a footnote as a passing remark, and was not essential to the court’s determination that the deed at issue before the court in Kershaw conveyed an easement. See State ex rel. Lemon v. Langlie,
“The word [dictum] is generally used as an abbreviated form of obiter dictum, ‘a remark by the way;’ that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the ease at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion.”
Id. (quoting Black’s Law Dictionary 541 (4th ed. 1951); see also Amalgamated Transit Union Local 587 v. State,
The fifth Brown factor asks whether there was a reverter clause in the original source deed. In support of its argument that fee interests were created in the source deeds, the defendant argues that the existence of a reverter clause would indicate that an easement was intended and, therefore, because the SLS & E Deeds do not contain a reverter clause, the opposite conclusion should be reached. Defendant cites to Ray v. King County, which states “[presumably the existence of such a clause suggests an easement was intended.” Ray v. King Cnty.,
The sixth Brown factor inquires into whether the consideration was substantial or nominal. The consideration referred to in the SLS & E Deeds was not listed in monetary terms, rather the consideration was identified as “the benefits and advantages to accrue to us [the grantors] from the location, construction and operation of the Seattle Lake Shore and Eastern Railway....” There is no indication in the SLS & E Deeds or the record before the court that monetary compensation was part of the SLS
Plaintiffs also cite to the case of Mouat v. Seattle, Lake Shore & Eastern Railway Co.,
The seventh Brown factor has two parts and inquires first whether the conveyance contains a habendum clause and also allows inquiry into the “many other considerations suggested by the language of the particular' deed.” Brown v. State,
The SLS & E Deeds all contain habendum clause language which reads: “To Have and to Hold the said premises with the appurtenances unto the said party of the second part [the SLS & E] and to its successors and assigns forever.” The Palmberg source deed, the deed at issue in Nelson and Collins, includes the same habendum clause: “To have and to hold the said premises with the appurtenances unto the said party of the second part and to its successors and assigns forever,” but continues: “All riparian and water front rights on Lake Samamish [sic]
In addition to the seven enumerated Brown factors, the Brown court further indicated two additional factors should be reviewed, “the circumstances surrounding the deed’s execution and the subsequent conduct of the parties.” Brown v. State,
The court in Brown v. State, although briefly examining the historical context of the conveyances before it, did not examine the conduct of any subsequent owner. See Brown v. State,
As to “the circumstances surrounding the deed’s execution and the subsequent conduct of the parties,” Brown v. State,
The Schroeder Plaintiffs, No. 04-1456L (the Tahalthkut Deed)
The plaintiffs in Schroeder are successors in interest to Louis and Mary Tahalthkut, who conveyed a right of way to the SLS & E on May 6, 1887. On May 4, 1907, Mary Tahalthkut subsequently conveyed the land to T.N. Tallentire by Warranty Deed. The warranty deed does not mention the right of way to the SLS & E. The deed between Mary Tahalthkut and T.N. Tallentire, therefore, does not provide evidence regarding the intent of the parties.
The plaintiffs also identify a subsequent agreement between Louis Tahalthkut and Daniel J. Reichert, executed on June 22, 1889, as evidence of the source grantor’s intent to convey an easement. In this subsequent conveyance, Louis Tahalthkut agreed to sell Daniel Reichert all timber that was on his property for logging. The timber agreement states, in part:
These articles of agreement made entered into and executed at the city of Seattle, King County, Washington Territory on this 22nd day of June, A.D. 1889, by and between Louie Tahalthkut of King County aforesaid party of the first part, and Daniel J. Reichert of the city of Tacoma, Pierce County in said Territory party of the second part, Witnesseth: 1st That the said party of the first part for and in consideration of the covenants promises and agreements on the part of the said party of the second part hereinafter contained, covenants promises and agrees to sell and convey and by these presents does sell and convey and confirm unto the said party of the second part his heirs and assigns, and said party of the second part covenants promises and agrees to buy and take all and singular the timber suitable for logging and piling purposes now standing growing and being on those certain pieces or parcels of land situate lying and being in King County, Washington Territory and particularly described as follows, to wit: Lot 4 and SE H of SW Hi of SEC. 32 in Township 25 N of Range 6 E containing 75 acres for the sum of $250.00 gold coin of the United States of America to be paid at the date of the execution of these presents and the said party of the second part in consideration of the premises, covenants promises and agrees to pay to the said party of the first part the said sum of $250.00 gold coin at the time aforesaid.
Plaintiffs assert that there was “no exclusion for timber growing in the 100-foot wide right of way” and that when Daniel Reichert agreed “to buy and take all and singular the timber suitable for logging and piling purposes now standing growing and being on those certain pieces or parcels of land,” these words demonstrate that it was understood that “Tahalthkut still owned the fee title to that land and therefore could rightfully sell the timber.” If Louis Tahalthkut’s intent was to convey the 100-foot wide right of way in fee simple to the SLS & E, the subsequent agreement with Daniel Reichert should have reflected that Louis Tahalthkut no longer
The Chamberlin Plaintiffs, No. 04-1457L (the Hilchkanum Deed)
The plaintiffs in Chamberlin are successors in title to Bill and Mary Hilchkanum, who conveyed the right of way to the SLS & E on May 9, 1887. In subsequent conveyances, the Hilehkanums described the right of way in terms of acres of land, and referenced the right of way without further description, and in some instances, without mentioning the phrase “right of way” at all. On December 15, 1890, Bill and his then-wife Annie Hilchkanum сonveyed all of Lot 2, described as “lot two (2) in section six (6) township twenty-four (24) north of range six (6) east of Willamette Meridian containing twenty-one and eighty hundredths (21 80/100) acres,” to Julia Curley without mention of the right of way. On December 16, 1898, Bill Hilchkanum conveyed to his then-wife, Annie Hilchkanum, “Lot one (1) less three (3) acres of right of way of railroad and lot three (3) less three and 25/100 acres right of way of railroad, and all of lot five (5) all in section six (6) in township twenty-four (24) N. of range six (6) east_” On March 15, 1904, Bill and his then-wife Louise Hilch-kanum conveyed to Chris Nelson, without mention of the right of way, the identical property conveyed to Julia Curley. The conveyance to Chris Nelson was for “Lot Two (2) Section Six (6) Township twenty-four (24), North, Range six (6) east of the Willamette Meridian in the County of King, State of Washington, containing twenty one acres more or less.” Also on March 15, 1904, Louise Hilchkanum conveyed by quit claim deed to Chris Nelson, Lot 1 “less three (3) acres heretofore conveyed to the Seattle & International Railway Company for right of way purposes.” On June 30,1905, Bill Hilch-kanum conveyed part of Lot 3 to John Hirder. That deed describes the boundary of the property, in part, as “thence in a Northeasterly direction along the right of way of the Seattle Lake Shore and Eastern Railway. ...” On October 27, 1906, Bill and Louise Hilchkanum conveyed by Quit Claim Deed to King County, a sixty foot strip of land in Lot 3, and the right of way was indicated as, “Right of Way Monahan Road.” On March 3,1909, Bill Hilchkanum conveyed another portion of Lot 3 to Chas Edeen by quit claim deed, which described the conveyance as including “[a]ll of the land situated in lot three (3) of section six (6) ... excepting the Northern Pacific Ry. right of way_” The plaintiffs argue that because “Hilch-kanum consistently utilizes the term ‘right of way' in his subsequent conveyances,” that this demonstrates his intent was “consistent with the grant of an easement.”
Although most of the subsequent conveyances of the Hilchkanum deed property in the record before this court included the phrase “right of foreway,” two of the seven conveyances did not mention the phrase. The Hilehkanums appear to have used different ways of describing the attributes of their property in subsequent conveyances, sometimes using just the phrase “right of way” and other times describing the geographic boundaries without using the phrase “right of way.” Moreover, the Hilehkanums conveyed their interests in the same property to multiple individuals. The record before the court indicates that the same portion of Lot 1 was conveyed twice, once from Bill Hilchkanum to his wife Annie on December 16, 1898, and once from Louise Hilchkanum to Chris Nelson, on March 15, 1904. Additionally, Bill Hilchkanum appears to have conveyed his interest in portions of Lot 3 four times, first on December 16,1898 to his wife Annie, then to John Hirder on June 30, 1905, then to King County on October 27,1906, and finally, on March 3, 1909, to Chas Edeen. Conveying the same property to multiple individuals using different language adds confusion. The mention in 1898 of the right of way in the conveyance by Bill Hilchkanum to Annie Hilchkanum and also in the 1904 conveyance by Louise Hilchkanum to Chris Nelson, not
The Klein Plaintiffs, No. 04-1458L (the Davis Deed)
The plaintiffs in Klein are successors in title to George and Elizabeth Davis, who conveyed the right of way to the SLS & E by deed dated May 9, 1887. On June 30, 1902, George Davis conveyed Lot 1 by Warranty Deed to the Lake Sammamish Shingle Company. That deed is silent as to the railroad right of way and, therefore, that subsequent conveyance is not considered helpful to understanding the intent of George Davis. See Ray v. King Cnty.,
The Peterson Plaintiffs, No. 04-1459L and the Lane Plaintiff, No. 04-1468L (the Sbed-zuse Deed)
The plaintiffs in Peterson and Lane are successors in title to Bill and Lucinda Sbed-zuse, who conveyed the right of way to the SLS & E on May 6, 1887. On August 5, 1905, Bill Sbedzuse conveyed, by warranty deed, his undivided two-thirds interest in Lot 3 and the N.E. % of Section 32 to G.R. Fisher. The August 5, 1905 deed is silent with respect to the railroad right of way, and, therefore, not helpful to explain the grantor’s intent.
On June 22, 1889, Bill Sbedzuse entered into the same kind of timber agreement with Daniel J. Reichert as had his neighbor, Louis Tahalthkut, selling to Daniel Reichert all timber suitable for logging that was on Bill Sbedzuse’s property. The agreement reads, in part: “to buy and take all and singular the timber suitable for logging and piling purposes now standing growing and being on those certain pieces or parcels of land situate lying and being in King County, Washington Territory and particularly described as fol-lows_”
The Spencer Plaintiffs, No. 04-1463L (the Yonderpump Deed)
The plaintiffs in Spencer are successors in title to Jim and Alice Yonderpump who conveyed the right of way to the SLS & E on May 6, 1887. Alice Zacuse, Jim Yonder-pump’s widow, and her husband at the time, Jim Zacuse, conveyed a portion of Lot 2 to George Clark and Tolle Anderson by Quit Claim Deed dated October 28, 1911, without mention of the railroad right of way. On January 27, 1919, Alice Zacuse conveyed by Quit Claim Deed the remaining portion of Lot 2 to W. Baron Cook, again without mentioning the right of way. Neither of these subsequent conveyances, therefore, is helpful to explain the grantors’ intent.
The Nelson Plaintiffs, No. 04-1465L and the Collins Plaintiffs, No. 04-1472L (the Palmberg Deed)
The plaintiffs in Nelson and Collins are successors in title to Alfred Palmberg, who conveyed the right of way to the SLS & E on
Alfred Palmberg also conveyed a portion of his land in Lots 2 and 3, in Section 20, to Alonzo Charles Stares by Warranty Deed dated March 30, 1893. The property is described, in relevant part, as:
Beginning at a point on the line between lots 2 and 3 in section 20 Tp. 25 N R. 6 E. W.M. 569 64/100 feet south of the NW corner of said lot 3 thence west in said lot 2 two hundred and twenty one and 58/100 (221 58/100) feet thence southwesterly along a line drawn at right angels [sic] to the center line of the Seattle Lake Shore and Eastern Railway Company fifteen and 3/10 feet to the easterly margin of the right of way of said Railway Company thence southeasterly alоng said right of way two hundred forty and 4/10 (240 4/10) feet thence east ... Together with all riparian rights as reserved from the Seattle Lake Shore and Eastern Railway Company fronting upon appurtenant to the land hereinbefore described.
The conveyance between Alfred Palmberg and Alonzo Charles Stares likewise specifically mentions the “right of way” to the SLS & E, but as part of the description of the property, and provides relatively little illumination as to the source grantor’s intent.
Plaintiffs also request the court to examine a number of additional “circumstances surrounding the deed’s execution,” as suggested in Brown v. State,
The plaintiffs further assert that the railroad drafted the deeds and that any ambiguities, therefore, should be construed against the railroad. The court in Hanson Industries, Inc. v. County of Spokane,
It further appears from the record that both Bill and Mary Hilchkanum made their “marks” on the deed as opposed to signing the conveyance. Similarly, Louis and Mary Tahalthkut, Bill and Lucinda Sbedzuse, George and Elizabeth Davis, and Jim and Alice Yonderpump made their marks in the form of an “x” on the deed. The presence of a mark instead of a signature suggests that these source deed grantors likely were not literate, further lending support to the conclusion that the railroad drafted the SLS & E Source Deeds. Although no signature appears on the version of the Palmberg deed in the record, there is no mark, implying that he may have signed his original source deed. The Palmberg source deed, however, is only slightly different from the other SLS & E Deeds in format, which suggests his deed too was drafted by the railroad.
The plaintiffs further argue that “the term ‘right of way’ was commonly understood in Seattle in 1887 to mean an easement.” Plaintiffs cite to a number of newspaper articles, included in the Joint Appendix before this court, which use the term “right of way.” The articles do not define the term “right of way,” which plaintiffs argue demonstrates that the phrase was commonly used and understood in 1887. Plaintiffs also cite to Washington Ordinance No. 806, passed January 27, 1887, by which the City of Seattle granted the SLS & E a 30-foot right of way within the 120-foot width of Railroad Avenue. The Ordinance stated, in part: “An ordinance granting to the Seattle, Lake Shore and Eastern Railway Company, its successors and assigns, the right and authority to locate, lay down, construct, maintain and operate a Railway, consisting of one or more tracks in, along, upon, and over certain public streets and alleys of the City of Seattle.” The Ordinance also provided: “That there be, and hereby is, granted to the Seattle, Lake Shore and Eastern Railway Company, its successors and assigns, the right and authority over a strip of land thirty (30) feet wide in, upon, along and over the streets and alleys ... ”, and that other railroads “shall have the right to common use of said tracks over said right of way for the running of its trains.... ” The plaintiffs argue that the language in Washington Ordinance No. 806 “indieate[s] that the City was granting to the railroad a right to pass through the public street,” which could only be an easement and not a fee interest. The plaintiffs argue that the City of Seattle could only have acquired an easement and, therefore, could not have conveyed a fee interest, citing to the State of Washington Supreme Court case of
The plaintiffs also cite to the definition of the term “right of way” from the first edition of Black’s Law Dictionary, published in 1891, four years after the SLS & E Deeds were executed. Black’s Law Dictionary defines “right of way” as: “The right of passage or of a way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.” Black’s Law Dictionary 1046 (1st ed. 1891). Black’s Law Dictionary also stated: “ ‘Right of way,’ in its strict meaning, is the right of passage over another man’s ground; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an usual sense, by applying it to absolute purchase of the fee simple of lands to be used for a railway or any other kind of way.” Id. Therefore, the plaintiffs argue, “[i]t would have been a very unusual thing in Seattle in 1887 to use the term right of way and intend to refer to fee simple title.”
The plaintiffs further assert that when the Davis conveyance transferred a right of way, George Davis “had not yet received a patent to his homestead claim.” Therefore, according to the plaintiffs, “any attempt to convey fee title to the yet unpatented homestead claim would have worked a forfeiture of Davis’s entire homestead claim.” Plaintiffs argue this demonstrates that George and Elizabeth Davis had the intent to convey only an easement. According to plaintiffs, prior to 1873, homesteaders were prohibited from alienating any part of their claim prior to receiving a patent. See Anderson v. Carkins,
Finally, plaintiffs cite to an 1899 Department of the Interior (DOI) Public Lands Agency Decision, South Perry Townsite v. Reed,
Just as the plaintiffs offer additional considerations to demonstrate only an easement was conveyed by the grantors of the source deeds, the defendant offers a number of considerations it contends demonstrates an intent by the source deed grantors to convey fee interests. The defendant argues that “[t]he railroad spurred significant growth and industry in the area, including logging and mining operations_ So that the railroad would definitely locate its line across their property, the landowners reasonably would convey their fee simple interest.” The defendant contends that “the people living along the eastern shore of Lake Sammamish enthusiastically welcomed the railroad.” The defendant also argues that the cost of the construction to build the railroad indicates the railroad would have sought a fee and not an easement, interest from the grantors. The defendant cites to a July 8,1887 newspaper report, included in the Joint Appendix, that in 1887 the SLS & E “will spend” over $125,000.00 on the railroad lines “with the prospect” of spending more in 1888. Although there is no evidence in the record about the amount the SLS & E actually spent, the defendant contends, because “the railroad spent considerable sums of money to construct the railroad,” logically the railroad “would want the long-term security of owning the right of way in fee simple title.” It is speculation, however, to conclude that fee title was required by the railroad based on projected railroad construction costs or that landowners would be willing to grant a fee interest because the construction of the railroad would be of benefit to them. Moreover, regardless of whether the railroad companies incurred costs to construct their railroad lines, the State of Washington Supreme Court often has found that only an easement, not a fee interest was conveyed to the railroad when the term right of way was used in the source deed. See, e.g., Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The defendant relies heavily on decisions issued by the United States District Court for the Western District of Washington and the United States Court of Appeals for the Ninth Circuit in King County v. Rasmussen,
As described above, all parties and the court agree that for the deed analysis Washington state law controls. See Barclay v. United States,
In 2006, the State of Washington Supreme Court decided Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Association, but unlike in Brown v. State, decided in 1996, the Kershaw court found that an easement, not a fee interest was conveyed, despite the use of a statutory warranty form deed. See Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n,
Analysis of the Ray v. King County and the King County v. Rasmussen cases, and their analytical impact on this consolidated action, must be undertaken in the context of the State of Washington Supreme Court decisions in Brown v. State and Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Association. Certain important differences between Ray v. King County and King County v. Rasmussen and the SLS & E Deeds currently before this court are apparent. The Ray v. King County and King County v. Rasmussen cases were brought as quiet title actions, not as taking claims, as are the consolidated cases before this court. See generally Ray v. King Cnty.,
The District Court for the Western District of Washington, the United States Court of Appeals for the Ninth Circuit and the State of Washington Court of Appeals all rejected the Brown presumption in favor of a fee interest since the Hilehkanum deed was not in the statutory warranty form, but could not apply the as yet announced State of Washington Supreme Court’s presumption in Kershaw in favor of an easement. See King Cnty. v. Rasmussen,
Moreover, the record in this case contains exhibits which were not before the courts in Ray v. King County and King County v. Rasmussen. The record in this court contains six virtually indistinguishable, SLS & E Deeds and additional relevant exhibits.
In contrast, in Ray v. King County, the State of Washington Court of Appeals indicated that the Hilchkanums, not the railroad, drafted the deed, which appears from the record before this court to be both implausible and incorrect. See Ray v. King Cnty.,
Both the District Court for the Western District of Washington and the Ninth Circuit also identified more limited subsequent conveyances by the Hilchkanums than in the record before this court.
Nonetheless, the Ninth Circuit in King County v. Rasmussen,
Like the District Court for the Western District of Washington and the Ninth Circuit, the Washington state courts in Ray v. King County identified fewer subsequent conveyances by the Hilchkanums than are in the record before this court. Although the State of Washington Court of Appeals in Ray discussed more of the Hilchkanums’ subsequent conveyances than either the District Court for the Western District of Washington or the Ninth Circuit, the State of Washington Court of Appeals did not address all of the Hilchkanums’ subsequent conveyances in the record before this court. The State of Washington Court of Appeals did not mention one of the March 15, 1904, conveyances to Chris Nelson, the October 27, 1906, conveyance by Bill and Louise Hilchkanum to King County, or the March 3, 1909, conveyance from Bill Hilchkanum to Chas Edeen. Also, like the District Court for the Western District of Washington and the Ninth Circuit, the Washington state courts in Ray did not consider the subsequent conveyances made by the other source deed grantors, which are in the record before this court.
The defendant also argues that, based on the analysis by State of Washington Court of Appeals in Ray v. King County, the language of the paragraph which reads: “[a]nd the Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road,” is indicative of a fee interest. The defendant states, “the Ray v. King County court found it significant that the Hilchkanum deed contains an easement permitting the railroad to ‘go upon the land
The dissenting opinion in Ray v. King County, however, noted that in 1887 railroads were prohibited from appropriating rights of way wider than 200 feet. Id. at 201 (Baker, J., dissenting) (citing Code of 1881, § 2456). Section 2456 of the Code of 1881 (now codified at Wash. Rev.Code Ann. § 81.36.010 (2011)) states:
Such corporation may appropriate so much of said land as may be necessary for the line of such road or canal, or the site of such bridge, not exceeding two hundred feet in width, besides a sufficient quantity thereof for toll-houses, work-shops, materials for construction, a right of way over adjacent lands to enable such corporation to construct and repair its road, canal, or bridge, and to make proper drains; and in the case of a railroad, to appropriate sufficient quantity of such lands, in addition to that before specified in this section, for the necessary side tracks, depots, and water stations....
See Ray v. King Cnty.,
The dissent in Ray also indicated that, “[t]he railroad’s right to cut trees extended outside of the right of way area allowed by the territorial code because the easement allowing the railroad the right to cut trees was distinct from its right of way. This secondary access grant was not exclusive, as the right of way was, and terminated if the railroad use terminated, whereas the railroad right of way was exclusive and akin to a street right of way.” Id. This court agrees that the language on which the defendant relies in the SLS & E Deeds does not support the position that the grantors intended to convey a fee interest to the railroad.
Although defendant offered a number of arguments to demonstrate that this court should find the SLS & E Deeds conveyed fee interests, none of the arguments are compelling enough to overcome the Kershaw presumption in favor of an easement, triggered by the phrase “right of way” used in the SLS & E Source Deeds. After analysis of the seven plus two Brown factors, this court concludes that the language of the source deeds was intended to convey easements to the SLS & E. Because of the additional information in the record, and because this court concludes that the railroad, and not the source deed grantors, drew up the deeds, executed, for the most part, by illiterate landowners, any ambiguity in the SLS & E Deeds must be interpreted in the grantors’ favor. Combined with the Kershaw presumption in favor of an easement interest when the phrase “right of way” is used, the contemporaneous understanding of the phrase “right of way” at the time the source deeds were executed, reinforced by a contemporaneous legal dictionary, contemporaneous news media, and the close in time DOI decision, this court concludes that the SLS & E Deeds conveyed easements only to the railroad. The plaintiffs in Schroeder, Chamberlin, Klein, Peterson, Spencer, Lane, Nelson, and Collins may pursue their causes of action for a Fifth Amendment taking.
The 1904 Reeves Quit Claim Deed
With respect to the plaintiffs Paul and Joy Manning and the DeMeester Family Limited Partnership, Case No. 04-1466L, the court must determine whether the 1904 Reeves Quit Claim Deed, executed by grantors J.D. and Elizabeth Reeves, conveyed an easement or a fee simple interest to the Northern Pacific Railway Company, the successor of the Seattle, Lake Shore & Eastern Railway Company. The 1904 Reeves Quit Claim Deed states in part:
This Indenture made this third day of June in the year of our Lord one Thousand*804 nine hundred and four, Between J.D. Reeves and Elizabeth Jane Reeves, his wife, the parties of the first part and the Northern Pacific Railway Company, a corporation, the party of the second part, Witnesseth: That the said parties of the first part for and in consideration of the sum of One hundred and Fifty dollars of the United States to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged do by these presents, remise, and release, and forever quit claim unto the said party of the second part and to its assigns all right, title and interest and estate of said first parties in and to all that certain lot, piece or parcel of land, situate lying and being in the County of King, State of Washington, and particularly bounded and described as follows, to wit:
The interest of said grantors in and to a tract of Land lying within lines drawn parallel with with [sic]41 the center of the main Line track and fifty feet from said center of the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway, through the Townsite of Inglewood, King County, State of Washington, and running from Ash Street to Willow Streets and through the following Blocks in said Townsite; [list of blocks] according to the plat of said Town of Inglewood as recorded in Volume three, of Plat Books, page 169 records of King County, Washington; the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the Grantor J.D. Reeves by grant of date, November 13, 1903, from King County, Washington, said lots being as follows, [list of lots and blocks]
Together will [sic] all and singular the tenements, hereditaments and appurtenances thereunto, belonging, or in anywise appertaining, and the reversions, remainder and remainers [sic], rents, issues and profits thereof.
To have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever. In witness whereof, The said parties of the first part have hereunto set hands and seals the day and year first above written.
The 1904 Reeves Quit Claim Deed before this court is not in the form of a statutory warranty deed. The form statutory warranty deed states in part, “ ‘[t]he 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)....’” Brown v. State,
The defendant, however, argues that the 1904 Reeves Quit Claim Deed is “substantially in the form of a statutory quit claim deed,” and that “the use of the statutory form for a quit claim deed creates a presumption that the land was conveyed by Reeves to the Railroad in fee.” In support, the defendant cites Ray v. King County for the proposition, “[w]here such a statutory deed is used and the granting clause conveyed a definite strip of land, the court will conclude the grantor intended to convey fee simple title unless additional languagе in the deed clearly and expressly shows otherwise.” Ray v. King Cnty.,
In addition, there are significant differences between the 1904 Reeves Quit Claim Deed and the form statutory quit claim deed in effect at the time the 1904 Reeves Quit Claim Deed was executed. The statute governing the form statutory quit claim deed at the time the Reeves conveyance was executed states:
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., 18...
Laws of 1886, p. 178 § 5 (codified at Rem. & Ball. Code § 8749).
Even if the 1904 Reeves Quit Claim Deed was in the form of a statutory quit claim deed there is no operative presumption that a statutory quit claim deed conveys a fee interest. See Roeder Co. v. K & E Moving & Storage Co., Inc.,
The language in the 1904 Reеves Quit Claim Deed also compares favorably to other quit claim deeds, which, after review, the
The right of way language in the 1904 Reeves Quit Claim Deed is similar to the language of the granting clause in the quit claim deed reviewed in Veach v. Culp. See Veach v. Culp,
The language in the 1904 Reeves Quit Claim Deed also is similar to the language of the deed in Swan v. O’Leary,
As discussed above, the State of Washington Supreme Court stated that, as in both Veach v. Culp and Swan v. O’Leary, a presumption of an easement is triggered when the phrase “right of way” is used in a source grant to establish the purpose of that grant. See Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The court in Kershaw indicated, however, that “a more thorough examination of the deed is appropriate,” Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The Kershaw court described the first four Brown factors as a comparison of a “ ‘Strip of Land’ v. ‘Right of Way.’ ” See Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
The fifth Brown factor asks whether the deed contains a reverter clause. There is no reverter clause in the 1904 Reeves Quit Claim Deed. Hanson Industries, Inc. v. County of Spokane, indicates that, “[a] railroad right-of-way deed need not, however, contain a reverter clause to effect an automatic reversion to the grantor upon abandonment.” Hanson Indus., Inc. v. Cnty. of Spokane,
The sixth Brown factor inquires whether the consideration expressed was substantial or nominal. The consideration paid by the Northern Pacific to the Reeves grantors for the right of way in 1904 was “the sum of One hundred and Fifty dollars_” The defendant notes that the grantors had purchased 215 lots seven months earlier for $71.50. The State of Washington Supreme Court in Veach v. Culp examined a quit claim deed for which the consideration paid for a railroad right of way was $225.00. See Veach v. Culp,
The seventh Brown factor asks whether the conveyance contained a habendum clause. The 1904 Reeves Quit Claim Deed habendum clause states, “[t]o have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever.” The assigning of the premises “forever” can indicate a fee simple interest, see Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Ass’n,
In addition to the seven above factors, the court in Brown also indicated the need to examine the other circumstances surrounding the deed’s execution and the subsequent conduct of the parties to determine intent. See Brown v. State,
Although the State of Washington Supreme Court in Brown v. State indicated courts may look to “many other considerations suggested by the language of the particular deed,” Brown v. State,
CONCLUSION
For the reasons discussed above, the court finds that the grantors of the SLS & E Deeds conveyed easements, and not fee interests to the railroad. Similarly, the grantors of the 1904 Reeves Quit Claim Deed conveyed an easement, and not a fee interest to the railroad. Therefore, the court DENIES the defendant’s motion for partial judgment and GRANTS the plaintiffs’ motion for partial judgment. The plaintiffs in Schroeder, Chamberlin, Klein, Peterson, Spencer, Lane, Nelson, Collins, and Manning may proceed with their causes of action for a Fifth Amendment taking.
IT IS SO ORDERED.
Notes
. The Tahalthkut source deed lists "Louis Ta-halthkut'’ as a grantor, however the timber agreement, discussed below, lists "Louie Tahalth-kut” as grantor. The court will use the name on each document when quoting the documents directly, but will otherwise use Louis Tahalthkut.
. The Joint Stipulation of Issues and Facts states the spelling of the last name for Bill and Lucinda as "Sbedzuse.” The joint stipulation for additional transcribed documents states the last name for Bill as “Sbedzue.” Although the name is not clear on the copies of the original documents, this opinion will use Sbedzuse.
.Originally the consolidated cases also included claims by Douglas Edlund, Frederick and Karen Horvath, and Robert and Denise Rundle, which were dismissed on May 14, 2007, and claims by Gerald and Kathryn Ray, which were dismissed on April 13, 2010.
. This first "[sic]" is included in the copy of the deed provided to the court in the Joint Stipulation of Issues and Facts.
. The plaintiffs in Schroeder are Clifford F. and Kathryn L. Schroeder (husband and wife).
. The consolidated case formerly was captioned Gerald and Kathryn Ray v. United States. In the court’s opinion issued April 12, 2010, the claims brought by Gerald and Kathryn Ray were dismissed, with prejudice. See Beres, et al. v. United States,
. The plaintiffs in Chamberlin are Martin and Carol Chamberlin (husband and wife), Craig and Tammy Owens (husband and wife), Jeffrey and Sandra Sheehan (husband and wife), Steven and Susan Roberts (husband and wife), Frederic and Linda Vicik (husband and wife), Steven and Karin Farrar (husband and wife), Hank and Eden Waggoner (husband and wife), Patrick and Che-noa Haluptzok (husband and wife), Lester and Barbara Peterson (husband and wife), Lauren Jenkins, J. Terry Pietromonaco, Gary Nelson, and Hans Apel and Pamela Burton (husband and wife). J. Terry Pietromonaco is listed as both "J. Terry Pietromonaco” and "Terry Pietromonaco” in the complaint.
. Although listed as both "Annie” and "Anna” on different deeds, both deeds identify Annie or Anna as Bill Hilchkanum’s wife. This opinion will use "Annie” to identify this particular wife of Bill Hilchkanum.
. The plaintiffs in Klein are Henry D. and Judy D. Klein (husband and wife).
. The plaintiffs in Peterson are Clarence A. Peterson, George W. Raab, Donna Marie Raab Martinez, and J. Herb and Judith T. Gilbo (husband and wife). Judith Gilbo is listed as both “Judith D. Gilbo” and "Judith T. Gilbo” in the complaint.
. The plaintiff in Lane is Phyllis Lane.
. The plaintiffs in Spencer are Raymond and Lael Spencer (husband and wife), James and Billie Cairns (husband and wife), Thomas and Angela Napier (husband and wife), William and Lynda Ott (husband and wife), William and Carolyn Daly (husband and wife), Douglas and Joyce McCallum (husband and wife), Evan and Beverly Helling (husband and wife), Reid and Susan Brockway (husband and wife), Phillip and Arlene Pielemeier (husband and wife), Jorge and Kristine Calderon (husband and wife), Robert Lester, John and Carolyn Rossi (husband and wife), Debra Grove, Douglas and Jill Hendel (husband and wife), the Welch Family LLC, the Estate of Mavis N. Welcome, Karen Gregory, and Diane Gregory.
.The plaintiffs in Nelson are Robert G. and Beth Nelson (husband and wife), the Estate of William F. Hughes, Jill Barney, Beth Nelson, William Hughes, and Charles Hughes. Robert
.The plaintiffs in Collins are D. Mike and Vanessa Collins (husband and wife), George and Judith Sutherland (husband and wife), Howard and Pam Freedman (husband and wife), and Donald and Jean Barrett (husband and wife).
. The court notes that the name on the Partial Warranty/Fulfillment Deed, "Mary Beth Nelson,” was different than the name on the complaint, "Beth Nelson.”
. The plaintiffs in Manning are Paul and Joy Manning (husband and wife) and the DeMeester Family Limited Partnership.
. At this time, the court does not reach a legal judgment as to the validity of the chain of title with respect to any of the plaintiffs’ properties.
. The plaintiffs in the Chamberlin case are successors in title to Bill and Mary Hilchkanum.
. This court previously determined that Gerald and Kathryn Ray, who had filed a complaint as part of Case No. 04-1457L, were collaterally estopped from pursuing their claims in this court because the issues raised were identical in this court and in the previous state court case, both Ray plaintiffs were parties in the state court case, the case had been fully litigated and had resulted in a final judgment. See Beres, et al. v. United States,
. The court in Roeder Co. v. K & E Moving & Storage Co., Inc.,
. As described above, however, the deed at issue in Veach v. Culp,
. Habendum clauses are defined as: "The part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant.” Black’s Law Dictionary 778 (9th ed. 2009).
. In a dissenting opinion in Brown, Justice Sanders wrote:
The majority ignores the ultimate reason for this inquiry (was it the intention of the parties to convey a right to use the land for the purpose of operating a railroad, or was it, on the other hand, their intent to convey an absolute fee title) by ignoring the established rule of construction in such cases that the intention of the parties, insofar as the same can be determined from the face of the deed, must be gleaned from the entire instrument, not a particular word or phrase placed here or there, or the absence thereof.
Brown v. State,
. In Brown, the court did not analyze its own fifth and seventh factors (whether a reverter clause or habendum clause was present) in the statutory warranty deeds under review. See generally Brown v. State,
. For example, the Hilchkanum deed states: "Lots one (1) two (2) and three (3) in section (6) township 24 North of Range six (6) East.”
. For example, the Hilchkanum source deed states:
Commencing at a point 410 feet West from North East comer of Section six (6) township 24 N, R. 6 East and running thence on a one*781 (1) degree curve to the left for 753 3/10 feet thence South 16 degrees and 34 min. West 774 2/10 feet thence with a 3 degree curve to the right for 700 feet thence with an 8 degree curve to the right for 260 4/10 feet thence South 58 degrees and 24 minutes West 259 6/10 feet thence with an 8° curve to the left for 564 4/10 feet thence South 13° 15' W 341 4/10 feet thence with a 6° curve to the right for 383 3/10 feet thence S 36° 15 W 150 feet to South boundary of lot 3 of said Sec. 6 which point is 1320 feet North and 2170 west from SE corner of said Sec. 6.
. The current form of the statutory warranty deed can be found at Wash. Rev.Code Ann. § 64.04.030(2011).
. Because the SLS & E Deeds are not in the statutory warranty deed form, and, therefore, the presumption in favor of a fee does not apply, the tension between the two presumptions discussed in Kershaw, particularly in the dissent, one in favor of a fee and one in favor of an easement, does not arise with respect tо the SLS & E Deeds.
. It is not apparent whether the phrase "right of way” was used in the habendum clauses in Swan, Veach or Roeder. See generally Swan v. O’Leary,
. Following Kershaw, the State of Washington Court of Appeals considered whether, in a statutory warranty deed, a presumption in favor of a fee simple interest could be overcome in Washington State Grange v. Brandt,
. As noted above, previously, this court requested further guidance from the State of Washington Supreme Court regarding the application of the factors identified in Brown v. State, given the "subjective, deductive and discretionary judgments” involved in applying the Brown guidelines. See Schroeder v. United States,
. In Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, the court examined a 1960 subsequent conveyance, but the subsequent conveyance was from one of the original grantors, Ora A. Kershaw, which, therefore, could inform the grantor’s intent. See Kershaw Sunny-side Ranches, Inc. v. Yakima Interurban Ass'n,
. The agreement is virtually identical to the agreement entered into between Daniel Reichert and Louis Tahalthkut.
. As noted above, Gerald and Kathryn Ray had originally filed as part of this consolidated lawsuit, but their case was dismissed. See Beres, et al. v. United States,
. In addition to the six virtually indistinguishable SLS & E Deeds, as discussed above, the record contains four additional right of way deeds in the Joint Appendix, distinct from the SLS & E Deeds, which also conveyed a right of way to the SLS & E in May and June of 1887. All four of the additional deeds follow the same format as the SLS & E Deeds and appear to be based on the same pre-printed form.
. The court in Ray v. King County reached its decision despite noting: "While we are mindful of the undisputed evidence that the Hilchkanums could neither read nor write....” Ray v. King Cnty., 86 P.3d at 194.
. The court in Ray v. King County presumably was referring to the "in the presence of B.J. Tallman,” Ray v. King Cnty.,
. After mentioning the Hilchkanums’ subsequent conveyances, the District Court for the Western District of Washington also stated that, "[l]ater conveyances of the property included language ‘excepting’ the Railway right of way from the legal descriptions,” King Cnty. v. Rasmussen,
. Included in the list of these subsequent conveyances is one not in the record before this court, but which also refers to a right of way: "Mary Hilchkanum later conveyed lots 1 and 3 of the homestead property to her husband by quitclaim deed. The conveyance is for 'less three (3) acres right of way of Rail Road.' ” King Cnty. v. Rasmussen,
. Both the District Court for the Western District of Washington and the Ninth Circuit do not always specifically identify which subsequent conveyance they are referring to, making it challenging to determine which subsequent conveyances each court addressed.
. This first "[sic]” is included in the Joint Stipulation of Issues and Facts copy of the deed provided to the court.
. The current version of the statutory quit claim deed is found at Wash. Rev.Code Ann. § 64.04.050(2011).