Daily Development for Wednesday, March 14, 2001

RAILROAD RIGHT OF WAY; DEEDS: A railroad deed may be for a fee simple interest even when it is entitled "right of way deed" and describes the property conveyed as a "right of way" in the property description.

Roeder Co. v. K & E Moving & Storage Co., 100 Wash. App. 1071, 4 P.3d 839 (2000).

Action was filed to quiet title to a piece of land that had been abandoned as a railroad rightofway. The rightofway was created by a 1901 bargain and sale deed for the consideration of $1. There were no living witnesses to testify whether the original parties intended to convey a fee simple interest or an easement. The Superior Court held that the deed was ambiguous on its face and entertained extrinsic evidence and heard testimony from two witnesses who gave their interpretation of the bargain and sale deed. It ultimately held that the subject deed conveyed a fee simple interest and therefore the railroad successors held title.

The deed in question was entitled "Right of Way Deed" and used statutory "bargain and sale deed" language and stated that grantor . . . "in consideration of One (1) dollar in hand paid, Bargains, sells and conveyes unto [grantee] the following described real estate [giving the county and state] to wit:

"A tract of land fifty (50) feet wide [from the center line of the existing railroad bed] . . . The right of way hereby conveyed contains thirtysix one hundreths (.36) of an acre."

The Court in its analysis reviewed the factors set forth in Brown v. State,

130 Wash.2d 530, 924 P.2d 908 (1996). Brown held that if the parties used a statutory form deed and the granting clauses of the deed conveyed definite strips of land, then presumptively the intent was to convey fee simple title unless there is additional language that expressly limited or qualified the property being conveyed. The Court concluded that since the term rightofway described the strip of land to be transferred but did not appear in the granting clause, the deed conveyed a fee simple interest.

In addition, the Court stated that other factors such as the amount of the consideration may be helpful in determining whether or not the parties intended to convey a fee simple interest. But it noted that the statement in the deed of $1 consideration was not dispositive, as it was well known that this language appeared in deeds for which substantial consideration had been paid.

The court cited Brown also for the proposition that extrinsic evidence may be taken to interpret any deed, regardless of whether it is ambiguous on its face. This is because of Washington state's adoption of the "context rule" for contracts. Both the circumstances surrounding the deed and the subsequent conduct of the parties may be taken into account.

The court first concluded that the language on the face of the deed itself was sufficient to satisfy the Brown test, even though the strip of land described was measured by the existing railroad bed, since the description nevertheless identified a specific area of land. It discounted the references to "right of way," since this term could be used to describe either a fee or an easement. Such language conclusively establishes the instrument as an easement only if appears in the granting clause stating the purpose of the grant or in the habendum clause limiting the use to which the property could be put. The appearance of the term in the title to the deed or in the property description did not establish that an easement was intended.

The court then turned to consideration of extrinsic evidence, which it held, confirmed rather than detracted from its conclusion that a fee simple interest in the land was conveyed.

Comment: These disputes are becoming commonplace as railroads contract their activities. Another common dispute is whether the railroad can license other uses of the right of way property. Certainly it can if it owns the fee. There is always an issue of scope when the interest is only an easement.

Many jurisdictions hold that, regardless of the nature of the deed, the interest is an easement when acquired by eminent domain. But in many cases the railroads bargained with the landowners (of course, with the eminent domain right in their back pockets), and a regular deed resulted.

Different jurisdictions may have different approaches, but an important aspect of the holding here is the acknowledgment by the court that the use of the term "right of way" does not necessarily describe an easement interest. A second important holding is the statement of the presumption that use of the statutory warranty or special warranty deed forms creates a presumption that the grant is in fee.

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