Harris v. Ski Park Farms, Inc.
| Decision Date | 11 February 1993 |
| Docket Number | No. 58600-4,58600-4 |
| Citation | 844 P.2d 1006,120 Wn.2d 727 |
| Court | Washington Supreme Court |
| Parties | Mary E. HARRIS, Petitioner, v. SKI PARK FARMS, INC., Respondent. |
Sampson & Wilson, Inc., P.S., Susan Rae Sampson, Duncan C. Wilson, Renton, for petitioner.
Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Bradley A. Maxa, Donna R. Roper, Stephanie A. Arend, Tacoma, for respondent.
Petitioner Mary E. Harris asks for review of a decision of the Court of Appeals reversing the trial court's summary judgment which quieted title in petitioner to a parcel of property burdened with a railroad right of way. The Court of Appeals remanded to the Superior Court with instructions to enter summary judgment quieting title in Respondent Ski Park Farms, Inc. We granted review and affirm the Court of Appeals.
The single issue before the court in this case is whether the Court of Appeals erred in granting summary judgment in favor of Respondent Ski Park Farms, Inc., and ruling that a statutory warranty deed from its predecessor in title, Winkelman, to Petitioner Harris reserved or excepted a fee interest, and not merely an easement, in the abandoned railroad right of way property.
On July 2, 1864, pursuant to the 1864 Land Grant Act, 1 Northern Pacific Railroad Company (Northern Pacific) acquired ownership to a parcel of land described in the original handwritten conveyance as "the East half of the North East quarter of section twenty-seven (27) of Township nineteen (19) North, range five (5) East of the Willamette Meridian." 2 Petitioner Harris in her brief refers to the property as the "southeast quarter of the northeast quarter of Section 27, Township 19 North, Range 5 E." 3 On August 12, 1876, the Northern Pacific Railroad Company, by deed, conveyed certain property in Pierce County to Samuel Wilkeson, Jr. The [The] East half of the North East quarter of section twenty seven (27) of Township nineteen (19) North, range five (5) East of the Willamette Meridian....
deed included the legal description of the disputed property and contained an exception as follows:
[R]eserving and excepting, however, from the above described premises a strip of land two hundred feet wide, extending through the same on the line of the railroad of the said Northern Pacific Railroad Company or on the line of any of its branches, to be used for a right of way, or for other railroad purposes, in case the line of said railroad or any of its branches has been or shall be located on or over said described pieces or parcels of land and premises, (being part of the same land granted to the party of the first part by the United States of America under and by virtue of the said Act of Congress, approved the second day of July 1864, and included in the aforesaid mortgage,) together with all and singular, the improvements waters, water courses rights, liberties, privileges, herditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents issues and profits thereof and all the estate, rights title interest, profits claim and demand whatsoever, of them the parties of the first and second parts in law equity or otherwise, howsoever of in and to the same and every part thereof.... 4
(Italics ours.)
The trial court in its order granting summary judgment 5 and the Court of Appeals in its opinion 6 use the same legal description used by appellant and substantially the same language of the exception. However, the tax deed relied upon by Petitioner Harris identifies the property as "[t]hat portion of the northeast quarter of the northeast quarter of Section 27 township 19 north range 5 east lying southeasterly of Orting-South Prairie Highway Except railroad right of way Easement of record." 7
Subsequent conveyances of the parcel passed the property from Hiram O. and Ethel E. Sabin to John J. and Opel V. Winkelman on May 10, 1946. 8 The warranty deed contained the following legal description:
[T]he northeast quarter of southeast quarter, and that part of the southeast quarter of northeast quarter of Section Twenty-seven (27), Township Nineteen (19) North, Range Five (5) East of the Willamette Meridian, lying east of the South Prairie Creek:
EXCEPT the right of way of the Northern Pacific Railway Company ... and EXCEPT tracts appropriated by Northern Pacific Railway Company in Cause No. 74807 ... and Pierce County in ... Cause No. 44906. 9
(Italics ours.) Petitioner Harris acquired the property by a tax deed dated December 20, 1983, from the Pierce County Assessor-Treasurer. That deed described the property as: 10
Parcel No. 05-19-27-1-006
That portion of the northeast quarter of the northeast quarter of Section 27 township 19 north range 5 east lying southeasterly of Orting-South Prairie Highway Except railroad right of way Easement of record.
Burlington Northern Railroad Company (Burlington Northern) acquired Northern Pacific's interest in the right of way. 11 On December 7, 1984, the Interstate Commerce Commission authorized Burlington Northern to abandon the right of way. It was abandoned by Burlington Northern on February 15, 1985, 12 pursuant to 43 U.S.C. § 912, which provides:
Whenever public lands of the United States have been ... granted to any railroad company for use as a right of way for At the time of abandonment, Ms. Opel V. Winkelman and the Winkelman Family Trust (Winkelman) held title to the land subject to the right of way. Although Winkelman was not aware that the right of way had been abandoned, pursuant to 43 U.S.C. § 912 title to the right of way vested in Winkelman upon its abandonment.
its railroad ... and use and occupancy of said lands for such purposes has ceased ... by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon, all right, title, interest, and estate of the United States in said lands shall, ... be transferred to and vested in any person ... to whom ... title of the United States may have been ... granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad ... without the necessity of any other or further conveyance or assurance of any kind or nature whatsoever.... 13
On April 23, 1987, Winkelman by real estate contract conveyed 60 acres of the parcel (Lot 6) to Ski Park Farms (Ski Park) for $143,500. 14 On July 24, 1987, Ms. Mary E. Harris (Harris) entered into a purchase and sale agreement with Winkelman for two parcels of the property, one of which was bisected by the right of way. The sale price was $7,000. Ms. Harris prepared the legal description of the property for the purchase and sale agreement, signed by Winkelman, which included the following description: 15
All of that portion of tax parcel # 05-19-27-1-1003 lying between State Route 162 (Pioneer Way) and the South Prairie-Carbon River Road excepting the Northern Pacific Railroad right-of-way easement.
All of that portion of tax parcel # 05-19-26-2-007 lying between the South Prairie Creek and the South Prairie-Carbon River Road excepting the Northern Pacific railroad right-of-way easement.
(Italics ours.)
The sale to Ms. Harris closed on October 29, 1987. The closing documents, including the deed and preliminary title insurance, were reviewed by Ms. Harris and her attorney prior to closing. The statutory warranty deed included the following descriptions:
PARCEL A:
That portion of the West Half of the Northwest quarter of section 26, Township 19, North range 5 East, Willamette Meridian, Pierce County, Washington lying, Southeasterly of South Prairie Creek and Northwesterly of South Prairie-Carbon River County Road, Excepting there from right of way of the Burlington Northern (Formerly Northern Pacific) Railway Company.
PARCEL B:
That portion of the Southeast Quarter of the Northeast Quarter of Section 27, Township 19, North Range 5 East of the Willamette Meridian, Pierce County, Washington, which lies Southeasterly of the Southeasterly margin of State Route 162 (Pioneer Way) and northwesterly of South Prairie-Carbon River County Road, Excepting there from right of way of the Burlington Northern Railway Company. 16
Situate in Pierce County, Washington.
SUBJECT TO Easements, Restrictions, Reservations, Conditions, and Provisions of record.
(Italics ours.)
On February 24, 1988, Winkelman by quitclaim deed conveyed its interest in the right of way to Ski Park, reserving to Winkelman "a 30 foot non-exclusive easement for ingress[,] egress and utilities...." 17 The deed conveyed:
That portion of the Burlington Northern Railroad Company's (formerly Northern Pacific Railway Company) McMillan to Buckley, Washington Branch Line right-of-way, now abandoned, located upon, over and across section 27, Township 19 North Range 5 East, W.M., described as follows:
All that portion of said Railroad Company's 400 foot wide Branch Line right-of-way being 200 feet on each side of said Main Track centerline in the North half of the Southeast quarter of said Section 27, lying Northerly of the West production of the South line of Lot 6 of Survey No. 8701200255, recorded January 2, 1987, and South of the North line of said North half of the Southeast quarter of said Section 27.
Also all that portion of said Railroad Company's 200 foot wide Branch Line right-of-way being 100 feet on each side of said Main Tract centerline in the Southeast quarter of the Northeast quarter of said Section 27, lying North of the south line of said Southeast quarter of the Northeast quarter of said Section 27, and lying South of North line of said Southeast quarter of the Northeast quarter of said Section 27.
Additional Terms and conditions: see schedule A, attached.
....
SCHEDULE A
The sellers herein further RESERVE unto themselves, their heirs, successors and assigns a 30...
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