Kershaw Sunnyside v. Yakima Interurban

• Decision Date: 12 January 2006
• Docket Number: No. 75982-1.,75982-1.
• Parties: KERSHAW SUNNYSIDE RANCHES, INC., a Washington corporation, Petitioner, v. YAKIMA INTERURBAN LINES ASSOCIATION, a Washington non-profit corporation; BNSF Acquisition, Inc., a Delaware corporation; the State of Washington, Defendants, Level 3 Communications, LLC, a Delaware limited liability company, Respondent, and The Burlington Northern and Santa Fe Railway Company, a Delaware company, Defendant.
• Court: Washington Supreme Court

Page 16

126 P.3d 16

156 Wn.2d 253

KERSHAW SUNNYSIDE RANCHES, INC., a Washington corporation, Petitioner, v. YAKIMA INTERURBAN LINES ASSOCIATION, a Washington non-profit corporation; BNSF Acquisition, Inc., a Delaware corporation; the State of Washington, Defendants,

Level 3 Communications, LLC, a Delaware limited liability company, Respondent, and

The Burlington Northern and Santa Fe Railway Company, a Delaware company, Defendant.

No. 75982-1.

Supreme Court of Washington.

January 12, 2006.

Kevan Tino Montoya, Attorney at Law, Yakima, for Petitioner/Appellant.

James Stephan Berg, James S Berg PLLC, Yakima, Mark C. Laughlin, Fraser Stryker Meusey Olson Boyer & Bloc, Omaha, NE, for Appellee/Respondent.

En Banc.

BRIDGE, J.

¶ 1 Level 3 Communications, L.L.C. (Level 3) is a telecommunications company doing business in Washington State. In an effort to expand its infrastructure, Level 3 installed a fiber optic telecommunication cable on a railroad line in Yakima, Washington. At issue here is Level 3's installation of cable on a railroad right of way transpiercing land belonging in fee to Kershaw Sunnyside Ranches, Inc. Level 3 negotiated and received permission from the line operator and right of way holder, Yakima Interurban Lines Association (Yakima Interurban), and the Burlington Northern and Santa Fe Railway Company (BNSF), which had retained contractual rights to an easement for underground cable but did not receive permission from nor grant compensation to Kershaw Sunnyside Ranches for the installation of the cable line. In response, Kershaw Sunnyside Ranches brought suit seeking to quiet title and alleging trespass, conversion, and statutory and constitutional violations for Level 3's placement of the cable.

¶ 2 The superior court, in two summary judgment orders, found (1) that the 1905 right of way deed between the parties' predecessors in interest conveyed an easement interest in the relevant strip of land and not fee simple title and (2) that Level 3's placement of the fiber optic cable within the right of way constituted a trespass. The Court of Appeals affirmed the first determination, that the deed created an easement interest, but reversed the trespass claim, finding that the presence of the cable was a permissible incidental use for which no additional compensation was due to Kershaw Sunnyside Ranches.

¶ 3 We now affirm in part and reverse in part the Court of Appeals decision. First, like the superior court and the Court of Appeals, we hold that the 1905 deed conveyed only an easement interest in the right of way. Second, we hold that Washington statutes governing telecommunications companies require an eminent domain proceeding in this context and thus reverse the Court of Appeals application of the incidental use doctrine and find the presence of the fiber optic cable constitutes a trespass.

I

Facts and Procedural History

¶ 4 On October 5, 1905, Edward A. (E.A.) and Ora A. Kershaw recorded a right of way deed, memorializing,

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. Said strip of land being a certain strip of land seventy five feet wide across [setting forth location and referencing as already "staked out."]

Clerk's Papers (CP) at 654. The habendum clause to the deed provides:

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 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.

CP at 585-87; see also CP 654-55. On June 24, 1914, the North Yakima & Valley Railway Company deeded its interest to the Northern Pacific Railroad, predecessor in interest to BNSF. On February 18, 1999, BNSF and BNSF Acquisition, Inc., by quitclaim deed, conveyed their interest in the rail corridor encompassing the disputed right of way to Yakima Interurban, reserving to itself "an exclusive, permanent easement for construction, reconstruction, maintenance, use and/or operation of one or more longitudinal pipelines for . . . telecommunication or fiber optic communication lines." CP at 589-98.

¶ 5 Level 3 and BNSF then entered into a master right of way agreement whereby BNSF granted Level 3 the right to construct and operate "fiber optic cables on the [railroad right of way] that traverses" the Kershaw Sunnyside Ranches property. CP at 606. On October 22, 1999, Level 3 concluded a construction and restoration agreement with Yakima Interurban, and thereafter installed fiber optic cable approximately 42 inches underground on the railroad right of way.¹ CP at 285, 316, 606, 637.

¶ 6 Over the past century, the Kershaw property has also changed hands but maintained ownership within the family. On January 20, 1960, Ora Kershaw quitclaimed the Kershaw property to her son Ronald E. Kershaw, specifically excepting the "right-of-way of the Northern Pacific Railway," predecessor in interest to BNSF. CP at 731-32. In 1986, Ronald and Betty Kershaw transferred the real property to the family business, Kershaw Sunnyside Ranches. The real estate contract memorializing this transfer, in describing the property conveyed, again excepted from the transfer the "right of way of the Northern Pacific Railway." CP at 726. At the present time, Kershaw Sunnyside Ranches owns approximately 80-90 acres on the site transpierced by the railroad right of way.

¶ 7 On June 15, 2000, Kershaw Sunnyside Ranches filed this action against Level 3, Yakima Interurban, BNSF, and the State seeking to quiet title and alleging trespass, conversion, and violation of RCW 4.24.630 (liability and damages to land and property). On September 28, 2001, Kershaw Sunnyside Ranches amended its complaint to further allege violation of 42 U.S.C. § 1983, chapter 80.36 RCW (telecommunications eminent domain procedure), and article I, section 16 of the Washington Constitution.²

¶ 8 Both parties moved for partial summary judgment, and on August 10, 2001, the superior court entered an order finding (1) that the 1905 deed "transferred only a right of way for a railroad, not a fee simple interest," (2) that Level 3 could use the railroad right of way for its fiber optic cable, but must provide just compensation through an eminent domain process, and (3) that the "rail line has not been abandoned." CP at 158-59. Following Kershaw Sunnyside Ranches' subsequent motion for summary judgment on the issue of trespass, on July 2, 2002, the superior court issued an order that Level 3 "did not have the authority to bury its fiber-optic telecommunications cable in the right of way . . . without paying just compensation" to Kershaw Sunnyside Ranches, that the fiber optic cable "[was] not an incidental use of the railroad" right of way, and therefore Level 3 trespassed on plaintiff's property when it buried the cable. CP at 10. As part of the July 11, 2002 order, the judge additionally found that as to the rulings made in that order and the order of August 10, 2001, "there is no just reason for delay" and "expressly determined that a final judgment, as to both Orders, shall issue from which an immediate appeal may be taken." CP at 10; see CR 54(b).

¶ 9 Both parties filed a notice of appeal with Division Three of the Court of Appeals. In response, the Court of Appeals commissioner ordered the case remanded to the trial court with instructions to enter written findings on the issue of appealability "address[ing] the Schiffman/Lindsay factors³ as set forth in Pepper v. King County, 61 Wash.App. 339, 351-353, 810 P.2d 527 (1991)." CP at 983-84. On remand, the superior court entered an amended order addressing RAP 2.2(d) and the five Schiffman/Lindsay factors as instructed by the commissioner. CP at 972-77.

¶ 10 The Court of Appeals thereafter accepted review and affirmed in part and reversed in part the superior court's rulings. Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass'n, 121 Wash.App. 714, 725, 737, 91 P.3d 104 (2004). The Court of...