Swan v. O'Leary, 31359.

Citation37 Wn.2d 533,225 P.2d 199
Decision Date07 December 1950
Docket Number31359.
CourtUnited States State Supreme Court of Washington
PartiesSWAN et ux. v. O'LEARY et al.

O'Leary Meyer & O'Leary, Olympia, for appellants.

Pebbles &amp Kuykendall, Olympia, for respondents.

GRADY, Justice.

This action was instituted by respondents against appellants to quiet title to two strips of land, each fifty feet in width. A decree was entered declaring respondents were the owners of the strips of land free and clear of any claim of appellants.

On April 17, 1909 Minnie L. Swan was the owner of the east half of the northeast quarter, and the southwest quarter of the southeast quarter of section 24, township 18, north of range 3, West W M., in Thurston County, Washington. On that date she executed a deed reading as follows:

'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 remised, 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 extending through the E 1/2 of the NE 1/4 of Section 24, in Township 18, North of Range 3 West W. M. said strip to be located 25 feet on either side of the permanent survey line thereof through said land made by R. L. O'Brien in December 1908 and January 1909 now in the hands of the party of the second part; also a right-of-way of the same width which commences at a point 7 feet West of the Northeast corner of the SW 1/4 of the SE 1/4 of Section, Township & Range aforesaid, and extending in a Southwesterly direction with necessary curves to a point on the South line of said SW 1/4 of SE 1/4 not more than 590 feet from the South West corner of said SW 1/4 of SE 1/4 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'. A printed form was used. The italicized parts were in handwriting. The instrument was acknowledged Before a notary public. The respondent Torance Emery Swan is the successor in interest of Minnie L. Swan. At the time of the execution of the deed the grantee was the owner of timberland situated in a locality known as the Black Hills, and acquired the strips of land in question, together with others, in order that a railroad might be constructed to haul the timber to Mud Bay, an arm of Puget Sound. The railroad was constructed and operated until logging operations ceased. The grantee had transferred his property to the Mud Bay Logging Company. In the early part of 1942 the railroad rails were removed. The two strips of land were conveyed to appellant Dan O'Leary December 28, 1942, and on July 2, 1946, he conveyed the one located in the southwest quarter of the southeast quarter of section 24 to appellant M. D. Musser.

The question at issue between the parties is whether the deed from Minnie L. Swan conveyed to the grantee a fee simple title to either or both of the strips of land, or rights of way or easements to be used for logging railroad purposes. The trial court held that rights of way and easements were conveyed; that when logging operations ceased and the railroad track was removed there was an abandonment thereof, and whatever interest the successors of the original grantee acquired reverted to the respondents.

The parties have cited and analyzed many cases, and have referred us to the annotation in 132 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. The instrument Before us has all of the appearance of having been drawn by a layman, who did not understand the difference between a fee simple title to a strip of land and a right of way or easement over the land of which it was a part. 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 deed 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,...

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26 cases
  • Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass'n
    • United States
    • Washington Court of Appeals
    • May 25, 2004
    ...278 P. 686 (1929) (deed granted "the right-of-way for the construction of said company's railroad in and over..."); Swan [v. O'Leary, 37 Wash.2d 533, 534, 225 P.2d 199 (1950)] (granted property "for the purpose of a Railroad right-of-way..."); Veach [v. Culp, 92 Wash.2d 570, 572, 599 P.2d 5......
  • City of Manhattan Beach v. Superior Court
    • United States
    • California Supreme Court
    • April 25, 1996
    ..."authority" purportedly vindicating each conclusion. We thus agree with the response of the Washington Supreme Court in Swan v. O'Leary, supra, 37 Wash.2d at page 535 : "The parties have cited and analyzed many cases, and have referred us to the annotation in 132 A.L.R. 142. The authorities......
  • Ray v. King County
    • United States
    • Washington Court of Appeals
    • March 15, 2004
    ...562, 564, 278 P. 686 (1929) (deed granted "the right-of-way for the construction of said company's railroad in and over..."); Swan, 37 Wash.2d at 534,225 P.2d 199 (granted property "for the purpose of a Railroad right-of-way ..."); Veach, 92 Wash.2d at 572,599 P.2d 526 (granted "[a] right-o......
  • Lucier v. United States
    • United States
    • U.S. Claims Court
    • June 1, 2018
    ...only, and not a fee with a restricted use, even though the deed is in the usual form to convey a fee title." Swan v. O'Leary, 225 P.2d 199, 201 (Wash. 1950) (en banc); see also Roeder Co. v. Burlington N., Inc., 716 P.2d at 859 (finding a conveyance of a fifty foot wide parcel of land "for ......
  • Request a trial to view additional results
1 books & journal articles
  • Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State
    • United States
    • Seattle University School of Law Seattle University Law Review No. 25-01, September 2001
    • Invalid date
    ...124. Id. (citing Roeder Co. v. Burlington N. Inc., 105 Wash. 2d 567, 571, 716 P.2d 855, 859 (1986); Swan v. O'Leary, 37 Wash. 2d 533, 225 P.2d 199 (1950); Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686 125. Id. 126. Id. 127. 107 Wash. 2d at 451, 730 P.2d at 1312; see ako State v. De......

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