Veach v. Culp
| Decision Date | 09 October 1978 |
| Docket Number | No. 5333-I,5333-I |
| Citation | 585 P.2d 818,21 Wn.App. 454 |
| Parties | Richard VEACH and Mary P. Veach, his wife, and Forrest P. Solem, Appellants, v. Frank CULP and Jane Doe Culp, his wife, Cascade Recreation, Inc., a Washington Corporation, and James Van Noy d/b/a Bonny Fence Company, Respondents. |
| Court | Washington Court of Appeals |
Sam Peach, Bellingham, for appellants.
Lycette, Diamond & Sylvester, Lyle L. Iverson, Shidler, McBroom, Gates & Baldwin, James R. Irwin, Seattle, for respondents.
Richard Veach, Mary P. Veach and Forrest Solem appeal from a judgment dismissing with prejudice their complaint by which they sought the removal of a chain link fence from a right-of-way occupied by the Lake Whatcom Railway Company.
In 1975, the Veaches and Solem purchased as tenants in common the following:
The West 160 feet of Government Lot 7 and the South 5 acres of Government Lot 6, Section 22, Township 37 North, Range 4 East of W.M, EXCEPT the railroad right-of-way, LESS roads, situate in Whatcom County, Washington. SUBJECT to easement for road purposes, as contained in deed dated December 15, 1961, recorded December 19, 1961, in Volume 468 of Deeds, Page 550, under Whatcom County Auditor's file number 922378.
Exhibit 19. The fence of which they complain lies both on the right-of-way and on an adjoining strip of land acquired by the railroad's predecessor in interest. The right-of-way was purchased in 1901 from the original grantors of the Veaches' property, Fred and Mattie Zobrist. The Zobrist deed provides:
Fred Zobrist et ux. To Bellingham Bay & Eastern R.R. Co. Quitclaim Deed. This Indenture, made this ___ day of June in the year of our Lord, one thousand, nine hundred and one, between Fred Zobrist and Mattie A. Zobrist of Acme, Wash., husband and wife, parties of the first part, and Bellingham Bay & Eastern R.R. Co. of a corporation of the State of Washington, party of the second part. Witnesseth, that the said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars, lawful money of the United States to them in hand paid, the receipt whereof is hereby acknowledged, 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, State of Washington, particularly bounded and described as follows, to-wit:
A right-of-way one hundred feet wide, being fifty (50) feet on each side of the center line of the B.B. & Eastern R.R. as now located through that portion of Lot Six (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.
Together with the tenements, hereditaments 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, the said premises, together with the appurtenances unto the said party of the second part, and to its assigns forever.
Exhibit 3. In 1931, the fee in the adjoining strip of land was purchased from Joseph and Minnie Byron. The Veaches' property includes several acres north of the Zobrist and Byron tracts and a small strip of land between the southerly boundary of the right-of-way and the shore of Lake Whatcom. A portion of the right-of-way also abuts on the lake.
The Lake Whatcom Railway Company (the present name of Cascade Recreation, Inc.) and Frank Culp, its president, claim an estate in fee in the right-of-way and an absolute right to erect and maintain a fence to prevent trespassing. The Veaches contend that they own the fee and that the railroad has a mere easement. They argue additionally that the fence unlawfully restricts enjoyment of their riparian rights and access to their waterfront property.
The Supreme Court stated in Morsbach v. Thurston County, 152 Wash. 562, 568, 278 P. 686, 688 (1929):
Courts generally recognize that the words "right of way" have a twofold meaning. They are sometimes used to describe a mere right of passage over a tract, and sometimes to describe the strip of land which railroad companies purchase, or otherwise compulsorily acquire, upon which to construct their railroad. Joy v. St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843; New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407; Maysville & B. S. R. Co. v. Ball, 108 Ky. 241, 56 S.W. 188; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208, 6 Ann.Cas. 239.
Whether the Zobrists conveyed an easement only (a right to use the land for the purpose of operating a railroad) or the fee in the land depends upon the intent of the parties to the deed. Scott v. Wallitner, 49 Wash.2d 161, 299 P.2d 204 (1956).
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...
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Kim v. Kyung-Rak Kim
... ... In their statement of additional authorities, Restaurant Kims cite our decision in Veach v. Culp , 21 Wn. App. 454, 458-59, 585 P.2d 818 (1978). There, we determined that a deed establishing a railroad right of way across another ... ...
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Lake Whatcom Ry. Co. v. Alar
... ... Lake Whatcom Railway also asserts that we have discretion under RAP 2.5(c)(2) to revisit our Supreme Court's decision in Veach v. Culp , 2 which held that the 1901 deed conveyed an easement interest in a railroad right-of-way. Because we disagree with the trial court's ... ...
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