Zobrist v. Culp, 4317-I

Citation570 P.2d 147,18 Wn.App. 622
Decision Date12 September 1977
Docket NumberNo. 4317-I,4317-I
PartiesElaine ZOBRIST, Individually and as Executrix of the Estate of Fred J. Zobrist, Deceased, Respondent, v. Frank CULP and Jane Doe Culp, his wife, and Cascade Recreation, Inc., a Washington Corporation, Appellants.
CourtCourt of Appeals of Washington

Page 622

18 Wn.App. 622
570 P.2d 147
Elaine ZOBRIST, Individually and as Executrix of the Estate
of Fred J. Zobrist, Deceased, Respondent,
Frank CULP and Jane Doe Culp, his wife, and Cascade
Recreation, Inc., a Washington Corporation, Appellants.
No. 4317-I.
Court of Appeals of Washington, Division 1.
Sept. 12, 1977.
As Corrected Oct. 12, 1977.

Page 624

[570 P.2d 149] Lycette, Diamond & Sylvester, Lyle L. Iversen, Howard E. Richmond, Jr., Seattle, Asmundson, Rhea & Atwood, David E. Rhea, Bellingham, for appellants.

Sam Peach, Bellingham, for respondent.


The defendant-railroaders appeal from a summary judgment quieting title to real property in the plaintiff-landowner. Title was quieted to a portion of the railroad right-of-way of the defendant Cascade Recreation, Inc. (now known as the "Lake Whatcom Railway Company") where it passes through land owned by the plaintiff. The trial court determined that the right-of-way

is an easement, and has ceased because the defendants have failed to meet the conditions of the original grant requiring the running and operation of a railroad (not cease) for a period of more than twelve consecutive months . . .

The landowner originally filed a complaint in March 1974 in which it was alleged that the defendant-railroad caused a fence separating the plaintiff's property from that owned by the defendant to be destroyed. The fence had been constructed by the plaintiff to be a boundary between her property and the Burlington Northern right-of-way and had been there over 40 years. The complaint asked the court to establish the boundary as the line where the fence existed and to quiet title in the plaintiff to all property lying northerly of the fence. Damages of $500 were also sought for destruction of the fence, and additional damages of $5,000 were asked for alleged harassment. Later, the plaintiff filed an amended complaint alleging that Burlington Northern did not operate a railroad across these tracks for over 2 years prior to the defendants taking over the property; that the defendants used said property as a

Page 625

tourist facility instead of running and operating a railroad, and that the defendant tore down the plaintiff's fence.

In 1901, R. J. Watson conveyed a 100-foot right-of-way by warranty deed to Bellingham Bay & Eastern Railroad Company over and across the NW 1/4 sec. 26, T. 37 N., R. 4 E.W.M., in Whatcom County, for $100. The deed provided in part:

Said right of way is hereby granted for the purpose of running and operating a Railroad thereover and the said first party reserves the right to free access to pass and repass and go over and return on the said R.R. built and constructed upon the premises aforesaid to and from the lands on each side thereof, except when trains are being operated thereon. Provided always however that if second party shall at any time cease or fail to use the right of way herein mentioned and described for the purpose of running and operating a railroad over the same for the continuous period of 12 consecutive months then and from thenceforth this instrument and the estate hereby granted shall cease and revert to first party.

Early in 1972, the defendant Cascade Recreation, Inc., acquired from the Burlington Northern Railroad title to approximately 5 miles of its branch line of railroad running from Wickersham to Blue Canyon. The Burlington Northern is the successor to the Northern Pacific Railway Company, which for many years had operated a branch line running from Wickersham to Bellingham. The portion of railroad acquired by Cascade Recreation, Inc., was a part of that branch line. The Burlington Northern obtained approval from the Interstate Commerce Commission for the abandonment of the branch line in 1971, and it actually ended service July 1, 1971. Until that date, the Burlington Northern maintained stations at the following locations along the line now owned by defendant: Mirror Lake, Park, Agate Bay and Larson. Those stations were listed in Burlington Northern's official list of open and prepay stations in effect until July 1, 1971, and under applicable federal law, Burlington Northern was obligated to and did

Page 626

supply [570 P.2d 150] rail service at those stations and over the entire branch line until that date.

After July 1, 1971, Burlington Northern continued to operate over the portion of the line acquired by the defendant as late as February 23, 1972, and there was a timetable in effect showing this area as an operating subdivision until July 11, 1972. The track was maintained at all times and not removed. The records of Burlington Northern show that trains for which train orders were issued operated on November 23 and 24, 1971, and December 2, 3 and 13, 1971.

The chief dispatcher for Burlington Northern stated, after examining the records for 1970 and 1971 over the Wickersham to Bellingham route, that there was a train which used the tracks on June 5, 1970, and then no other trains were run over this route until November 23, 1971. The trains that operated in November and December of 1971 were work trains to pick up the tracks from just north of Park to Bellingham. An adjoining property owner had a fence built across the tracks next to the plaintiff's property from May 1971 to May 1972, so that no trains or maintenance equipment could have used the right-of-way during that time.

The defendant Cascade Recreation, Inc., began operating railroad equipment over the line in May of 1972 and has operated continuously since. As late as March of 1972, Burlington Northern freight cars stood on a siding in Section 26 in the area of plaintiff's property. The defendants now operate trains pulled by a steam locomotive, and passengers ride in regular railroad coaches formerly operated on the Burlington Northern. The operation is for public use and the conveyance of persons and property for hire. On summer weekends trains are run on a regular schedule and at other times when business warrants. The defendants maintain a ticket office at Park, Washington, and service is available from Burlington Northern which can provide direct connection with its existing trackage. The defendants

Page 627

state that their railroad is over 4 miles long and only about 400 feet of it passes through the plaintiff's property.

The plaintiff asserts that the defendant's rail line extends from Wickersham 31/2 miles westerly to Park and then 1/4 mile northerly to Blue Canyon City, and that it deadends at each end and there is no connection with any other railroad. They assert it is a recreational, sightseeing railroad that carries sightseers on summer weekends and no freight, and does not interconnect with anything. They state that the Wickersham station closed in 1958, and there have been no buildings or stations or ticket agents at Park, Mirror Lake, Agate Bay or Larson for over 20 years.

The motion was not argued on a stipulation that the matter could be decided on summary judgment. The record does not support that conclusion. The affidavits do not relate to the circumstances or inducements under which the original deed of property was given to Bellingham Bay & Eastern Railway Company, and there is no showing as to the motives of the parties to that transaction. There is no evidence in the record that the line is now operated as an excursion railroad for sightseeing and entertainment. The defendants assert that the record contains no evidence of the intention of the original grantor, but that historical records show that the Bellingham Bay & Eastern Railroad Company in 1901 was a local logging road not connected with any interstate carrier, and that it was built to serve the Blue Canyon Mine. The defendants state that the historical records also show that the Bellingham Bay & Eastern at the time of the original deed was dead-ended short of Wickersham and connected to a streetcar line at Fairhaven, and that there is no inference from any of the circumstances of the original purchase that the operation of the railroad had to be connected to an interstate carrier. The defendants submit that there is now a permanent connection at Wickersham and that the railroad is used for hauling logs over its tracks for delivery to the Burlington Northern, and that the forfeiture which the plaintiff seeks

Page 628

would ruin the railroad by blocking passage in the middle of the line.

[570 P.2d 151] We will identify the defendant railroad operators as the "railroaders" and the plaintiff landowner as the "landowner" hereafter for ease of identification.


The railroaders assert that (a) the landowner never acquired any property rights in the 100-foot right-of-way conveyed to the railroad, and (b) Watson, the original grantor, conveyed more than a mere easement to the railroad. The basis stated for this argument is that by "excepting" the 100-foot right-of-way from the conveyance to Custer, instead of conveying the land "subject to" the right-of-way, the original grantor, Watson, never conveyed the fee to the land within the railroad right-of-way; and the conveyances to the railroad from Watson and to Custer from Watson specified the exact boundaries of the railroad right-of-way, thereby raising it to a more substantial property right than an easement.

The instruments of conveyance should reflect the intention of the parties. Gold Bar v. Gold Bar Lumber Co., 109 Wash. 391, 393-94, 186 P. 896, 897 (1920), held:

(T)he intent of the parties must primarily be gathered from a fair consideration of the deed, and the language employed therein should be consistent with the terms of the deed, including its scope and subject-matter; that the object, in construing the deed, is to ascertain the intention of the parties, especially that of the grantor; that some meaning should be given to every word, clause, and expression, if it can reasonably be done, and if it is not inconsistent with the general...

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