Zobrist v. Culp, 47180-1

• Decision Date: 07 May 1981
• Docket Number: No. 47180-1,47180-1
• Parties: Elaine ZOBRIST, individually and as Executrix of the Estate of Fred J. Zobrist, deceased, Petitioner, v. Frank CULP and Jane Doe Culp, his wife; and Cascade Recreation, Inc. a Washington Corporation, Respondents.
• Court: Washington Supreme Court

Page 556

95 Wn.2d 556

627 P.2d 1308

Elaine ZOBRIST, individually and as Executrix of the Estate

of Fred J. Zobrist, deceased, Petitioner, v. Frank CULP and Jane Doe Culp, his wife; and Cascade

Recreation, Inc. a Washington Corporation, Respondents.

No. 47180-1.

Supreme Court of Washington, En Banc.

May 7, 1981.

Sam Peach, Bellingham, for petitioner.

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, for respondents.

ROSELLINI, Justice.

This is a quiet title action brought to establish the petitioner's right to property claimed by the respondents as a railroad right of way. The deed to the respondents' predecessors granted an easement which was limited by the following provision:

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.

A railroad was constructed and operated until a date in 1970, when the then owner of the right of way, Burlington Northern, ceased to run freight or passenger trains on the branch line that crossed the plaintiff's property. The Interstate Commerce Commission approved the abandonment of the line effective July 1, 1971. Until the date of approval, the Commission required Burlington Northern to furnish any requested freight service, and it was ready and willing to do so. However, it received no request for transportation on this line. Thereafter, some of the tracks were dismantled.

The respondents, who are railroad buffs, purchased a portion of the tracks, including those which were laid down on the easement granted by the petitioner. In May 1972, they began the operation of a weekend and summer excursion train.

In the meantime, some activities had occurred on the tracks. Burlington Northern did some maintenance, designed to keep the tracks in repair for salvage operations. The respondent Culp also ran "speeder cars" over the tracks prior to the date of purchase. He did some minor repairs or maintenance, but none on the petitioner's property. No passenger or freight trains passed over the tracks from June 1970 until May 1972, when the respondents' excursion runs began. Work trains (to dismantle and pick up tracks) proceeded along the tracks in November and December 1971.

The trial court granted the petitioner's motion for summary judgment, finding no material issue of fact and holding that the easement had been extinguished pursuant to terms of grant.

The Court of Appeals reviewed that judgment in a per curiam opinion. Zobrist v. Culp, 18 Wash.App. 622, 570 P.2d 147 (1977). It determined that the rights of the parties depended upon the words used in the grant of the easement, rather than upon the common law of abandonment.

The court further recognized that the parties to the grant of easement here had set out "exactly what would amount to abandonment." Zobrist, at 634, 570 P.2d 147.

The opinion of the Court of Appeals, beginning at page 634, 570 P.2d 147, is not free of ambiguity. There is language which might be construed as holding that mere maintenance, standing alone, with or without the running of trains, amounts to "operating a railroad". However, when read as a whole, we think it can fairly be said to have held only that the granting of summary judgment was premature, inasmuch as the question whether trains had operated upon the track had not been resolved. The court said that, while the railroaders did not rebut specifically the contention that no trains were run over the right of way, they did present evidence that the line and stations along it had been maintained throughout the period in question. If so, the opinion suggests, an inference could be drawn that the tracks, being operable, were used.

The cause was remanded for resolution of the factual issue "whether the railroaders or their predecessor ... (had) ceased or failed to use the track across the property in question for railroad purposes during the June 5, 1970, to November 23, 1971, period". The use of the term "railroad purposes" was erroneous. As the court had expressly pointed out earlier in the opinion, the deed did not use that term but rather used the expression "for the purpose of running and operating a railroad over the same". The trial court was justified in construing its duty as that of determining whether the tracks across the plaintiff's property had been used for the purpose of operating a railroad.

Upon remand the case was tried to the court, which found that after June 5, 1970, there was no further train traffic from Bellingham to Wickersham (the points between which the line had operated). The court found that after September 23, 1970, the Burlington Northern had no further operational use for the Bellingham-Wickersham line, but did plan to sell a portion of the line, in place, to the respondents. That sale was consummated on January 25, 1972. Prior to and subsequent to that acquisition, the respondents performed some inconsequential maintenance on the line, but none upon or in the vicinity of the petitioner's property. Burlington Northern speeder car "inspections" continued until February 1, 1971, but no maintenance was done by that company. From February 1, 1971 until November 23, 1971, a slide blocked the line at Mile Post 13 (west of the petitioner's property). That slide was removed by Burlington Northern in order to enable a work train to remove rails. That train came from Bellingham and did not proceed as far east as the petitioner's property.

Based upon these findings, the Superior Court concluded that no railroad was run or operated upon the petitioner's property for more than a year; that inspections and salvage operations conducted by the Burlington Northern did not constitute "running and operating a railroad," and that the respondents did not conduct any activities upon the petitioner's land which constituted the running and operation of a railroad for a period of more than 12 months.

Again it held that the grant of the easement had terminated by the express terms of the deed.

Upon a second appeal, the Court of Appeals again reversed the Superior Court (Zobrist v. Culp, 26 Wash.App. 86, 611 P.2d 1330 (1980)), this time holding that both the speeder car inspections conducted by Burlington Northern and inspections made by the respondents prior to and after their purchase of the tracks amounted to "use (of) the right of way ... for the purpose of running and operating a railroad." Zobrist, at 90, 611 P.2d 1330. In reaching that decision, the court stressed that inspection and maintenance are "railroad purposes". It found insignificant the fact that no railroad operation was begun by the respondents until June 1972.

In so holding, the court effected a substantial revision in the instrument, treating it as thought it had required the railroad company to hold and maintain the tracks, rather than to use them.

In construing the grant of a right of way, it is the court's duty to endeavor to arrive at and enforce the intention of the parties. Missouri-Kansas-Texas R.R. v. Freer, 321 S.W.2d 731 (Mo.App.1958); 74 C.J.S. Railroads § 81 (1951); 2 American law of Property § 8.64 (A.J. Casner ed. 1952); 3 R....