Zobrist v. Culp, 6639-1-I

• Decision Date: 05 May 1980
• Docket Number: No. 6639-1-I,6639-1-I
• Citation: 26 Wn.App. 86,611 P.2d 1330
• Parties: Elaine 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.
• Court: Washington Court of Appeals

Page 86

26 Wn.App. 86

611 P.2d 1330

Elaine 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.

No. 6639-1-I.

Court of Appeals of Washington, Division 1.

May 5, 1980.

Reconsideration Denied June 11, 1980.

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

Sam Peach, Bellingham, for respondents.

JAMES, Judge.

This case concerns the ownership of a Whatcom County railroad right-of-way easement.

Plaintiff Elaine Zobrist owns the underlying fee of a portion of the easement here in dispute. The original deed of conveyance in 1901 provided in part that:

Said right of way is hereby granted for the purpose of running and operating a Railroad thereover . . . 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.

(Italics ours.)

Defendant Frank Culp and his corporation, Cascade Recreation, Inc., (now known as the Lake Whatcom Railway Company), operate an excursion railroad on a 4 1/2-mile right-of-way easement they acquired from the Burlington Northern (BN) in 1971-72. The right-of-way was part of a 17-mile BN branch line until its abandonment in 1971.

In 1974, Zobrist filed suit, seeking to quiet title on the basis that the easement had been lost by nonuse. After the trial judge entered summary judgment for Zobrist, this court reversed and remanded for trial. Zobrist v. Culp, 18 Wash.App. 622, 570 P.2d 147 (1977). After trial on remand, the trial judge again entered judgment for Zobrist. We reverse.

The dispositive facts are not in substantial dispute. The affidavits before this court on the prior appeal showed that no regular train operated over the Zobrist property between June 5, 1970 and November 23, 1971. However, we held that the original deed did not require the actual running of a train every 12 months. Remand was only for a determination

on the question of whether the railroaders or their predecessor in interest, Burlington Northern, 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, . . .

Zobrist v. Culp, supra at 640, 570 P.2d at 157. On remand, the testimony established that the train of November 23, 1971 operated on the branch line but did not actually traverse the Zobrist property. The trial judge found that the first train to traverse the Zobrist property after June 5, 1970 was on February 7, 1972. Accordingly, we will examine the period between June 5, 1970 and February 7, 1972 for railroad usage.

After June 5, 1970, BN made regular "speeder car" inspection trips of the branch line, necessarily traversing the Zobrist property, until February 1, 1971, when a landslide blocked the tracks. The trial judge found that no maintenance was performed on the speeder car trips. However, the undisputed testimony also showed the following: Until the February 1, 1971 slide, the branch line was not in need of significant maintenance. BN's maintenance policy on lightly-used lines was not to maintain such track to a high standard until the track was actually to be used. Until the slide, the entire branch line was passable, and at all times the portion of the branch now owned by Culp was passable by trains.

The trial judge concluded "(t)he 'speeder car' inspections . . . do not constitute 'running and operating a railroad.' " Conclusion of law No. 5. We hold that he erred in so concluding.

We previously stated that it was not necessary to run a regular railroad train over the right-of-way to use it for a railroad purpose. We hold that to run and operate a railroad in accordance with the terms of the deed granting a right-of-way easement for railroad purposes and avoid a nonuse stipulation, a railroad must actively pursue some legitimate course of action which directly or indirectly contributes to the safe, economical and efficient operation of its road.

Zobrist v. Culp, supra at 635, 570 P.2d at 154. As a matter of law, speeder car operation was such a legitimate activity. Not only was it a direct use of the track and the right-of-way, but its purpose was inspection and possible minor maintenance. "Keeping its roadbed and tracks in good repair is a duty of the railroad, . . . and directly 'contributes to the safe, economical and efficient operation of its road.' " (Citations omitted.) Zobrist v. Culp, supra at 639, 570 P.2d at 157. It cannot be said that it was "sham...