Brown v. State , 130 Wash. 2d 430 ( 1996 )

Johnson, J.

— This case involves a dispute over title to property formerly used as a railway in Adams, Kittitas and Whitman counties. The dispute is between abutting property owners claiming reversionary interests and the State, which purchased the property from the Chicago, Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee) for a rails to trail project. The property owners claim the property reverted to them when Milwaukee discontinued its rail service because Milwaukee held only right of way easements in the property. The State claims fee simple title based upon the original interest conveyed when Milwaukee acquired the property either by deed or charter from the federal government. We hold the original deeds conveyed fee simple title to Milwaukee, and therefore, the State, based on the facts the deeds are in statutory warranty form, expressly convey fee simple title, and contain no express or clear limitation or qualification otherwise. In addition, we hold the property Milwaukee obtained by charter did not revert to the property owners, based on the fact Congress authorized the sale before abandonment pursuant to 43 U.S.C.A. § 912. We affirm the trial court’s decision in Kittitas County and reverse the trial courts’ decisions in Adams and Whitman counties.

FACTS

Milwaukee acquired most of the property at issue between 1906 and 1910 for the purpose of constructing a railway across eastern Washington, linking Tacoma and Seattle to Idaho and eventually the Missouri River. F. H. Wilson, A Brief Record of the Milwaukee Road (1935). Milwaukee acquired most of the property by 37 deeds and the remaining parcels by charter from the federal government under the General Railroad Right of Way Act of 1875 (the 1875 Act).¹ Most of the deeds at issue in this case are on preprinted forms with blank lines containing handwritten descriptions of the property conveyed. The following deed from Whitman County is typical of most of the deeds at issue in this case. The underlined portions indicate the handwritten sections of the deed.

Warranty Deed

KNOW ALL MEN BY THESE PRESENTS, That Geo. D. Brown and Annie L. Brown his Wife of Spokane County, State of Washington, for and in consideration of Ten & 00/100 Dollars, to them in hand paid, the receipt whereof is hereby acknowledged, do_hereby convey and Warrant unto the CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY OF WASHINGTON, its successors and assigns, a strip of land, one hundred feet in width, extending over and across from the South side to the East side of the following described tract of land situated in the County of Whitman, State of Washington, and described as follows, to-wit: Southeast Quarter 1/4 Section Twenty Three (23) thence to the North side of Section Twenty Four (24) and thence to the Eastside of the Southwest Quarter (1/4) of the Southeast (1/4) of Section Thirteen (13) all being in the Township Nineteen (19) North of Range Forty (40) E. Wm. Except such land owned by the International Land Co. ....

HEREBY CONVEYING a strip, belt or piece of land fifty feet in width on each side of the center line of the Railway of said Company, as now located and established over and across said land. Also conveying the following extra widths for excavations, embankments, depositing waste earth, and borrowing pits, as follows: Two strip[s] of land each fifty (50) feet in width and bordering one on either side of the strip of land first above described and extending from station #576 to the Eastside of the Southwest Quarter. . . . And said Grantors, for the consideration aforesaid, for themselves and for their. heirs, assigns and legal representative, further grant_ to said Company, its successors and assigns, the right to protect any cuts which may he made on said land, by erecting on both sides thereof, and within one hundred and fifty feet from said center line, portable snow fences. . . .

HEREBY GRANTING AND CONVEYING to said Company, its successors and assigns, a fee simple title to said strip of land, together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain.

Clerk’s Papers (Bailey) at 532.

Milwaukee sold the property it acquired under these deeds and charter to the State as part of reorganization proceedings instigated under § 77 of the Bankruptcy Act, 11 U.S.C. § 1174. Milwaukee instigated the proceedings in 1977 following three years of losses totaling $100 million. In re Chicago, Milwaukee, St. Paul & Pac. R.R., 611 F.2d 662, 665 (7th Cir. 1979) (hereinafter cited as CMSP&P), aff’d, 624 F.2d 1105 (7th Cir. 1980).

In response to the reorganization proceedings, Congress passed the Milwaukee Railroad Restructuring Act (Restructuring Act), 45 U.S.C.A. §§ 901-922. The Restructuring Act provided short-term funding and required continuation of service on all lines until a reorganization plan was approved or Congress expressly permitted abandonment. The Restructuring Act also authorized the reorganization court to sell any of Milwaukee’s rail properties as of October 15, 1979. 45 U.S.C.A. § 903(a). By April 1980, no reorganization plan had been put forward, and the reorganization court authorized immediate abandonment but ordered:

the Trustee to fully pursue all possibilities for sale of portions of these lines for continued rail operation or other public use before he disturbs any track or facilities west of Miles City, Montana, or takes any other step which would impede such sales.

Clerk’s Papers (Bailey) at 494.

Unable to sell any portions of the lines for rail purposes, the trustee sought permission to sell Milwaukee’s property in Adams, Kittitas and "Whitman counties to the State of Washington. The reorganization court authorized the sale in December 1981 and shortly thereafter the trustee conveyed the property to the State by quitclaim deed.* ²

Following the sale, the property owners sued the State to quiet title in the property in three separate actions.³ In Kittitas County, the superior court granted the State’s motion for summary judgment, dismissing the action and quieting title in the State. Conversely, in Adams and Whitman counties, the trial courts on summary judgment found full fee title reverted to most of the property owners when Milwaukee discontinued its rail service. As to the charter parcels, which are located in Adams County, the trial court stated: "I think clearly . . . what the railroad gets on charter ... is an easement that will revert when the line is abandoned.” Clerk’s Papers (Harder) at 413. On this issue, the trial court granted summary judgment to the property owners because it found the property reverted to them before the sale to the State.

The State appealed Bailey and Harder, and the property owners appealed Brown. The appeals were consolidated and transferred here pursuant to RAP 4.3.

ANALYSIS

Deed Parcels: Fee or Easement?

Many courts have considered whether a railroad deed conveys fee simple title or an easement. See A.E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973 (1966). The decisions are in considerable disarray and usually turn on a case-by-case examination of each deed. See Roger A. Cunningham et al., The Law of Property § 8.9, at 460 (2d ed. 1993).

In general, when construing a deed, the intent of the parties is of paramount importance and the court’s duty to ascertain and enforce.⁴ Swan v. O’Leary, 37 Wn.2d 533, 535, 225 P.2d 199 (1950); Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d 1308 (1981). In this case, where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed.⁵ See King County v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949) (words in deed must clearly indicate intent to make estate conditional); Wright v. Olsen, 42 Wn.2d 702, 257 P.2d 782 (1953) (absent limiting language, State acquired fee title to land acquired for highway purposes under statutory bargain and sale deed); see also Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855 (1986) (deed in statutory form grants easement where additional language in the deed expressly and clearly limits or qualifies the interest granted); Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526 (1979) (same). Here, with the exception of several deeds discussed later in this opinion, all of the deeds are in statutory warranty form.

In determining whether the property owners have met their burden of showing that the original parties intended to adapt the statutory form to grant easements instead of fees simple, we have relied on the following factors: (1) whether the deed conveyed a strip 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; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal; and (7) whether the conveyance did or did not contain a habendum clause, and many other considerations suggested by the language of the particular deed. Swan, 37 Wn.2d at 535-36. In addition to the language of the deed, we will also look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties. Scott v. Wallitner, 49 Wn.2d 161, 162, 299 P.2d 204 (1956); see also Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 739, 844 P.2d 1006 (1993), cert. denied, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).

We have given special significance to the words "right of way” in railroad deeds. In Roeder, for example, one of the deeds provided, in part, the grantor: "conveys and warrants unto Bellingham and Northern Railway Company ... for all railroad and other right of way purposes, certain tracts and parcels of land . . . .” Roeder, 105 Wn.2d at 569. Recognizing a railroad can hold rights of way in fee simple or as easements, we held the deed granted an easement based on the specifically declared purpose that the grant was a right of way for railroad purposes, and there was no persuasive evidence of intent to the contrary.⁶ Roeder, 105 Wn.2d at 574. We reached the same result in Morsbach v. Thurston County, 152 Wash. 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 Wn.2d at 534 (granted property "/or the purpose of a Railroad right-of-way. . .”); Veach, 92 Wn.2d at 572 (granted "[a] right-of-way one hundred feet wide. . .”). See also Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357, 358, 38 P. 1126 (1894) ("so long as the same shall be used for the operation of a railroad” construed as granting easement); Pacific Iron Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 505, 111 P. 578 (1910) (deed providing "to have and to hold the said premises . . . for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors” grants easement not determinable fee); King County v. Squire Inv. Co., 59 Wn. App. 888, 890, 801 P.2d 1022 (1990) ("grant and convey. . . a right-of-way .... To Have and to Hold ... so long as said land is used as a right-of-way. . .” grants easement), review denied, 116 Wn.2d 1021 (1991).

These cases are consistent with the majority of cases that hold the use of the term "right of way” as a limitation or to specify the purpose of the grant generally creates only an easement. See Harris, 120 Wn.2d at 738; Machado v. Southern Pac. Transp. Co., 233 Cal. App. 3d 347, 284 Cal. Rptr. 560 (1991). Conversely, where there is no language in the deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, the deed will be construed to convey fee simple title. Swan, 37 Wn.2d at 536; 65 Am. Jur. 2d Railroads § 76 (1972); see, e.g., Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 575 N.E.2d 548, 552 (1991).

There is no question Milwaukee acquired the property for railroad purposes under these deeds. Identifying the purpose of the conveyance, however, does not resolve the issue at hand because a railroad can own rights of way in fee simple or as easements. Roeder, 105 Wn.2d at 571; Harris 120 Wn.2d at 738. Rather than identifying the purpose of the conveyances, we must conduct a deed-by-deed analysis to ascertain whether the parties clearly and expressly limited or qualified the interest granted, considering the express language, the form of the instrument, and the surrounding circumstances.

Most of the deeds expressly convey fee simple title to a definite strip of land. The property owners acknowledge the deeds expressly convey fee simple title but argue the eminent domain language in the same sentence limits the conveyance.* **⁷ Their argument rests on the assumption railroads could acquire easements only by eminent domain at the time the deeds were issued. At the time of the conveyances, Washington statutes authorized railroads to appropriate "legal title” to land or any interest necessary for operation of the railway. Rem. & Bal. Code §§ 927, 8740 (1909). In Neitzel v. Spokane Int’l Ry., 65 Wash. 100, 117 P. 864 (1911), this court construed these statutes as authorizing a railroad to acquire only an easement.⁸ The problem with the property owners’ argument is Neitzel was decided after all but one of the conveyances at issue in this case. At that time, the nature of the interest acquired by a railroad under the condemnation statutes was not entirely clear, given this court had held fee simple title could be acquired by cities and other entities under similarly worded condemnation statutes. See, e.g., Seattle Land & Improvement Co. v. City of Seattle, 37 Wash. 274, 79 P. 780 (1905) (City acquired fee simple interest by condemnation). Under these circumstances, what meaning the original parties to the deeds attributed the eminent domain language is not apparent. We do not, however, view the eminent domain language as a limitation because the word "together” implies a grant of additional rights, not a limitation on the interest conveyed.

In addition to the eminent domain language, the property owners argue references to "rights of way” in about half of the deeds indicate the grant of an easement. The words "right of way” can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. Morsbach, 152 Wash. at 568; Harris, 120 Wn.2d at 737. Unlike Swan, Veach, and Roeder, where "right of way” was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way” in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee’s obligations with respect to the property. The Eidal deed, for example, states:

Said Railway Company. . . will permit a telephone wire and an electric light wire to cross its said right-of-way .... Before grading is begun Right of way fences shall be built .... Said Railway Company is to furnish such facilities for conducting water for irrigation and other purposes under its track- and across its Right-of-Way as are reasonable and practicable. . . .

Clerk’s Papers (Brown) at 27. Used in this manner, "right of way” merely describes a strip of land acquired for rail lines; it does not qualify or limit the interest expressly conveyed in the granting and habendum clauses. To point out that the Eidal deed and others describe the property as right of way simply begs the question of what interest Milwaukee acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys.

The property owners also argue the "over and across” language found in the description portion of most of the deeds indicates a grant of something less than fee simple title. While the "over and across” language may be consistent with the grant of an easement, it is equally possible the parties used "over and across” simply to locate the right of way. See, e.g., Machado, 233 Cal. App. 3d at 360; Sowers v. Illinois Cent. Gulf R.R., 152 Ill. App. 3d 163, 503 N.E.2d 1082, 1087 (1987).

The amount of consideration does not indicate that the grantors intended only easements. Most of the deeds recite consideration of $10. The amount of consideration may be a factor to consider, Swan, 37 Wn.2d at 535, but whether the consideration actually paid in these cases represented the value of an easement or fee simple cannot be ascertained from the record.⁹

Finally, the property owners rely heavily on the context in which the deeds were negotiated, speculating the grantors had little choice but to convey their property by deed given the threat of condemnation. In no way, however, did they intend to grant more than Milwaukee could have acquired through eminent domain, which the property owners claim was an easement, again citing Neitzel. Assuming railroads could acquire easements only through eminent domain at this time, the property owners’ interpretation may be reasonable. But equally persuasive is the State’s view that the grantors welcomed the Milwaukee and sold their property absent the threat of condemnation. See Ira A. Nadeau, Railroad Situation in Washington, Wash. Mag., Apr. 1906, at 2 ("The coming of the railroads made the settlement of the greater portion of our state possible”); State Roads Comm’n v. Johnson, 222 Md. 493, 161 A.2d 444, 446 (1960) ("It is an historical fact that the construction of the pioneer B. & O. railroad was a highly favored enterprise . . .”). In any event, we are reluctant to accord the context in which the deeds were negotiated much weight, given the uncertainty as to what a railroad could acquire by eminent domain before Neitzel, and the failure of either party to develop the record on this point.

Weighing the factors outlined in Swan, we conclude construing the deeds to convey fees simple more accurately reflects the intent of the parties, given the form of the deeds and the fact they convey "fee simple title” to definite strips of land given without any limitation or qualification. While the manifest purpose of the deeds is to convey land for railroad lines, railroads have never been prohibited from holding rights of way in fee simple. Morsbach, 152 Wash. at 575. In the absence of language in the deeds expressly and clearly limiting the estate conveyed, the deeds fall squarely within the rule that where there is no language in a deed relating to the purpose of the grant or limiting the estate conveyed, and it conveys a definite strip of land, it will be construed to convey fee simple title. See Swan, 37 Wn.2d at 536.

We previously noted that most of the deeds are identical to the Whitman County deed set forth earlier in this opinion except as to the handwritten legal descriptions. There are, however, several deeds that differ from the Whitman County deed. We hold these deeds convey fee simple title because, unlike Swan, Veach, and Roeder, they convey definite strips of land without any limitation or qualification.

Specifically, several of the deeds are in the form of indentures. Because they convey definite strips of land and nowhere specify that the purpose of the conveyance is for a right of way, we hold they conveyed fee simple title to Milwaukee.

The Simpson deed is captioned "Right of Way Deed.” The deed is in statutory form and coveys a definite strip of land, but does not expressly convey fee title. Because the purpose of the conveyance is not limited, we hold the deed conveyed fee simple title regardless of the caption.

The Baker Loan & Investment Company deed does not expressly convey fee simple title but is in statutory form. Because the conveyance is not limited, and the consideration is substantial ($1,310), we hold the deed conveys fee simple title.

The Northern Pacific Railway Company deed is a bargain and sale deed. A bargain and sale deed is a statutory deed that is deemed to convey fee simple title. Rem. & Ball. Code § 8748 (1909). The McCall deed, captioned "Quit Claim Deed,” is part of this conveyance. It is substantially similar to the Kittitas County deeds. Both deeds convey fee simple title.

The Milwaukee Land Company deed is captioned "Warranty Deed” and is in the form of a bargain and sale deed. Because there is no limiting language, we construe the deed as conveying fee simple title.

Charter Parcels

Next we consider the property owners’ claim that the property Milwaukee acquired by charter under the 1875 Act reverted to them under 43 U.S.C.A. § 912.¹⁰

Under the 1875 Act, railroads acquired less than fee simple estates, leaving the federal government with a reversionary interest. In the 1920’s, Congress partially divested the federal government of its reversionary interest by granting the reversionary interest to the owner of the legal subdivision previously traversed by the right of way. 43 U.S.C.A. § 912; Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028, 1031 (10th Cir. 1994); see also City of Buckley v. Burlington N. R.R. Corp., 106 Wn.2d 581, 723 P.2d 434 (1986). In this case, the property owners claim the reversionary interest as owners of the legal subdivision previously traversed by the railroad.

Whether the reversionary interest vests in the adjoining landowner is governed by 43 U.S.C.A. § 912. State v. Oregon Short Line R.R. Co., 617 F. Supp. 207 (D. Idaho 1985). Section 912 provides in pertinent part:

Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad . . . and use and occupancy of said lands for such purposes has ceased or shall hereafter cease ... by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad . . . except lands within a municipality the title to which, upon forfeiture or abandonment. . . shall vest in such municipality .... Provided, That this section shall not affect conveyances made by any railroad company of portions of its right of way if such conveyance be among those which . . . may . . . before such forfeiture or abandonment be validated and confirmed by any Act of Congress; ....

43 U.S.C.A. § 912 (emphasis added).

The State argues this case hinges on the application of the proviso; if the trustee’s sale of the charter parcels to the State pursuant to the Restructuring Act constituted a conveyance "validated and confirmed by any Act of Congress,” then the State has superior title. The property owners argue the proviso is irrelevant because the sale took place after the reorganization court authorized immediate abandonment on April 2, 1980. We hold the reversionary interest never vested in the adjoining property owners in this case because Congress had expressly authorized Milwaukee to sell the rights of way for nonrailroad purpose, and moreover, a court of competent jurisdiction had never declared abandonment as required by this statute.

The Restructuring Act delegated congressional power to the reorganization court to approve "agreements to sell, to another rail carrier or any other person, all or any portion of its rail properties used in railroad operations as of October 15,1979.” 45 U.S.C.A. § 903; see also In re Chicago, Milwaukee, St. Paul & Pac. R.R., 701 F.2d 604 (7th Cir.) (Restructuring Act transferred authority over sales of Milwaukee’s lines from the Interstate Commerce Commission to the reorganization court), cert. dismissed, 463 U.S. 1233 (1983). Because Congress validated and confirmed the sale of property, the parties agree that the only issue related to § 912 is whether abandonment occurred after Milwaukee sold the property to the State.

In order for reversionary rights to vest under 43 U.S.C.A. § 912, the railroad must (1) cease "use and occupancy” of the rights of way, and (2) abandonment must be "declared or decreed” by a court of competent jurisdiction or a congressional act. Vieux v. East Bay Reg’l Park Dist., 906 F.2d 1330, 1337 (9th Cir.) (citing Oregon Short Line, 617 F. Supp. at 216, 218), cert. denied, 498 U.S. 967 (1990); Barney v. Burlington N. R.R., Inc., 490 N.W.2d 726, 731 (S.D. 1992), cert. denied, 507 U.S. 914 (1993).

The Restructuring Act authorized the reorganization court to "authorize” abandonment of Milwaukee’s lines as of April 1, 1980. 45 U.S.C.A. §§ 904, 915(a). On April 2, the reorganization court found "[t]he best interests of the estate require immediate authorization of this abandonment . . . .” Clerk’s Papers (Bailey) at 492. But, it directed the trustee "to fully pursue all possibilities for sale of portions of these lines for continued rail operation or other public use before he disturbs any tracks or facilities west of Miles City, Montana . . . .” Clerk’s Papers (Bailey) at 494. In its application to sell the property at issue to the State, the trustee stated:

The property to be sold is a portion of the property authorized for abandonment in the Lines West abandonment proceeding covered by Order Nos. 307 and 307-A in April of 1980. Salvage contracts have already been let for the removal of the trackage, which remains in place only in two segments aggregating about 95 miles in length. The Trustee will reserve the right to enter upon the property for the purpose of removing the track materials until December 1, 1982, which is the deadline under the salvage contracts for removal of the track-age.

Clerk’s Papers (Bailey) at 499.

By the time of the sale, then, "use and occupancy” of the rights of way had apparently ceased, and the reorganization court had authorized abandonment conditioned on the trustee making every effort to sell the property to another rail carrier or for public use. However, authorizing conditional abandonment and declaring a railway abandoned are two separate acts. Here, no court of competent jurisdiction has declared or decreed the railways abandoned even though abandonment has been authorized. See Vieux, 906 F.2d at 1337. As a result, the proviso applies. Moreover, "easements” on public lands are granted by Congress and subject to the intentions and specifications of Congress rather than common law. Oregon Short Line, 617 F. Supp. at 212; Barney, 490 N.W.2d at 730. Because Congress authorized the sale of Milwaukee’s rights of way for nonrailroad uses under 43 U.S.C.A. § 912, we hold Congress intended the reversionary interest to vest in the purchaser of the right of way rather than the owner of the abutting property.

CONCLUSION

In these consolidated cases, the deeds conveyed land rather than use , of a right of passage over land. Thus, we hold Milwaukee acquired fees simple in the deed parcels which the State acquired by purchase. Because abandonment has not been declared by a court of competent jurisdiction or a congressional act, no reversionary interests in the charter parcels vested. We affirm the trial court’s order granting summary judgment in Kittitas County and reverse the trial courts in Adams arid Whitman counties and remand with directions to grant summary judgment to the State.

Dolliver, Smith, Guy, Madsen, and Talmadge, JJ., concur.

1 Ch. 152, § 1, 18 Stat. 482 (current version at 43 U.S.C.A. §§ 934-939). The 1875 Act granted "right[s] of way through the public lands of the United States” where rail lines were already located or over which lines would be built in the future. 43 U.S.C.A. § 934.

2 he State paid $1.9 million for Milwaukee’s railways in Adams, Kittitas, Whitman, Spokane, and Grant counties.

3 Bailey v. State, No. 88-2-00205-1 (Whitman County filed Dec. 22, 1988); Brown v. State, No. 88-2-00118-1 (Kittitas County filed May 5, 1988); Harder v. State, No. 88-2-00137-9 (Adams County filed Dec. 16, 1988).

4 Since we are reviewing summary judgments, we apply the same standard as the trial court. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). In this case, where both parties have agreed no material facts are in dispute, the only issue is a question of law. Department of Labor & Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993).

5 Since before statehood, the Legislature has provided that deeds patterned after state statute are deemed to convey fee simple title and carry certain warranties. The territorial Legislature first provided every deed in the following form is deemed to convey fee simple title:

The grantor (here insert the name or names and place of residence,) for and in consideration of (here insert consideration), in hand paid, convey and warrant to (here insert the grantee’s name or names), the following described real estate (here insert description), situated in the county of_, state of Washington.

Dated this_day of_, 18__ ___(Seal)

Laws of 1886, § 3, pp. 177-78. This law was codified at Rem. & Ball. Code § 8747 (1909) and presently as RCW 64.04.030. The statutory form alleviated drafting and interpretation problems manifest under the prior system, especially in cases like this where the parties to the deeds are deceased and the evidence consists solely of the deeds themselves. This form is now universally used and relied upon. 17 William B. Stoebuck, Washington Practice, Real Property § 7.2 (1995).

6 The court quoted Swan, 37 Wn.2d at 537:

[W]hen the granting clause of a deed declares the purpose of the grant to be a right of way for a railroad the deed passes an easement only, and not a fee with a restricted use, even though the deed is in the usual form to convey a fee title. Roeder, 105 Wn.2d at 572.

7 "HEREBY GRANTING AND CONVEYING to said Company, its successors and assigns, a fee simple title to said strip of land together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain.” Clerk’s Papers (Brown) at 39 (emphasis added).

8 Strictly construing the condemnation statute, the court held that fee title would not vest in a condemning corporation unless the statute that authorizes condemnation expressly authorizes the corporation to acquire fee title. Because Rem. & Bal. Code § 927 (1909) referred only to "legal title,” the railroad could only acquire an easement. Neitzel, 65 Wash. at 107. Neitzel followed the generally recognized rule that a railroad could not hold fee simple title to land acquired by eminent domain absent specific statutory authority. 1 Philip Nichols, The Law of Eminent Domain § 192 (2d ed. 1917); 26 Am. Jur. 2d Eminent Domain § 137 (1966).

9 Several of the deeds reserve or except the right of the grantor to make some use of the land conveyed. For example, in the Wold deed, the grantors conveyed "fee simple title to said strip of land except as to rights of owners of [¡Irrigation ditch . . . .” Clerk’s Papers (Brown) at 30. In the Wilson deed, the grantors conveyed fee simple title "except” a mineral reservation. In addition, Milwaukee agrees to maintain farm crossings or other improvements in many of the deeds. The reservation or exception of mineral or irrigation rights is consistent with the conveyance of a fee; it would not have been necessary to reserve such rights had the parties intended an easement because the grantors would have retained use of the land. See Nature Conservancy v. Kolb, 313 Ark. 110, 853 S.W.2d 864 (1993). Similarly, the obligation to construct or maintain farm crossings or irrigation channels is consistent with the conveyance of fee simple title. These provisions secure easements to the grantors across the land conveyed to Milwaukee, and probably would have been unnecessary had Milwaukee only held the rights of way as easements. See Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887, 893 (1962); Battelle v. New York R.R., 211 Mass. 442, 97 N.E. 1004 (1912); cf. Roeder, 105 Wn.2d at 573 (reservation to the grantor of the right to make certain use of the property is consistent with the conveyance of a fee).

10 Because we hold the deeds conveyed fee simple title, we need not reach the State’s standing issue.