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Railroad Right-of-Way
Opinions Thru Brown

What is the Meaning of the Words "Right-of-Way"
in a Railroad Deed?

by John Rasmussen

Please read a disclaimer for the statements I make on this website accusing judges, politicians and activists of criminal actions.



Introduction:

    "Magic Words"

         In Brown v. State of Washington (1996), the judges of the Washington State Supreme Court struggled to decide if the 1906-1910 deeds to the Milwaukee Railroad granted fee simple ownership of the land, or if they granted easements. The court looked for "magic words" in the granting or habendum clauses when they construed the meaning of the deeds. Not finding these "magic words", the Brown court found that all the deeds conveyed fee simple title to the Milwaukee Railroad.

         So, what "magic words" have such a profound effect in the construing of railroad right-of-way deeds? The Brown court judges were looking for the magic words "right-of-way". Traditionally, the granting clause and the habendum define what is conveyed in a deed. In Washington Territory/State, anytime a "right-of-way" has been conveyed in the granting clause of a railroad deed, the deed has been construed to grant an easement. Additionally, anytime the habendum clause grants, explains, or qualifies the grant to be for right-of-way purposes, the deed has been construed to grant an easement. This has been the rule for over one hundred years in Washington Territory/State. That is, it was the rule until Federal District Judge Barbara Jacobs Rothstein threw out that common law precedent in her King County v. Rasmussen (2001) decision. After Rothstein's dishonest opinion, the words "right-of-way" are no longer "magic ". Now, what is "magic" is the whim of the judge in forcing her/his predetermined outcome on the construing of a deed. Common law has been replaced with judicial arrogance. Rothstein's dishonest decision was adopted by the Washington State Supreme Court in its denial of appeal in Ray v. King County (2004). There is absolute anarchy in the Federal Ninth Circuit courts and the courts of Washington State.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

    "Who's on first?"

         In modern times, the term "right-of-way" has taken on two very different meanings. The King County prosecutor, and the judges who resolved the lawsuits involving the Hilchkanum right-of-way deed, manipulated common law in their briefs and opinions by intentionally using the wrong meaning in their analysis. Their technique mirrors the famous Abbott and Costello comedy routine "Who's on first?". In that routine, Abbott and Costello intentionally confuse a statement of the last name of the first baseman with the question of which runner is on first base. The intentional misrepresentation of the term "right-of-way" by dishonest lawyers and judges in the Rasmussen and Ray opinions is not a comedy routine. Rather, it's a criminal act designed to cover-up the East Lake Sammamish federal tax fraud scheme. Before I explain how these dishonest lawyers and judges misused the term "right-of-way", I first need to explain how the term "right-of-way" is correctly understood in common law. I'll get back to "Who's on first?", and how the meaning of "right-of-way" was intentionally confused, near the bottom of this document.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      Jump to the "Who's on first?" discussion at the bottom of this document.

Where do we Find the Legal Meaning of the Words "Right-of-Way"?

         The legal meaning of "right-of-way" in a railroad deed can be found in the federal and state common law decisions that have construed the meaning of these words in railroad deeds. These decisions establish the meaning of "right-of-way" in a railroad deed as a legal precedent.

         The legal definition of "right-of-way" can be found in legal dictionaries, such as "Black's Law Dictionary". Also, the definition can be found in scholarly texts by respected legal authors. Since the definition has changed over time, it is important to apply the definition that was understood at the time of the deed.

         These sources for the meaning of the term "right-of-way" in a railroad deed are separately discussed below. There are a number of Washington State common law decisions that establish the precedent. In construing the Hilchkanum right-of-way deed, the subject of this website, these Washington decisions are the most important to consider, and will be discussed first.

The Meaning of the Words "Right-of-Way" in Washington State Common Law:

         Under Washington State common law, the meaning of the words "right-of-way" in a railroad deed is understood from the series of decisions construing that term. These decisions have held a consistent understanding of "right-of-way" for over one hundred years. In Washington State/Territory there has never been a case in which a right-of-way was conveyed in the granting clause of a railroad right-of-way deed and the deed was found to grant anything other than an easement. That is, until Federal District Judge Barbara Jacobs Rothstein threw out that common law precedent in her King County v. Rasmussen (2001) decision. Read the annotated version of Rothstein's King County v. Rasmussen (2001) in order to understand the complete dishonesty of this federal judge.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         Here, in chronological/precedential order, are abbreviated citations that establish the precedent which holds the grant of a "right-of-way" to a railroad is the grant of an easement. Each abbreviated citation is a hyperlink which will take the reader to its location in its respective opinion. For a better understanding, read each complete decision to fully understand this common law precedent. (citations with my emphasis)

      2000: Roeder v. K&E Storage (2000)
        "Because the words "right of way" appeared only in each deed's legal description or in the description of the railroad's obligations, instead of in the granting or habendum clauses, the court concluded that '[u]sed 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.'"

      1996: Brown v. State of Washington (1996)
        "We have given special significance to the words "right of way" in railroad deeds."

        "...we held the deed granted an easement based on the specifically declared purpose that the grant was a right of way for railroad purposes..."

        "...the term "right of way" as a limitation or to specify the purpose of the grant generally creates only 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." ... "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..." "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."

        Dissenting Opinion: "...where the granting clause...declares the purpose...to be a right of way for a railroad, the deed passes an easement only..."

        Dissenting Opinion: "...an easement is not created unless the magic words "right of way" are contained in the 'granting clause.'"

        Dissenting Opinion: "...Morsbach does not narrowly define "granting clause" nor does it require the right of way purpose be expressed in any particular words."

        Dissenting Opinion: "Where the purpose is right of way...it was the intent of the parties to grant...an easement."

        Dissenting Opinion: "...majority...giving "special significance to the words 'right of way' in railroad deeds,"...finding the absence...overpowering in significance."

        Dissenting Opinion: "A grant of a right of way to a railroad company is the grant of an easement merely..."

      1993: Harris v. Ski Park Farms (1993)
        "...when the granting clause...declares the purpose...to be a right of way for a railroad the deed passes an easement only..."

      1990: King County v. Squire (1990)
        "...rights of way granted to a railroad are frequently held to create easements."

        "[W]hen the granting clause of a deed declares the purpose...to be a right of way...the deed passes an easement only..."

        "...construing the deed as a whole, held...instrument conveyed a right of way easement..."

        "...The Squire deed granted a "right-of-way...This suggests an easement was conveyed."

        "...right-of-way...language in the granting clause strongly suggests conveyance of an easement..."

        "...language of the deed which described the conveyance of a right of way indicated an easement had been conveyed."

      1986: Lawson v. State (1986)
        "...where a deed is construed to convey a right of way for railroad purposes only, upon abandonment...the land...reverts...free of the easement...."

      1986: Roeder v. BNSF (1986)
        "Since the granting clause...declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement..."

        "...land being conveyed as "a right-of-way"...has been found to create an easement..."

      1979: Veach v. Culp (1979)
        "The parties...describe what was being conveyed: a right-of-way...Language like this has been found to create an easement..."

        "...language of the deed...describing the conveyance of a right-of-way...we conclude the deed conveyed an easement..."

      1977: Zobrist v. Culp (1977)
        "...when the granting clause...declares the purpose...to be a right of way for a railroad the deed passes an easement only..."

      1956: Scott v. Wallitner (1956)
        "...in none of these transactions was there a grant of a right of way for the purpose of building a railroad..."

      1950: Swan v. O'Leary (1950)
        "...when 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..."

      1929: Morsbach v. Thurston Co. (1929)
        "...we held that the reservation was of a right of way creating nothing more than an easement..."

        "...an instrument reserving and excepting a strip of land...conveyed...for a right of way...only an easement was granted..."

        "...construed as a whole...in the light of the purpose...it was made, was a grant of a right of way or easement..."

        "...grant of the right of way...was intended to convey simply the right of way and easement..."

        "...a conveyance...granting a right of way...will be held to have taken an easement merely..."

        "...granting clause...conveys only a right of way, which is a mere easement..."

        "...Where the granting clause of a deed declares the purpose...to be a right of way for a railroad, the deed passes an easement only, and not a fee..."

        "...Where the granting clause declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement..."

        "...the granting clause"..."described as follows, to wit: The right of way for a railroad"..."conveyed an easement only, and not a fee."

        "...grant involved was of a right of way...across a tract of land"..."held...that...an easement...was granted."

        "In the Uhl case...what meaning...given 'right of way' used in the granting clause of the deed...its effect...to vest...an easement..."

        "...grant of a right of way to a railroad company is the grant of an easement merely..."

      1910: Pacific Iron Works v. Bryant Lumber (1910)
        "The grant of a right of way to a railroad company is the grant of an easement..."

      1905: Abercrombie v. Simmons et al (Supreme Court of Kansas, 1905)
        "...in regard to the right of way...the grant...vests...an easement..."

        "...a deed releasing and quitclaiming to a railroad company a right of way...did not acquire the fee of the land."

        "...the words "right of way" in a grant to a railroad company means an easement..."

      1894: Reichenbach v. Washington Short Line Ry. Co.(1894)
        "The conveyance is one of a mere right of way habendum to the grantee...and show the grant of an easement only..."

      1893: Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)
        The term "right-of-way" means "easement".

The Meaning of the Words "Right-of-Way" in Federal Decisions:

         The United States Supreme Court dealt with the meaning of the term "right-of-way" in its decision Great Northern R. Co. v. U. S., 315 U.S. 262 (1942). This Supreme Court decision looked at the history of laws governing the establishment of railroads in the 1800's. It found that the meaning of "right-of-way", as used in the Right-of-Way Act of March 3, 1875, was an easement, and not a grant of fee simple title. In reading the emphasized text below, one will observe that in the late 1800's Congressmen used the term "right-of-way" as interchangeable with the word "easement".

    Here is that portion of Great Northern R. Co. v. U. S. (with my emphasis):

      "The Act of March 3, 1875, from which petitioner's rights stem, clearly grants only an easement, and not a fee. Section 1 indicates that the right is one of passage since it grants 'the', not a, 'right of way through the public lands of the United States'. Section 2 adds to the conclusion that the right granted is one of use and occupancy only, rather than the land itself, for it declares that any railroad whose right of way passes through a canyon, pass or defile 'shall not prevent any other railroad company from the use and occupancy of said canyon, pass, or defile, for the purposes of its road, in common with the road first located'.1

      Section 4 is especially persuasive. It requires the location of each right of way to be noted on the plats in the local land office, and 'thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way'.2 This reserved right to dispose of the lands subject to the right of way is wholly inconsistent with the grant of a fee. As the court below pointed out, 'Apter words to indicate the intent to convey an easement would be difficult to find' (119 F.2d 825). That this was the precise intent of Section 4 is clear from its legislative history. 3 While Section 4 pro- [315 U.S. 262, 272]   vides a method for securing the benefits of the Act in advance of construction,4 no adequate reason is advanced for believing that it does not illumine the nature of the right granted. The Act is to be interpreted as a harmonious whole.

      The Act is to be liberally construed to carry out its purposes. United States v. Denver, etc., Railway Co., 150 U.S. 1, 14 , 14 S.Ct. 11, 15; Nadeau v. Union Pacific R. Co., 253 U.S. 442 , 40 S.Ct. 570; Great Northern R. Co. v. Steinke, 261 U.S. 119 , 43 S. Ct. 316. But the Act is also subject to the general rule of construction that any ambiguity in a grant is to be resolved favorably to a sovereign grantor-' nothing passes but what is conveyed in clear and explicit language'-Caldwell v. United States, 250 U.S. 14, 20 , 21 S., 39 S.Ct. 397, 398, and cases cited. Cf. Great Northern R. Co. v. Steinke, supra. Plainly there is nothing in the Act which may be characterized as a 'clear and explicit' conveyance of the underlying oil and minerals. The Act was designed to permit the construction of railroads through the public lands and thus enhance their value and hasten their settlement. The achievement of that purpose does not compel a construction of the right of way grant as conveying a fee title to the land and the underlying minerals; a railroad may be operated though its right of way be but an easement. 5   [315 U.S. 262, 273]   But we are not limited to the lifeless words of the statute and formalistic canons of construction in our search for the intent of Congress. The Act was the product of a period, and, 'courts, in construing a statute, may with propriety recur to the history of the times when it was passed'. United States v. Union Pacific R. Co., 91 U.S. 72 , 79. And see Winona & St. Peter R. Co. v. Barney, 113 U.S. 618, 625 , 5 S.Ct. 606, 609; Smith v. Townsend, 148 U.S. 490, 494 , 13 S. Ct. 634, 635; United States v. Denver, etc., Railway Co., 150 U.S. 1, 14 , 14 S.Ct. 11, 15.

      Beginning in 1850 Congress embarked on a policy of subsidizing railroad construction by lavish grants from the public domain. 6 This policy incurred great public disfavor7 which was crystallized in the following resolution adopted by the House of Representatives on March 11, 1872:

        'Resolved, that in the judgment of this House the policy of granting subsidies in public lands to railroads and [315 U.S. 262, 274]   other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.' Cong.Globe, 42d Cong., 2d Sess., 1585 (1872).

      After 1871 outright grants of public lands to private railroad companies seem to have been discontinued. 8 But, to encourage development of the Western vastnesses, Congress had to grant rights to lay track across the public domain, rights which could not be secured against the sovereign by eminent domain proceedings or adverse user. For a time special acts were passed granting to designated railroads simply 'the right of way' through the public lands of the United States. 9 That those acts were not intended to convey and land is inferable from remarks in Congress by those sponsoring the measures. For example, in reporting a bill granting a right of way to the Dakota Grand Trunk Railway (17 Stat. 202), the committee chairman said: 'This is merely a grant of the right of way'.10 Likewise, in reporting a right of way bill for the New Mexico and Gulf Railway Company (17 Stat. 343), Mr. Townsend of Pennsylvania, the same Congressman who sponsored the Act of 1875, observed: 'It is nothing but a grant of the right of way.' 11   [315 U.S. 262, 275]   The burden of this special legislation moved Congress to adopt the general right of way statute now before this Court. Since it was a product of the sharp change in Congressional policy with respect to railroad grants after 1871, it is improbable that Congress intended by it to grant more than a right of passage, let alone mineral riches. The presence in the Act of Section 4, which, as has been pointed out above, is so inconsistent with the grant of a fee, strongly indicates that Congress was carrying into effect its changed policy regarding railroad grants. 12  

      Also pertinent to the construction of the Act is the contemporaneous administrative interpretation placed on it by those charged with its execution. Cf. United States v. Johnston, 124 U.S. 236, 253 , 8 S.Ct. 446, 454; United States v. Moore, 95 U.S. 760 , 763; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 , 53 S. Ct. 350, 358. The first such interpretation, the general right of way circular of January 13, 1888, was that the Act granted an easement, not a fee. 13 The same position was taken in the regulations of March 21, 1892, 14 L.D. 338, and those of November 4, 1898, 27 L.D. 663. While the first of these circulars followed the Act by 13 years, the weight to be accorded them is not dependent on strict contemporaneity. Cf. Swendig v. Washington Water Power Co., 265 U.S. 322 , 44 S.Ct. 496. This early administrative gloss received indirect Congressional approval when Congress repeated the language of the Act in granting canal and reservoir companies rights of way by the Act of March 3, 1891, c. 561, 26 Stat. [315 U.S. 262, 276]   1101, 43 U.S.C.A. 946, and when Congress made the Act of 1875 partially applicable to the Colville Indian Reservation by Act of March 6, 1896, c. 42, 29 Stat. 44. Cf. National Lead Co. v. United States, 252 U.S. 140, 146 , 40 S.Ct. 237, 239.

      The circular of February 11, 1904, 32 L.D. 481, described the right as a 'base or qualified fee'. This shift in interpretation was probably due to the description in Northern Pacific R. Co. v. Townsend, 190 U.S. 267 , 23 S.Ct. 671, 672, of a right of way conveyed in a land-grant act (13 Stat. 365) as a 'limited fee, made on an implied condition of reverter'.14 But the earlier view was reasserted in the departmental regulations of May 21, 1909, 37 L.D. 787.15 After 1915 administrative construction bowed to the case of Rio Grande Western R. Co. v. Stringham, 239 U.S. 44 , 36 S.Ct. 5, which applied the language of the Townsend case to a right of way acquired under the Act of 1875. We do not regard this subsequent interpretation as binding on the Department of the Interior since it was impelled by what we regard as inaccurate statements in the Stringham case. Cf. Helvering v. Hallock, 309 U.S. 106, 121 , 60 S.Ct. 444, 452, 125 A.L.R. 1368

      Congress itself in later legislation has interpreted the Act of 1875 as conveying but an easement. The Act of June 26, 1906, c. 3550, 34 Stat. 482, 43 U.S.C.A. 940 declaring a forfeiture of unused rights of way, provides in part that: 'the United States hereby resumes the full title to the lands covered thereby (by the right of way) freed and discharged from such easement'. This language is repeated in the forfeiture act of February 25, 1909, c. 191, 35 Stat. 647, 43 U.S.C.A. 940. Also on June 26, 1906, an act16 was passed confirming the rights of way which certain railroads had acquired under [315 U.S. 262, 277]   the 1875 Act in the Territories of Oklahoma and Arizona. The House committee report on this bill said: 'The right as originally conferred and as proposed to be protected by this bill simply grants an easement or use for railroad purposes. Under the present law whenever the railroad passes through a tract of public land the entire tract is patented to the settler or entryman, subject only to this easement'.17 It is settled that 'subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject.' Tiger v. Western Investment Co., 221 U.S. 286, 309 , 31 S.Ct. 578, 583, 584. See also Cope v. Cope, 137 U.S. 682 , 11 S.Ct. 222; United States v. Freeman, 3 How. 556. These statutes were approximately contemporaneous with petitioner's acquisition of the rights of way of the St. Paul, Minneapolis and Manitoba Railway.

      That petitioner has only an easement in its rights of way acquired under the Act of 1875 is therefore clear from the language of the Act, its legislative history, its early administrative interpretation and the construction placed upon it by Congress in subsequent enactments."
      Great Northern R. Co. v. U. S., 315 U.S. 262 (1942)

         This U.S. Supreme Court decision differentiated between the earlier land grant law, which granted land to the railroads, and the later right-of-way laws that granted only easements. The Court found that the term "right-of-way" was understood to mean an easement.

      Read the complete decision: Great Northern R. Co. v. U. S., 315 U.S. 262 (1942)

The Legal Definition of Right-of-Way:

         To understand the meaning of the words "right-of-way", one needs to go back in time to the origin of the term. The grant of a right-of-way was originally the grant of a "right" of passage. A right of passage over land is an easement. Later, the strip of land that railroads used for their operation also became to be called the "right-of-way". So, over time, the term took on two different meanings. This can be seen by comparing the definition of "right-of-way" in Black's Law Dictionary in 1891 to the definition in 1979.

      The First Edition of Black's Law Dictionary was published in 1891. It provided this definition of "right of way":

        "RIGHT OF WAY. The right of passage or of a way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another."

        " 'Right of way,' in its strict meaning, is the right of passage over another man's ground; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee simple of lands to be used for a railway or any other kind of way." (Black's Law Dictionary, p.1046, 1891).

      In the 1979 Fifth Edition of Black's Law Dictionary, the definition of "right-of-way" had changed to accommodate the change of meaning over time. This is the 1979 definition:

        "Right of Way. Term 'right of way' sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and, when so used, the term refers to the land itself, not the right of passage over it. Bouche v. Wagner, 206 Or. 621, 293 P.2d 203, 209.

        As used with reference to right to pass over another's land, it is only an easement: and grantee acquires only right to a reasonable and usual enjoyment thereof with owner of soil retaining rights and benefits of ownership consistent with the easement. Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 177 N.W.2d 786, 789." (Black's Law Dictionary, p.1191, 1979)

         Comparing the 1891 and 1979 Black's definitions, one can see the dramatic change in meaning of "right-of-way". In King County v. Rasmussen (2001), one could argue that Judge Rothstein applied the 1979 definition of "right-of-way" to a deed that was written 1887. In 1891, a railroad "right-of-way" had only one legal understanding: an easement. Yet Judge Rothstein found that the words "right-of-way" in the 1887 Hilchkanum right-of-way granting clause meant fee simple ownership of the land. How could Judge Rothstein decide that Hilchkanum intended the words "right-of-way" to have a meaning that did not evolve until many years later? I believe that Judge Rothstein did this because she wanted to assign a false understanding of the Hilchkanum's intentions in order to protect the folks that committed the East Lake Sammamish federal tax fraud scheme.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

"Who's on first?" The Hilchkanum lawyers and judges rip-off Abbott and Costello.

         At the top of this document, I equated the intentional misuse of the term "right-of-way" by the King County Prosecutor and the Rasmussen and Ray judges to the famous Abbott and Costello comedy routine, "Who's on first?" The comedy routine plays on the two different meanings of the word "who". Bud Abbott uses the word "who" referring to the last name of the first baseman. Lou Costello uses the word "who" to ask the name of the base runner on first base. Neither understands the other's intended meaning for the word.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         The King County Prosecutor and the Hilchkanum judges use the same technique to intentionally confuse the meaning of the term "right-of-way" in their common law citations. In this case, it's not funny. It's criminal. "Right-of-way" can have two very different meanings in a railroad deed, as shown in the citation below. The meaning of the term "right-of-way" in a railroad deed is understood by where and how it is used in the deed. Further, since the meaning of the term has changed over time, the term "right-of-way" must be construed in the same way it was understood by the parties at the time of the deed.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

    Where and how "right-of-way" is used:

         The Washington State common law citations, which I provided above, show that the mere use of the term "right-of-way" in a railroad deed is not enough to resolve the easement or fee issue. The determination of whether a railroad right-of-way deed conveys an easement or fee simple interest is made by understanding where and how the term is used in the deed. Since Brown v. State of Washington (1996) was the latest railroad right-of-way opinion by the Washington State Supreme Court at the time of the Hilchkanum opinions, the following citation from Brown should have had great weight. This citation explains the where and how factor in construing railroad deeds. (citation with my emphasis)

      "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."
      [Brown v. State of Washington (1996)]

         The judges who issued the Rasmussen and Ray opinions refused to apply this citation from Brown and instead adopted Norm Maleng's "legal theory", the dishonest legal argument concocted by the King County Prosecutor to hide his participation in the East Lake Sammamish federal tax fraud scheme. Norm Maleng's "legal theory" intentionally confused the precedential meaning of the term "right-of-way" by mis-citing Brown. The Prosecutor claimed that the term "right-of-way", when found in the granting or habendum clauses, means a "strip of land" unless specific limiting language is included. One can see that this "legal theory" is contradicted by the above citation from Brown. In legal briefs and a white paper, the King County Prosecutor claimed that Brown established a new "bright line rule" and a "sea change" in the way railroad right-of-way deeds are construed. The Prosecutor claimed that one hundred years of consistently applied legal precedent was thrown out in the Brown opinion. Of course, this was a ridiculous, self-serving lie.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         In common law, when the term "right-of-way" is used in the granting clause or habendum of a railroad deed to describe the interest conveyed, the deed has always been found to grant an easement. When the term "right-of-way" is used in the legal description of the property, or other portions of the deed where it is not used to specify the interest conveyed, it does not limit the grant to an easement. There is a "gray area" to these rules. In Morsbach v. Thurston Co. (1929) the granting clause refers to the legal description to explain what is granted. In that case the deed was found to be an easement in spite of the fact that the term "right-of-way" was in the legal description. For more than one hundred years, where and how the term "right-of-way was used in a railroad deed determined the easement or fee issue. That all changed with the opinions which covered-up the East Lake Sammamish federal tax fraud scheme.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

    Criminal Acts from the Bench!

         One hundred years of consistently held railroad right-of-way precedent was thrown out with the dishonest King County v. Rasmussen and Ray v. King County opinions. These opinions are dishonest acts by federal and state judges, who adopted Norm Maleng's "legal theory" in order to cover-up the East Lake Sammamish federal tax fraud scheme and protect the active participants from prosecution. Since each of the opinions intentionally denied the constitutional right of due process by illegally imposing summary judgment and each mangled Washington common law, these decisions must be seen as criminal acts form the bench. The most cowardly act of all was the denial of the Ray's appeal by the Washington State Supreme Court. The judges of the WSSC didn't have the character to issue an opinion which certified the destruction of property rights found in the published opinions. Instead they quietly denied appeal and let the dishonest Ray v. King County (2004) stand.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      View my March 31, 2009 public letter to the Judges of the Washington State Supreme Court.

    The term "right-of-way" must be understood in the context of the historical period in which it was used.

         In 1887, at the time of the execution of the Hilchkanum right-of-way deed, the terms "right-of-way" and "easement" were essentially interchangeable. This is seen in the citations I presented above. It may also be seen and in a comparison of the Black's Law Dictionary definition in 1891 to its definition in 1979, shown above. The following citation shows that the term "right-of-way" was equated to the term "easement" in early Washington State law. (with my emphasis)

      "We think the clause referred to simply reserved a right-of-way over, an easement in, the land conveyed, and that the ownership of the whole tract passed to the respondent by virtue of the deed.
      [Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co. (1893)]

         This same practice of using the term "right-of-way" to mean "easement" is described in Great Northern v. U. S., (1942). (citation with my emphasis)

      "After 1871 outright grants of public lands to private railroad companies seem to have been discontinued. 8 But, to encourage development of the Western vastnesses, Congress had to grant rights to lay track across the public domain, rights which could not be secured against the sovereign by eminent domain proceedings or adverse user. For a time special acts were passed granting to designated railroads simply 'the right of way' through the public lands of the United States. 9 That those acts were not intended to convey [] land is inferable from remarks in Congress by those sponsoring the measures. For example, in reporting a bill granting a right of way to the Dakota Grand Trunk Railway (17 Stat. 202), the committee chairman said: 'This is merely a grant of the right of way'.10 Likewise, in reporting a right of way bill for the New Mexico and Gulf Railway Company (17 Stat. 343), Mr. Townsend of Pennsylvania, the same Congressman who sponsored the Act of 1875, observed: 'It is nothing but a grant of the right of way.' 11   [315 U.S. 262, 275]   The burden of this special legislation moved Congress to adopt the general right of way statute now before this Court. Since it was a product of the sharp change in Congressional policy with respect to railroad grants after 1871, it is improbable that Congress intended by it to grant more than a right of passage, let alone mineral riches. The presence in the Act of Section 4, which, as has been pointed out above, is so inconsistent with the grant of a fee, strongly indicates that Congress was carrying into effect its changed policy regarding railroad grants."
      [Great Northern R. Co. v. U. S., 315 U.S. 262 (1942)]

         A comparison of the legal definition of "right-of-way" in 1891 to the definition in 1979 provides other proof that the meaning has changed over time. Here, again, is the 1891 Black's Law Dictionary definition which shows that the term "right-of-way" meant "easement" in that period. (with my emphasis)

      "RIGHT OF WAY. The right of passage or of a way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another."

      "'Right of way,' in its strict meaning, is the right of passage over another man's ground; and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee simple of lands to be used for a railway or any other kind of way." (Black's Law Dictionary, p.1046, 1891).

         The 1979 version of Black's Law Dictionary showed that the legal meaning of "right-of-way" had evolved to have the two meanings which were identified in the Brown citation above. Here is a portion of the 1979 Black's Law Dictionary definition which shows the evolution of the definition. (with my emphasis)

      "Right of Way. Term 'right of way' sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and, when so used, the term refers to the land itself, not the right of passage over it." (Black's Law Dictionary, 1997).

         It is obscene that the King County v. Rasmussen and Ray v. King County opinions applied the modern definition of the term "right-of-way" to a deed which was written in 1887. The judges failed to explain how the parties to the Hilchkanum right-of-way deed intended to use a meaning for "right-of-way" that would not be understood until many years later. Most troubling, the intentions of a party to a deed is a material fact. In the Hilchkanum lawsuits, the intentions of the parties was a disputed material fact that was required to be resolved by a jury. The federal and state judges who decided these cases refused the Rasmussens (me) and the Rays that legal right.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

Conclusion:

         The legal meaning of the term "right-of-way" in a railroad deed is established from the state and federal decisions which have construed railroad deeds, and from scholarly sources such as legal dictionaries.

         The meaning of the term "right-of-way" has changed over time. At the time of the Hilchkanum right-of-way deed to the Seattle Lake Shore and Eastern Railway in 1887, the grant of a right-of-way had only one understanding. In that time and context, the term "right of way" was understood to mean a right of passage or an easement.

         In Washington State common law, the grant of a "right-of-way" to a railroad has always been held to be the grant of an easement. This precedent was upheld in every recorded opinion until the dishonest decisions: King County v. Rasmussen (2001), King County v. Rasmussen (2002), and Ray v. King County (2004).
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)