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Precedential
Railroad Right-of-Way
Opinions Thru Brown

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

by John Rasmussen

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



Introduction:

Federal District Judge Rothstein misused extrinsic evidence in order to deliver her predetermined decision:

         In order to justify her predetermined outcome to King County v. Rasmussen (2001), Federal District Judge Barbara Rothstein intentionally misrepresented the meaning of the exception language in Hilchkanum's subsequent real estate deeds. Rothstein focused on Hilchkanum's subsequent deeds because honestly construing the meaning of the words in Hilchkanum's right-of-way deed to the Seattle Lake Shore and Eastern Railway (SLS&E) would have forced her to admit that the deed granted only an easement. Rothstein had predetermined to "find" that it was the intention of the parties in the 1887 Hilchkanum right-of-way deed to convey fee simple title. She needed this outcome in order to cover up the East Lake Sammamish federal tax fraud scheme and protect the participants in the crime. So, in her analysis of Hilchkanum's intentions, Rothstein ignored and misrepresented the intrinsic evidence (the Hilchkanum right-of-way deed) and then gave great priority to extrinsic evidence (Hilchkanum's subsequent real estate deeds). Extrinsic evidence is allowed in the construing of a deed, but not in the way Rothstein used it.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

The Hilchkanum "sister" opinions coordinated with Rothstein's:

         Rothstein's dishonest analysis of the exception of a right-of-way in Hilchkanum's subsequent real estate deeds was echoed in the opinion of the Ninth Circuit Appeals Panel. That decision, King County v. Rasmussen (2002), was authored by Senior Circuit Judge Betty Binns Fletcher. Fletcher's dishonest support of Rothstein confirms the fact that the highest priority for many judges is to protect their fellow judges. When the same Hilchkanum right-of-way deed was construed in the Washington State Appeals Court, Judge Ronald Cox dishonestly adopted the King County v. Rasmussen analysis of extrinsic evidence in his Ray v. King County (2004) opinion. The Ninth Circuit (en banc) and the Washington State Supreme Court committed treason by refusing to overturn these three intentional criminal acts from the bench.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

The Hilchkanum judges "cherry-picked" Hilchkanum's subsequent deeds and then mis-analyzed their meaning:

         To justify their conclusion that Hilchkanum intended his 1887 right-of-way deed to grant fee simple title of his right-of-way land, Rothstein, Fletcher and Cox analyzed "cherry-picked" Hilchkanum subsequent real estate deeds, considering only the subsequent deeds which excepted the Hilchkanum right-of-way. Then, they misrepresented the legal meaning of the words in those "cherry-picked" deeds, and refused to admit an analysis of the deeds which did not except the right-of-way proved them wrong. Their dishonest manipulation of this extrinsic evidence is obscene.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

The Hilchkanum judges illegally allowed summary judgment:

         Of course, Judges Rothstein, Fletcher and Cox had no right to determine the intentions of the Hilchkanums in their deeds. The intention of the parties in the Hilchkanum's deeds was a disputed material fact. Disputed facts are resolved before a jury, not by the judge. But in this case, the Hilchkanum judges dishonestly declared there was no disagreement with the material facts and decided the Hilchkanum's intentions by illegally applying summary judgment.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

Outline of this discussion:

         On this page, I'll discuss the following topics. Each topic is presented as a hyperlink. Select the topic to jump to that place in the discussion.

      * The Precedential Meaning of the Exception of a Railroad Right-of-Way in a Deed:

      * What is the Meaning of the Exception of the "Right-of-Way" in Hilchkanum's Subsequent Real Estate Deeds?

      * What is the Importance of the Subsequent Hilchkanum Deeds which the Judges Refused to Consider?

      * Summary:



The Precedential Meaning of the Exception of a Railroad Right-of-Way in a Deed:

         Under Washington State common law, the meaning of the exception of a railroad right-of-way in a deed is understood from the series of decisions construing deeds which contain that language. Here, I present the significant decisions in chronological order. Condensed quotes are provided from each decision. Click on the hyperlink attached to each condensed quote to display the full citation in the context of its whole decision. Read each complete decision to better understand this common law precedent. (condensed citations with my emphasis)

      1893: Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)

        "...whether a particular clause in a deed will be considered an exception or a reservation depends not so much upon the words used as upon the nature of the right or thing excepted or reserved."
        [Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)]

        "An exception is a clause in a deed which withdraws from its operation some part of the thing granted, and which would otherwise have passed to the grantee under the general description. The part excepted is in existence at the time of the grant, and remains in the grantor unaffected by the conveyance."
        [Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)]

        "...frequently the words exception and reservation are used as synonymous, and the term exception will be held to mean reservation whenever it may be necessary to effectuate the intention of the parties to the instrument."
        [Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)]

        "...the clause...simply reserved a right-of-way over, an easement in, the land conveyed..."
        [Biles v. Tacoma, Olympia & Gray's Harbor R.R. Co.(1893)]

      1915: Studebaker v. Beek (1915)

        "...whether a particular clause in a deed will be considered an exception or a reservation depends not so much upon the words used as upon the nature of the right or thing excepted or reserved."
        [Studebaker v. Beek (1915)]

        "An exception is a clause in a deed which withdraws from its operation some part of the thing granted, and which would otherwise have passed to the grantee under the general description. The part excepted is in existence at the time of the grant, and remains in the grantor unaffected by the conveyance."
        [Studebaker v. Beek (1915)]

        "...the use of...'reserving and excepting'...created an ambiguity, that...must be resolved...by the nature of the right or thing reserved or excepted."
        [Studebaker v. Beek (1915)]

        "...the reservation and exception in the deed...should be construed as a reservation of the fee of the right of way...and an exception of the easement in the right of way..."
        [Studebaker v. Beek (1915)]

        "Since the railroad company was in possession of the right of way...the reservation and exception in the Studebaker deed would be meaningless, unless it was intended to reserve...the title to the soil itself, and not merely to except the easement..."
        [Studebaker v. Beek (1915)]

      1956: Scott v. Wallitner (1956)

        "It will be noticed that in none of these transactions was there a grant of a right of way for the purpose of building a railroad thereon."
        [Scott v. Wallitner (1956)]

        "...Ebey Logging Company purchased several tracts of land...built and operated a logging railroad thereon...carved the right of way out of its own lands...deeded the railroad and the right of way thereof to the Canyon Lumber...deeded all other lands to the Eyre Shingle...one set of conveyances conveyed the right of way and the other set conveyed land except the right of way...the intent of the grantors of the right of way was to convey the land and not to convey an easement..."
        [Scott v. Wallitner (1956)]

      1977: Zobrist v. Culp (1977)

        "An exception is the withholding from the operation of the deed of something existent which otherwise the deed would pass to the grantee."
        [Zobrist v. Culp (1977)]

        "The conveyance of a fee simple interest with a clause excepting an easement...conveys to the grantee all the grantor's rights and interests...yet compels the grantee...from acting...inconsistent with the rights of the third party...described in the exception."
        [Zobrist v. Culp (1977)]

        "To except...property from a...deed of conveyance...words of exception must be as definite as those required to convey title..."
        [Zobrist v. Culp (1977)]

        "The grantor here excepted a right-of-way amounting to an easement from the grant..." "...Custer...received a fee interest in the land...restricted only...that he could not use...in a manner inconsistent with the existing rights of the railroad..."
        [Zobrist v. Culp (1977)]

        "Scott v. Wallitner...does not stand for the proposition that Watson, by excepting the right-of-way from the deed to Custer, never conveyed the fee to the land within the right-of-way."
        [Zobrist v. Culp (1977)]

      1991: Harris v. Ski Park Farms (1991)

        "An exception...is a clause that withdraws...some part of the thing granted..." "The ambiguity that must be solved is what Winkelman intended to except..."
        [Harris v. Ski Park Farms (1991)]

        "...the confusion as to the meaning of..."right of way" need not be resolved because...the right of way no longer existed."
        [Harris v. Ski Park Farms (1991)]

        "The deed stated Winkelman's intent to except...the 'right of way of the Burlington Northern..." "...not known to Winkelman, the right of way had been abandoned and Winkelman now owned all interest in the property..." "If the conveyance to Harris was intended to transfer the property where the right of way had existed, the exception language was superfluous."
        [Harris v. Ski Park Farms (1991)]

      1993: Harris v. Ski Park Farms (1993)

        "An easement is...an interest in land." "The term "excepting"...could have been used ...to express...understanding that...Harris was receiving a fee interest...subject to an easement."
        [Harris v. Ski Park Farms (1993)]

        "The deed from Northern Pacific...did not explicitly reserve a fee." "The right of way...could ...a fee interest or...an easement." "The deed description of the right of way...would ordinarily create an easement..."
        [Harris v. Ski Park Farms (1993)]

        "...Court...concluded...Winkelman intended to reserve in fee...property where the right of way once existed." "...conclusion...to...intent was necessary...otherwise...exception language 'superfluous'. However..superfluous only if...intended to except...knowing...easement no longer existed."
        [Harris v. Ski Park Farms (1993)]

What is the Meaning of the Exception of the "Right-of-Way" in Hilchkanum's Subsequent Real Estate Deeds?

         Of the decisions above, Zobrist v. Culp (1977), deals with the exact situation discussed in King County v. Rasmussen and Ray v. King County. Just as the Rasmussen and Ray judges analyzed Hilchkanum's subsequent real estate deeds excepting the right-of-way, the Zobrist court analyzed the effect of the exception of a railroad "right-of-way" in a subsequent real estate deed from Watson to Custer. To justify its finding, Zobrist first provided an understanding of the purpose of an exception in a deed, and then analyzed the effect of the exception of a railroad right-of-way in a subsequent real estate deed.

         To understand the exception of a right-of-way in a subsequent deed, one must first understand the definition of an exception in a deed. Zobrist v. Culp (1977) provided this definition: (with my emphasis)

      "An exception is the withholding from the operation of the deed of something existent which otherwise the deed would pass to the grantee."
      [Zobrist v. Culp (1977)]

         So, this requires an honest judge, or jury, to determine what was "existent" in order to determine what is "excepted". If Hilchkanum granted an easement to the SLS&E with his right-of-way deed, then the exception of that right-of-way in a subsequent deed would simply except an easement. On the other hand, if Hilchkanum granted fee simple title to the SLS&E in his right-of-way deed, then the exception of that right-of-way in a subsequent deed would except fee title to the land under the right-of-way. This exact issue is discussed in Zobrist. (with my emphasis)

      "The conveyance of a fee simple interest with a clause excepting an easement...conveys to the grantee all the grantor's rights and interests...yet compels the grantee...from acting...inconsistent with the rights of the third party...described in the exception."
      [Zobrist v. Culp (1977)]

         The above citation explains that the excepting of an easement in a real estate deed simply identifies the easement to the grantee, and does not alter the easement. So, if Hilchkanum granted an easement to the SLS&E with his right-of-way deed, the exception of that right-of-way in a subsequent real estate identifies the easement, and nothing more. Zobrist made that exact point: (with my emphasis)

      "The grantor here excepted a right-of-way amounting to an easement from the grant. No reference was made in the conveyance to Custer of an exception of the fee to the 100 feet." "...Custer...received a fee interest in the land...restricted only...that he could not use...in a manner inconsistent with the existing rights of the railroad..."
      [Zobrist v. Culp (1977)]

         The Rasmussen and Ray judges dishonestly refused to acknowledge this precedent established in Zobrist v. Culp (1977). Instead, in King County v. Rasmussen (2001), King County v. Rasmussen (2002), and Ray v. King County (2004), the judges determined that the exception of the SLS&E right-of-way in Hilchkanum's subsequent deeds meant the exception of the land under the right-of-way. They provided no legitimate citation to support that conclusion, and ignored the body of Washington common law precedent which proved them wrong. Then, after dishonestly concluding that Hilchkanum excepted the right-of-way land in his subsequent deeds, they used that as "proof" that Hilchkanum had intended to grant fee simple title to the SLS&E with his 1887 right-of-way deed. These crooked judges worked the logic backwards. Instead of looking to Hilchkanum's 1887 right-of-way deed to understand what interest was represented in the subsequent exception of that right-of-way, the judges falsely assumed that the exception of the right-of-way in Hilchkanum's subsequent real estate deeds was the exception of the land under the right of way. Then, the judges used reverse illogic to show that Hilchkanum must have understood he granted fee simple title to the SLS&E in 1887 since he treated that right-of-way as land in his subsequent deeds. As you read the Rasmussen and Ray citations linked below, you will notice that the judges provide no legitimate legal precedent in support of their analysis of Hilchkanum's intentions in these subsequent real estate deeds. Instead, they provide brief citations and then misstate the meaning that is understood when the citation in read in the context of its opinion.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         The following links will take the reader to the portion of each Hilchkanum opinion in which the judges dishonestly analyze the subsequent Hilchkanum real estate deeds.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

      King County v. Rasmussen (2001), read Judge Rothstein's dishonest analysis of exception language, and my rebuttal.

      King County v. Rasmussen (2002), read Judge Fletcher's dishonest analysis of exception language, and my rebuttal.

      Ray v. King County (2004), read Judge Cox' dishonest analysis of exception language, and my rebuttal.

What is the Importance of the Subsequent Hilchkanum Deeds which the Judges Refused to Consider?

         All three judges dishonestly dismissed the subsequent Hilchkanum deeds which did not except the right-of-way. They refused to admit that their perverted analysis would cause the subsequent deeds which failed to except the right-of-way to sell the underlying land a second time. As discussed above, the Rasmussen and Ray judges illogically found that the exception of a right-of-way is the exception of the land under the right-of-way. They used this as false proof that Hilchkanum granted fee simple title of the right-of-way land to the SLS&E in his 1887 deed. When one applies that twisted logic to the subsequent Hilchkanum real estate deeds which did not except the right of way, one is forced to admit that Hilchkanum would have sold his land a second time with those deeds. Hilchkanum would have needed an exception for the land under the right-of-way in all of has subsequent real estate deeds if he had already conveyed that right-of-way land to the SLS&E with his 1887 right-of-way deed. It's "Real Estate 101" that a person cannot sell his land to two different people. But, that's what the Rasmussen and Ray judges established with their dishonest analysis.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         Here is how the Rasmussen and Ray judges should have analyzed the subsequent Hilchkanum real estate deeds. Since some of the subsequent deeds excepted the right-of-way and some did not, the logical conclusion should have been that Hilchkanum understood that he owned the land underlying the right-of-way and was merely recognizing the easement in his subsequent deeds which excepted the right-of-way. This analysis is supported by the precedent in Zobrist v. Culp (1977), discussed in detail above. Since it is not necessary to recognize an easement in the language of a deed, this explains why the right-of-way was excepted in some of Hilchkanum's subsequent deeds and not excepted in others.
        (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         To hide the inconsistency in their logic, each of the Rasmussen and Ray judges dismissed, as irrelevant, the subsequent Hilchkanum deeds which contained no exception language. In her bizarre analysis, Judge Rothstein declared that the exception language would be "superfluous" if it wasn't understood to except the land. For justification, Rothstein referred to the unusual situation in Harris v. Ski Park Farms where the parties excepted a right-of-way without knowing it had already been abandoned. Judge Fletcher declared that the deeds which failed to except the right-of-way did not contribute a "scintilla of evidence" to the analysis. With that dismissive statement, Fletcher simply ignored the deeds which contradicted her argument. Judge Cox declared that Hilchkanum must have understood that he granted the right-of-way land to the Railway because "There is no other reasonable explanation for him to have excluded the right of way from subsequent conveyances." It's too bad that Judge Cox didn't consult with his dissenting judge, William W. Baker, who understood this issue and could have explained away Cox' "confusion". Above, I've provided hyperlinks to the positions in these three the opinions where each judges makes these dishonest statements and provides their dishonest analysis. In my opinion, these three judges knew that that the exception of an easement merely recognizes the easement. They knew that the exception of a right-of-way easement in a subsequent Hilchkanum deed merely recognized the right-of-way easement. Further, they knew that the deeds which did not except the right-of-way were critical to consider. They intentionally dismissed these deeds in order to hide the dishonesty of their analysis. These are crooked judges who predetermined the outcome of their decisions in order to cover-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.)

Summary:

         An exception in a deed withholds some part of what is granted. Therefore, when a right-of-way is excepted in a deed, the issue is the nature of the original right-of-way grant. That issue is resolved by critically examining the original deed granting the right-of-way, not by speculating on the meaning of the term "right-of-way" in the subsequent deeds containing the exception.

         If the original right-of-way deed granted an easement, the exception of that right-of-way in a subsequent real estate deed would merely identify the easement for the grantee, and would not withhold the conveyance of the land under the right-of-way. This rule is explained by the above citations and analysis. The judges who construed Hilchkanum's subsequent real estate deeds refused to acknowledge this common law precedent. Considering the massive dishonesty in other parts of their analysis, it is obvious that the judges intentionally misapplied the law in order to obtain their predetermined outcome to their decisions. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)

         The intention of Hilchkanum in his subsequent real estate deeds is a material fact. There was no agreement between the parties in the King County v. Rasmussen and Ray v. King County lawsuits that the Hilchkanums intended to except "land" in their subsequent real estate deeds. As shown on this page, there was no precedent or law which supported the judge's analysis. If they were honest, the judges would have sent the lawsuits back for resolution of the Hilchkanum's intentions by a jury. (My statements describing wrongdoing or criminal actions on this webpage are a First Amendment expression of my opinion.)