# Loveridge v. United States

> United States Court of Federal Claims · August 13, 2018

URL: https://www.frixlaw.com/law-library/cases/4303380

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** August 13, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 16-912L and
No.16-1565L and No. 18-375 Consolidated
(Filed: August 13, 2018)

)
PERRY LOVERIDGE, et al., )
)
Plaintiffs, )
)
v. ) Rails-to Trails; Fifth Amendment
) Takings; Oregon Law, Easement; Fee
THE UNITED STATES, ) Simple
)
Defendant. )
)
********************* )
)
ALBRIGHT, et al., )
)
Plaintiffs, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)

Steven M. Wald, St. Louis, MO, for Loveridge plainitffs. Michael J. Smith, St. Louis,
MO and Thomas S. Stewart and Elizabeth G. McCulley, Kansas City, MO, of counsel.

Mark F. Hearne, II, Clayton, MO, for Albright plaintiffs. Maghan S. Largent, Lindsay
S.C. Brinton, and Stephen S. Davis, Clayton, MO and Abram J. Pafford, Washington,
D.C., of counsel.

Barbara M.R. Marvin, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C., with whom was Jeffrey H. Wood, Acting
Assistant Attorney General, for defendant. Ragu-Jara Gregg, Washington, D.C., of
counsel.

OPINION

FIRESTONE, Senior Judge

I. Introduction

Pending before the court are cross-motions for partial summary judgment filed

pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”)

by the plaintiffs in Loveridge v. United States (“Loveridge plaintiffs”), the plaintiffs in

Albright v. United States (“Albright plaintiffs”), and the United States (“the

government”).1

The Loveridge plaintiffs and the Albright plaintiffs claim in their motions that the

government affected a taking of their reversionary interests in land within a dormant rail

corridor when the government approved the conversion of an approximately eighty-one

mile long portion of a dormant railroad line between Tillamook County and Washington

County, Oregon to create a recreational trail pursuant to the National Trail System Act

Amendments of 1983, 16 U.S.C. § 1247(d) (“Trails Act”). The plaintiffs contend in their

motions that the deeds from their predecessors-in-interest granted only easements to the

railroad which terminated when the railroad became dormant. If the deeds granted

easements, plaintiffs argue that after the rail line became dormant the property within the

corridor reverted back to plaintiffs and that conversion of the rail corridor gave rise to a

taking of their reversionary interests in the rail corridor.

1
Loveridge v. United States and Albright v. United States both involve the same rail corridor in
Oregon and overlapping deeds but the cases involve different plaintiffs and there is different
counsel in each case. For these reasons, the cases have not been consolidated. Nonetheless,
because the cases concern the same segment of railroad line and involve many of the same deeds
the court is issuing a single opinion.
2

The government argues that the deeds at issue should be read to have conveyed the

property within the rail corridor to the railroads in fee simple absolute. If the railroads

received a fee interest in the corridor, the plaintiffs have no revisionary interest subject to

a taking. In the alternative, the government contends that any easements granted to the

railroad were broad enough to encompass trail use. In this opinion the court will only

address whether the deeds in dispute conveyed an easement, as plaintiffs contend, or a

fee, as the government contends.

II. The Rails to Trails Act

The statutory and legal backdrop to Rails-to-Trails cases was recently summarized

by the Federal Circuit in Chicago Coating Co., LLC v. United States, 892 F.3d 1164,

1165-68 (Fed. Cir. 2018). As the Federal Circuit explains, under the Trails Act, the

United States Surface Transportation Board (“STB”) has issued regulations regarding the

abandonment and discontinuance of service over railroad lines. See 49 C.F.R. §§

1152.1–1152.60. A railroad, to abandon or discontinue service over a rail line, must file

an application for abandonment or discontinuance with the STB under 49 U.S.C. § 10903

or a notice of exemption under 49 U.S.C. § 10502 and 49 C.F.R. § 1152.50. Under either

procedure, the STB will not approve the abandonment of the railroad line under either

procedure if a “qualified trail provider” (“a state, political subdivision, or qualified

private organization”) submits to the STB a request to use the rail corridor for interim

trail use and railbanking under 16 U.S.C. § 1247(d) (“section 1247(d)”). See 49 U.S.C. §

1152.29. If the qualified trail provider submits a statement of willingness to assume

financial and legal responsibility to the STB and the railroad carrier, the STB will, in

3

situations involving an operating railroad, issue a Certificate of Interim Trail Use or

Abandonment (“CITU”), which preserves the STB’s jurisdiction over the railroad

corridor while the parties negotiate an interim trail use agreement. 49 U.S.C. §

1152.29(c). In situations involving the exemption procedure, the STB will issue a Notice

of Interim Trail Use (“NITU”), which also preserves the STB’s jurisdiction over the

railroad corridor, allows the railroad to discontinue its operations, permits the railroad to

remove equipment and railroad track, and provides the railroad and the qualified trail

provider 180 days to negotiate an interim trail use agreement. 49 U.S.C. § 1152.29(d).

During this time, the railroad will also negotiate an agreement for the transfer of the rail

corridor to the trail operator. If an agreement is reached, the CITU or NITU

automatically authorizes the interim trail use. If the STB takes no further action, the trail

sponsor may then assume management of the former railroad corridor, subject only to the

right of a railroad to reassert control of the property for the restoration of rail service. If,

on the other hand, an agreement is not reached, the railroad will be allowed to abandon

the railroad line, at which time the STB’s jurisdiction over the railroad corridor

terminates. Section 1247(d) provides that interim trail use “shall not be treated, for

purposes of any law or rule of law, as an abandonment of the use of such rights-of-way

for railroad purposes.” 16 U.S.C. § 1247(d). Thus, the property remains within the

national rail system and available for reactivation of rail service for the duration of the

interim trail use. Chicago Coating, at 1167. The Federal Circuit has explained that

section 1247(d) of the Trails Act “prevents the operation of state laws that would

otherwise come into effect upon abandonment—property laws that would ‘result in

4

extinguishment of easements for railroad purposes and reversion of rights of way to

abutting landowners.’” Caldwell v. United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004)

(quoting Rail Abandonments—Use of Rights–of–Way as Trails, Ex Parte No. 274 (Sub–

No. 13), 2 I.C.C.2d 591, 1986 WL 68617 (1986)).

Under the Takings Clause of the Fifth Amendment, private property cannot “be

taken for public use, without just compensation.” U.S. Const. Amend. V. According to

the Federal Circuit, “[i]t is settled law that a Fifth Amendment taking occurs in Rails–to–

Trails cases when government action destroys state-defined property rights by converting

a railway easement to a recreational trail, if trail use is outside the scope of the original

railway easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010), reh’g

denied, 646 F.3d 910 (Fed. Circ. 2011). See also Chicago Coating, at 1167, 1170. A

Fifth Amendment taking occurs when “the issuance of the CITU or NITU authorizing

recreational trail use effectively extinguishes the state property rights of reversion of the

right-of-way to the fee owner.” Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708,

718 (2011). See also Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004) (“a

Fifth Amendment taking occurs when, pursuant to the Trails Act, state law reversionary

interests are effectively eliminated in connection with a conversion of a railroad right-of-

way to trail use.”); Chicago Coating, 1169-70 at *4 (“In order to prove a compensable

taking based on the issuance of a NITU, a claimant must prove that ‘state law

reversionary interests [in the property at issue] are effectively eliminated in connection

with a conversion of a railroad right-of-way to trail use.’” (quoting Caldwell, 391 F.3d at

1228)). Determining whether taking liability arises in a Rails-to-Trails case involves

5

addressing a three-part inquiry: “(1) who owns the strip of land involved, specifically,

whether the railroad acquired only an easement or obtained a fee simple estate; (2) if the

railroad acquired only an easement, were the terms of the easement limited to use for

railroad purposes, or did they include future use as a public recreational trail (scope of the

easement); and (3) even if the grant of the railroad’s easement was broad enough to

encompass a recreational trail, had this easement terminated prior to the alleged taking so

that the property owner at the time held a fee simple unencumbered by the easement

(abandonment of the easement).” Ellamae Phillips Co. v. United States, 564 F.3d 1367,

1373 (Fed. Cir. 2009) (citing Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir.

1996) (“Preseault II”)). See also Chicago Coating, 1169 at *4. Thus, in Rails-to-Trails

cases, “the threshold question is whether the claimant has a compensable property

interest in the land allegedly taken, which is often answered by analyzing the original

deeds that conveyed the property to the railroad.” Chicago Coating, 1170 at *2.

III. Factual Background

At issue in these cases are 132 deeds that in the early 1900s transferred property

interests to railroad companies in order to create the above-referenced 81.07 mile long

portion of the railroad line located between milepost 775.01 near Banks, Oregon and

milepost 856.08 near Tillamook, Oregon. Specifically, the interests were deeded to the

Pacific Railway and Navigation Company and the Southern Pacific Company.

Eventually, the Port of Tillamook Bay Railroad (“POTB”) obtained ownership of the

relevant portion of the railroad line.

6

On May 26, 2016, the Port of Tillamook Bay Railroad filed a Notice of Intent to

Partially Terminate (Abandon) Service for the railroad segment at issue here with the

STB. On or about June 17, 2016, the Salmonberry Trail Intergovernmental Agency

(“Salmonberry Trail”) filed with the STB a Statement of Willingness to Assume

Financial Responsibility (“Statement”) regarding the relevant railroad segment at issue in

this case. In its Statement, in addition to expressing its willingness to assume

responsibility for the relevant railroad segment, the Salmonberry Trail stated that the

relevant railroad segment “is suitable for railbanking” and requested that the STB find the

railroad segment suitable for trail use and issue a Public Use Condition and a Certificate

or Notice of Interim Trail Use under the National Trails System Act, 16 U.S.C. §1247(d).

On July 1, 2016, the POTB filed with the STB its response to the Salmonberry

Trail’s request and expressed its willingness to negotiate with the Salmonberry Trail

regarding the acquisition of the relevant railroad segment. On July 26, 2016, the STB

issued a Notice of Interim Trail Use (“NITU”) for the relevant railroad segment. On

January 19, 2017, the STB granted the Salmonberry Trail’s request for a 180-day

extension of the NITU until July 21, 2017 for negotiating the trail use/railbanking

agreement. Eventually, after another extension, the POTB and the Salmonberry Trail on

October 27, 2017, notified the STB that they entered into a trail use/rail banking

agreement regarding the relevant railroad segment.

IV. Procedural Posture

The present actions were filed by the Loveridge plaintiffs on August 1, 2016 and

by the Albright plaintiffs on November 23, 2016. See Loveridge v. United States, No.
7

1:16-cv-00912-NBF, ECF No. 1; Albright v. United States, No. 1:16-cv-01565-NBF,

ECF No. 1.

On September 22, 2017, the government and the Loveridge plaintiffs filed Joint

Stipulations Regarding Title Matters (“Loveridge Joint Stipulations”). See Loveridge,

ECF No. 24. The Loveridge plaintiffs filed their motion for partial summary judgment

and their memorandum in support of their motion for summary judgment on October 10,

2017. The Albright plaintiffs filed their motion for partial summary judgment and

memorandum in support on November 2, 2017. On December 12, 2017, the government

filed the same cross-motion and response for both cases.

Briefing on the motions was completed on April 9, 2018, and on April 19, 2018,

the court, in an effort to help expedite resolution of the numerous legal issues raised

regarding the 132 deeds at issue, filed, under seal, a statement of preliminary conclusions

and findings for the parties to consider and address before the scheduled oral argument.

See Loveridge, ECF No. 46; Albright, ECF No. 48. The court received the parties’

objections to the court’s preliminary conclusions and findings on May 3, 2018 and on

May 7, 2018, the court filed under seal an order setting forth the points of agreement and

disagreement between the parties. See Loveridge, ECF No. 49; Albright, ECF No. 51.

As set forth in that order, the parties agree that the following 18 deeds2 granted fee

simple interests to the railroad: Alderman 11/614 (Def.’s Ex. 2); Bryden 74/274 (Def.’s

Ex. 13); Coates 5/486 (Def.’s Ex. 22); Cone 7/339 (Def.’s Ex. 23); Edner 35/282 (Def.’s

2
Deeds are listed as Name Book/Page (Exhibit Number). Unless otherwise indicated, the
exhibits are those attached to the Def.’s Brief.
8

Ex. 34); Erickson 36/557 (Def.’s Ex. 36); Fry 74/243 (Def.’s Ex. 38); Handley 21/99

(Def.’s Ex. 47); Hauxhurst 11/330 (Def.’s Ex. 55); Hobson 7/39 (Def.’s Ex. 57);

Illingworth 7/164 (Def.’s Ex. 58); Johnson 11/353 (Def.’s Ex. 60); Kunze & Gubser

13/15 (Def.’s Ex. 68); Murphy 11/283 (Def.’s Ex. 78); Parks 11/329 (Def.’s Ex. 82); Pike

(Pacific Lodge) 7/81 (Def.’s Ex. 84); Provoost 7/21 (Def.’s Ex. 89); and Seamon 11/285

(Def.’s Ex. 99). Eventually, plaintiffs claiming a taking based on these deeds will have to

be dismissed from the case.

The parties also agree that the following 12 deeds conveyed only easements to the

railroad: Alley 9/537 (Def.’s Ex. 4); Brighton Mills Co. 58/292 (Def.’s Ex. 10);

Cummings 79/381 (Def.’s Ex. 26); Denni 75/372 (Def.’s Ex. 29); Hammond Lumber Co.

23/308 (Def.’s Ex. 46); Kilches River Co. 31/228 (Def.’s Ex. 64); Kinney 13/196 (Def.’s

Ex. 65); Larsen 5/133 (Def.’s Ex. 70); Miami Lumber Co. 27/440 (Def.’s Ex. 77)3;

Smith, Alfred 13/313 (Def.’s Ex. 102); Tucker 12/331 (Def.’s Ex. 112); and Whitney Co.

Ltd. 7/84 (Def.’s Ex. 124). See Def.’s Br. at 23–24; Pls.’ Loveridge Br. at 37–38; Oregon

Landowners’ Reply in Supp. Cross-Mot. Partial Summ. J. (“Pls.’ Albright Reply”) at 6–7,

Albright, ECF No. 46. See also Loveridge Joint Stipulations. The government

additionally agrees that the easements conveyed by eleven of these twelve source deeds

(all except the Brighton Mills Co. 58/292 deed) “are limited to railroad purposes” and

therefore “railbanking and trail use are outside the scope of the easements” that these

eleven deeds conveyed to the railroad. The plaintiffs claiming a taking based on these

deeds will continue in the litigation.

3
The parties do not address the deed in their motions.
9

Oral argument on the parties’ cross-motions for partial summary judgment with

regard to the 102 deeds remaining in contention was heard on May 9, 2018.

V. Summary Judgement Standards

Summary judgment is proper “if the movant shows that there is no genuine dispute

as to any material fact and that movant is entitled to judgment as a matter of law.” RCFC

56(a). A genuine dispute is one that could permit a reasonable jury to enter a verdict in

the non-moving party’s favor, and a material fact is one that could affect the outcome of

the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party

moving for summary judgment bears the initial burden of establishing the absence of a

genuine issue of material fact and can satisfy this burden by presenting evidence that

negates an essential element of the non-moving party’s case. Celotex Corp. v. Catrett,

477 U.S. 317, 322–23, 331 (1986). To establish a genuine issue of material fact, a party

‘“must point to an evidentiary conflict created on the record; mere denials or conclusory

statements are insufficient.”’ Radar Indus., Inc. v. Cleveland Die & Mfg. Co., 424 Fed.

App’x 931, 936 (Fed. Cir. 2011) (quoting SRI Int’l v. Matsushita Elec. Corp. of Am., 775

F.2d 1107, 1116 (Fed. Cir. 1985)). In evaluating motions for summary judgment, courts

must draw any inferences from the underlying facts in the light most favorable to the

non-moving party and may not engage in credibility determinations or weigh the

evidence. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). If no rational trier of fact could find for the non-moving party,

a genuine issue of material fact does not exist and the motion for summary judgment may

be granted. Matsushita Elec. Indus., 475 U.S. at 587. With respect to cross-motions for

10

summary judgment, courts must evaluate each motion on its own merits and resolve

reasonable inferences against the party whose motion the court is considered. Marriot

Intern. Resorts, L.P. v. United States, 586 F.3d 962, 968–69 (2009).

VI. Oregon Law

As discussed above, Rails-to-Trails takings cases arise from the application of

section 8(d) of the National Trails System Act (the “Trails Act”) as amended by the

National Trails System Act Amendments of 1983 and codified at 16 U.S.C. § 1247(d)

and liability for a taking occurs when “a claimant . . . prove[s] that ‘state law reversionary

interests [in the property at issue] are effectively eliminated in connection with a

conversion of a railroad right-of-way to trail use.’” Chicago Coating, 1170 at *4

(quoting Caldwell, 391 F.3d at 1228)). To determine whether there has been a taking

requires the court “to apply the law of the state where the property interest arises.” Id. at

*5 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972); Preseault II, 100 F.3d at

1536). In these cases, Oregon law applies.

Under Oregon law, the task of the court is to ascertain the intent of the original

parties by considering the language of the deed in its entirety and the surrounding

circumstances. See, e.g., Bouche v. Wagner, 293 P.2d 203, 208 (Or. 1956) (“Whether an

instrument conveys ownership of land or only an easement depends upon the intention of

the parties.” (quotation marks and citation omitted)); Doyle v. Gilbert, 469 P.2d 624, 626

(Or. 1970) (“It is [the court’s] duty, therefore, to determine the intent of the parties from

the language of the deed itself and from the surrounding circumstances.”); U.S. Nat. Bank

of La Grande v. Miller, 258 P. 205, 209 (Or. 1927) (“it is the duty of the court to give

11

effect to the intention of the parties in a deed as to other contracts. This intention must be

gathered from the entire instrument. In order to determine the intention of the parties, it

is the duty of the court to consider ‘the circumstances under which it was made, including

the situation of the subject of the instrument, and of the parties to it, * * * so that the

judge be placed in the position of those whose language he is to interpret.’” (citations

omitted)).

Oregon law provides that that “the intention to convey less than the full fee must

be clearly expressed or necessarily implied from the words used in the conveyance.”

Bouche v. Wagner, 293 P.2d 203, 208 (Or. 1956) (citing Weniger v. Ripley, 293 P. 425

(Or. 1930)). In Bernards v. Link, 284 P.2d 341 (Or. 1952) and Bouche v. Wagner, 293

P.3d 203 (Or. 1956), the Oregon Supreme Court has identified eight factors to examine in

determining whether a deed which does not expressly state the nature of the interest

conveyed should be read to have conveyed an easement or a fee simple interest to a

railroad. These factors are: (1) whether the deed is entitled “Right of Way Deed” or uses

“right of way” in the title of the deed, which would imply that only a “right” or easement

was granted to the railroad; (2) whether the phrase “right of way” is used in the body of

the deed to describe the interest being conveyed, which would indicate only a “right”

rather than a fee was conveyed; (3) whether the consideration paid for the interest was

nominal, which if nominal would suggest that an easement was conveyed; (4) whether

the deed contains a reverter clause; (5) whether the deed uses the phrase “over and

across” (or “over and across and out”) the lands of the grantors, which would indicate

that a right to cross the land or an easement was conveyed; (6) whether the property

12

interest conveyed is described with without precision, which if described without

precision would weigh in favor of construing the deed as an easement; (7) whether the

deed contains a commitment by the railroad to build structures, such as fences, cattle

guards, or crossings, which would favor finding an easement; and (8) whether the deed

uses the phrase “strip of land” to describe the interest being conveyed, which would

indicate that the deed conveyed an easement to the railroad. See Bernards v. Link, 248

P.2d 341, 343 (Or. 1952); Bouche v. Wagner, 293 P.2d 203, 209 (Or. 1956). This court

has previously applied these criteria in another Rails-to-Trails case involving Oregon

property owners. See Boyer v. United States, 123 Fed. Cl. 430, 437 (2015).

The government argues that two of the factors taken from the Bernards opinion

regarding the construction of structures such as fences, crossings, or cattle guards and

referencing the interest being conveyed as a “strip of land” may no longer be relevant to

determining whether a fee or easement was granted because the Oregon Supreme Court

in the later issued Bouche decision “failed to mention” those two factors, even though it

“specifically reiterated” the other six factors identified in Bernards. The court has read

Bouche and Bernards and concludes that Bouche cannot be read to have rejected the

relevance of those two factors in all situations. Rather, the issue of fencing did not

appear to be relevant in relation to the particular deeds examined in the Bouche case. As

for use of the phrase “strip of land,” the court agrees with the government that the phrase

standing alone will not be sufficient to establish the intent to convey only an easement, as

the Oregon Supreme Court stated that “‘[c]onveyances to railroads, which purport to

grant and convey a strip, piece, parcel, or tract of land, and which do not contain

13

additional language relating to the use or purpose to which the land is to be put or in other

ways cutting down or limiting, directly or indirectly, the estate conveyed, are usually

construed as passing an estate in fee.’” Bouche, 293 P.2d at 209 (quoting 132 A.L.R.

145).4

In examining the deeds remaining in dispute, the court recognized that virtually all

of the 102 disputed deeds, like most of the ones agreed upon by the parties, used phrases

like “strip of land” and “through the land” in the body of the deed and also described the

property conveyed with similar degrees of specificity. As such, the court has determined

that these factors are of limited value in discerning intent. Rather, as the Bouche court

stated, the court has focused its analysis on whether the deed contains language that can

be fairly read as limiting the railroad’s use of the estate conveyed to only a “right.” Thus,

in deciding whether the deed conveyed only an easement for a right of way and not a fee,

the court has focused on whether the deed uses the phrase “right of way” in the title or

text to describe the estate granted, contains language limiting the railroad’s use of the

property for only a railroad purpose or requiring the property to be returned if no longer

used for railroad purposes, provides for only nominal consideration, and requires the

railroad to provide and maintain crossings, fences or other edifices which would also

indicate that only an easement was conveyed.

VII. Deeds

4
Indeed, the plaintiffs have agreed that 18 deeds with the phrase “strip of land” and use the
words similar to “across” or “through” when describing property conveyed a fee interest in the
rail corridor. The government has also agreed that deeds which describe the property with a
degree of precision convey an easement.
14

1. The Alley 5/475 Deed

The Alley 5/475 deed (Def.’s Ex. 3) provides in pertinent part:

Know all Men by These Presents : [sic] That for and in consideration
of the sum of $15.00 to them in hand paid, the receipt whereof is hereby
acknowledged[,] Olivia Alley and Lee M. Alley, her husband, do hereby
grant, bargain, sell and convey to the Pacific Railway and Navigation
Company, and to its successors and assigns forever, that portion, triangular
in shape, of the lands owned by them in Lot 2, Sec. 21, T.1 N.R. 10 West
W. M., included in a strip 100 ft. in width being 50 ft. on each side of the
center line of the Pacific Railway and Navigation Company’s Railway, as
now surveyed and located thru the lands owned by them, and being that
portion thereof north of the north line of the County Road, as said County
Road is now situate and located, said center line of said Pacific Railway
and Navigation Company’s railway being more particularly described as
follows:
* * * [Description] * * *
Together with the tenements, hereditaments and appurtenances
thereunto belonging or in any way appertaining:
To Have and to Hold unto the said Pacific Railway and Navigation
Company and to its successors and assigns forever; together with the right
to build, maintain and operate thereover a railway and telegraph line.

The plaintiffs contend that this deed conveyed only an easement on the grounds

that the deed specifically references a purpose–“the right to build, maintain and operate

thereover a railway and telegraph line” and because it references “thru the lands” owned

by the grantor. The plaintiffs argue that under the Bernards/Bouche criteria these phrases

establish that an easement for railroad purposes was granted.

The government argues that the deed should not be construed as granting an

easement simply because it uses the phrase "thru the lands" and confirms the railroad’s

right to build a railroad on the property. The government argues that where, as here, the

deed does not reference a right of way either in the title or body of the deed the phrase

“thru the lands” simply describes the location of the property conveyed. The government

15

further argues that the language authorizing the “right to build, maintain and operate

thereover a railway. . . line,” does not limit the railroad’s use of the conveyance but

instead confirms the rights inherent in the fee conveyance. For these reasons, the

government argues the court should read the deed as conveying a fee simple interest to

the railroad.

First, the court finds that the phrase “together with the right to build, maintain and

operate thereover a railway and telegraph line” while identifying a railroad purpose does

not limit the railroad’s use. As will be discussed infra in this opinion, there are deeds

where the language “together with the right to build a railroad” is preceded with language

clearly stating that a “fee simple absolute” interest was granted. Moreover, the quoted

language does not limit the railroad’s rights to only construction and operation a railway

line. Rather, the subject language confirms the railroad’s right to construct a rail line

without limitation.

Therefore, based on the court’s understanding of the language discussed above,

and because the consideration payed was not nominal ($15), the court finds that without

any mention of the phrase “right of way”, nor any commitment by the railroad to build

structures such as crossings, cattle guards, or fences, the Alley 5/475 deed (Def.’s Ex. 3)

conveyed fee simple title to the railroad.5

2. The Batterson 12/163 Deed

5
Having concluded that the phrase “through the property” or “strip of land” are not helpful
where all deeds include that language, the court will not address that language in connection with
any of the disputed deeds unless the language is critical to its analysis. Similarly, the court will
not address whether the property conveyed is described with precision, because all of the deeds
describe the property conveyed with some degree of precision.
16

The Batterson 12/163 deed (Def.’s Ex. 5) provides in pertinent part:

S. M. Batterson et al Railway Deed.
to NO. 7948.
Pacific Railway and Navigation Co.
KNOWN ALL MEN BY THESE PRESENTS: That for and in
consideration of the sum of Eight [sic] Hundred & 00 DOLLARS, [sic] the
receipt whereof is hereby acknowledged, we, S M. Batterson [sic] and
Harriet E. McMaine, sole heirs at law of William Batterson, deceased, and
Pauline O. Batterson wife of said S. M. Matterson, hereinafter called the
grantors, do hereby bargain, sell, grant[,] convey and confirm to PACIFIC
RAILWAY AND NAVIGATION COMPANY, hereinafter called the
grantee, and to its successors and assigns forever, all of the following
described real property situate in the County of Tillamook and State of
Oregon, to-wit:
“A strip of land one hundred (100) feet wide being fifty (500 [sic]
feet on each side of the center line of the railway of the grantee, as the same
is surveyed and located through Lots 4, 6 and 7 and the North West quarter
of South East quarter of Section 34 and LOt [sic] 6 of Section 35, in
Township 3 North of Range nine West of Willamette Meridian.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD unto the above named grantee, and unto
its successors and assigns forever.
The grantors above named do covenant that they are seised of the
aforesaid premises in fee simple, and that the same are free from all
encumbrances, and that they will warrant and defend the premises herein
granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

The Albright plaintiffs argue that this court should consider the Batterson 12/163

deed and similar deeds entitled “Railway Deeds” to have conveyed easements under

Bouche/Bernards criteria because the title indicates that the property is to be used for a

railway purpose. The plaintiffs also contend that the subject deed meets three other

Bouche/Bernards criteria that suggest the conveyance of an easement. Specifically, the

Albright plaintiffs argue that the language in the deeds stating “as surveyed and located

[through/across/on the grantor’s land]” language or similar language confirms that only

17

an easement was granted to the railroad because this language indicates that the railroad

had begun the condemnation process to acquire the property for the rail line. According

to the plaintiffs, since these deeds were executed under the “threat of condemnation[,]”

the deeds do not represent “arms-length” transactions between the parties. In addition the

plaintiffs argue that the deeds can only be for an “easement,” because railroads could

only obtain easements using their condemnation authority under Oregon law. Oregon

law at the time, the Albright plaintiffs assert, “limited the interest the railroad could

obtain by exercising [its eminent domain] power to an easement.” Pls.’ Albright Resp. at

21 (citing Oregon Railway and Navigation Co. v. Oregon Real Estate Co., 10 Or. 444

(1882); Redfield on Railways § 61, ¶ 5, p. 221).

The government responds that there are no Oregon cases to suggest that a deed

entitled “Railway Deed” cannot convey a fee or cases to suggest that only an easement

was intended where the deed indicates that the railroad had likely begun condemnation

proceedings by surveying the subject property. The government emphasizes that courts

in Oregon have previously examined deeds that contained “surveyed” language and did

not find that such language indicated that only an easement was conveyed. To the

contrary, the Oregon Supreme Court determined that a deed which conveyed, for $650,

property on which the railroad’s track had already been “located and established”

conveyed a fee simple title to the railroad, when the language of the deed as a whole

indicated the parties’ intent to convey a fee. See Bouche, 293 P.2d at 206, 210.

The court agrees with the government. In Bouche, the Supreme Court of Oregon

determined that a railroad can acquire fee simple title to narrow strips of land that had

18

been surveyed by the railroad. The Oregon Supreme Court in Bernards examined a deed

conveying a strip of land that stated that “‘[s]aid strip of land shall be taken substantially

along the line as now surveyed and staked as a line for a railroad by said grantee or its

agents and servants, over and across said land”’ and never suggested that this language

meant that only an easement was intended. Bernards, 199 Or. at 248 P.2d at 342

(emphasis added). For all of these reasons the court finds that the term “Railway Deed”

and the fact that the subject property was surveyed and staked does not indicate that an

easement rather than a fee was conveyed.

The court finds with regard to this deed that that the absence of any “right of way”

language or language indicating that the interest conveyed is limited to railroad purposes,

the fact that the railroad is not required to build fencing or crossings, and that $800 in

consideration was paid by the railroad all weigh in favor of finding that the parties

intended to convey a fee interest to the railroad. The court thus holds that the Batterson

12/163 deed (Def.’s Ex. 5) granted fee simple title to the railroad.

3. The Bay City Land Co. 3/629 Deed

The Bay City Land Co. 33/629 deed (Def.’s Ex. 6) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That for and in consideration
of the sum of $1.00 to it in hand paid, the receipt whereof is hereby
acknowledged, and other valuable consideration moving to it, Bay City
Land Company, hereinafter called the grantor, does bargain, sell, grant and
convey to Pacific Railway and Navigation Company, hereinafter called the
grantee, and to its successors and assigns forever, all of the following
described real property situate in the County of Tillamook and State of
Oregon, to wit:
Block 12 of First Water Front Addition to Bay City; also
A strip of land one hundred feet in width, being fifty feet on each
side of and parallel with the center line of the grantee’s railway running, or

19

to run, from Hillsboro to Tillamook, as constructed through the following
described real property in the County of Tillamook and State of Oregon, to
wit:
* * * [Describing the property through which the strip conveyed
runs] * * *
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD to the grantee and to its successors and
assigns forever; confirming to the grantee likewise the right to build,
maintain and operate a railroad over the property granted as aforesaid, and
to construct a freight and passenger station on Block 12, of the First Water
Front Addition to Bay City.

For the reasons previously discussed in connection with the Alley 5/475 deed, the

court finds that the language confirming the right to build a railroad does not limit the

railroad’s use to only railroad purposes. Even though the amount of consideration is

nominal ($1.00), the deed does not contain the phrase “right of way” in the title or body

of the deed nor any requirement for the railroad to build structures such as crossings,

cattle guards, or fences. Therefore, the court finds the language of the deed as a whole,

the court finds that the Bay City Land Co. 33/629 deed (Def.’s Ex. 6) granted fee simple

title to the railroad.

4. The Beals (Tr.) 18/40 Deed

The Beals (Tr.) 18/40 deed (Def.’s Ex. 7) provides in pertinent part:

F.R. Beals, Trustee
to 11135 Railway Deed
Pacific Railway + Navigation Co
Know All Men by These Presents: That for and in consideration of
the sum of One and 00/100 Dollars, [sic] the receipt whereof is hereby
acknowledged, F R. Beals, Trustee, hereinafter called the grantors, [sic] do
[sic] bargain, sell, grant, convey and confirm to Pacific Railway and
Navigation Company, hereinafter called the grantee, and to its successors

20

and assigns forever, all of the following described real property situate in
the County of Tillamook and State of Oregon, to wit:
“A strip of land sixty (60) feet wide being thirty (30) feet on each
side of the center line of the railway of the grantee as the same is surveyed
and located through Lot three of Section thirty two in Township two North
of Range ten West of the Willamette Meridian.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To have and to hold unto the above named grantee and unto its
successors and assigns forever.

As discussed above in the court’s analysis of the Batterson 12/163 deed

(Def.’s Ex. 5), the court does not find that the term “Railway Deed” indicates an

easement in the same way that a deed entitled “Right of Way Deed” does. Even though

the amount of consideration is nominal ($1), without any “right of way” language in the

title or body of the deed, and no mention of a railroad purpose, nor any requirement for

the railroad to build structures such as crossings, cattle guards, or fences, the court finds

that the Beals (Tr.) 18/40 deed (Def.’s Ex. 7), conveyed fee simple title to the railroad.

5. The Beals Land Co. 18/41 Deed

The Beals Land Co. 18/41 deed (Def.’s Ex. 8) provides in pertinent part:

Beals Land Company
to 11136 Right of Way Deed
Pacific Railway + Navigation Co
Know All Men by These Presents: that for and in consideration of
the sum of One [sic] + 00/100 Dollars, the receipt whereof is hereby
acknowledged, Beals Land Company, a corporation duly organized and
existing under and by virtue of the laws of the State of Oregon, hereinafter
called the grantors, [sic] do [sic] hereby bargain, sell, grant, convey and
confirm to Pacific Railway and Navigation Company, hereinafter called the
grantee, and to its successors and assigns forever, all of the following
described real property situate in the County of Tillamook and State of
Oregon, to wit:

21

“A strip of land sixty (60) feet wide being thirty (30) feet on each
side of the center line of the railway of the grantee as the same is surveyed
and located through Lot two of Section thirty two in Township two North
of Range ten West of the Willamette Meridian, save and except a certain
tract heretofore conveyed by Beals Land Company to Security Savings and
Trust Company.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To Have and to Hold unto the above named grantee and to its
successors and assigns forever.
The grantors above named do covenant that they are seized of the
aforesaid premises in fee simple, and that the same are free from all
incumbrances, and that they will warrant and defend the premises herein
granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

Although the language in the two Beals deeds are not identical, the parties make

similar arguments. This deed, however, is labeled as a “Right of Way Deed” and in such

circumstances it is treated differently under the Bouche and Bernards cases than if it was

entitled “Railway Deed”. The court recognizes that use of the phrase “Right of Way

Deed” is not dispositive on discerning the parties’ intention; however, it weighs in favor

of finding an easement if other indicia are present in the deed. Here the only indicia is

that there was only nominal consideration ($1) paid by the railroad. The deed does not

mention any railroad purpose nor does it require the railroad to build structures such as

crossings, cattle gaurds, or fences. Therefore, the court finds that the Beals Land Co.

18/41 deed (Def.’s Ex. 8) conveyed a fee to the railroad.

6. The Bigelow 13/321 Deed

The Bigelow 13/312 deed (Def.’s Ex. 9) provides in pertinent part:

Know All Men by These Presents: That for and in consideration of
the sum of $1.00 to them in hand paid, the receipt whereof is hereby
acknowledged, Mary M. Bigelow and Jay W. Bigelow, her husband,

22

hereinafter called the grantors, do bargain, sell, grant, convey and confirm
to Pacific Railway and Navigation Company, hereinafter called the grantee,
and to its successors and assigns forever, all of the following described real
property situate in the County of Tillamook and State of Oregon, to wit:
A strip of land 100 feet in width, being 50 feet on each side of and
parallel with the center line of the grantee’s railway as the same is
surveyed, located and staked out through the Southeast quarter of the
Southeast quarter of Section 32, in Township 3 North of Range 9 West of
Willamette Meridian, and containing eighty-four hundredths of an acre[.]
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining
To Have and to Hold to the grantee and to its successors and assigns
forever.
This deed is executed for the purpose of correcting an informality in
a previous deed executed by the above named grantor, Mary M. Bigelow,
without the joinder of her husband.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Bigelow 13/312 deed (Def.’s Ex. 9), conveyed fee simple

title to the railroad.

7. The Brinn 6/328 Deed

The Brinn 6/328 deed (Def.’s Ex. 11) provides in pertinent part

KNOW ALL MEN BY THESE PRESENTS: That foR [sic] and in
consideration of the sum of $150.00 to them in hand paid, the receipt
whereof is hereby acknowledged, G. A. Brinn and Annie Brinn, his wife,
do hereby grant, bargain, sell and convey to the Pacific Railway and
Navigation Company, and to its successors and assigns forever, all that
portion of the land owned by them embraced in a strip of land 100 ft. wide,
being 50 ft. on each side of the center line of the Pacific Railway and
Navigation Company’s Railway, as now surveyed, located and adopted thru
the lands of the aforesaid G. A. and Annie Brinn, in Lots 1- 2- 3- 4- 5- 6- 7-
and 8, [sic] Block “A”, [sic] Plat of East Garibaldi, Sec. 21, T. 1 N. R. 10
W., W.M., said center line being more particularly described as follows:
* * * [Description] * * *
23

Together with the tenements, hereditaments, and appurtenances
thereunto belonging or in anywise appertaining;
TO HAVE AND TO HOLD unto the Pacific Railway and
Navigation Company, and to its successoRs [sic] and assigns forever;
together with the right to build, maintain and operate thereover a railway
and telegraph line.

For the same reasons as discussed above regarding the Alley 5/475 deed, the court

finds that the language confirming that the right to build a railroad does not limit the

railroad’s use to only railroad purposes. Here, the amount of consideration is not nominal

($250), there is no “right of way” language in the title or body of the deed, nor any

requirement for the railroad to build structures such as crossings, cattle guards, or fences.

Therefore, the court finds Brinn 6/328 deed (Def.’s Ex. 11), conveyed fee simple title to

the railroad.

8. The Bryden 74/273 Deed

The Bryden 74/273 deed (Def.’s Ex. 12) is a form deed that provides in pertinent

part:

Know all Men by these Presents, That
James Bryden and Addie Bryden , [sic] his wife and John Stewart and Clara
Stewart, his wife
of xxxxxxxx State of Oregon, in consideration of
Twenty Two [sic] and 05/100 ($22.05) DOLLARS,
to them paid by Pacific Railway and Navigation Company
of Portland , Multnomah [sic] County xx State of Oregon * * *
* * * * * have bargained and sold, and by these presents do grant, bargain,
sell and convey unto said
Pacific Railway Navigation Company[,] its successors
* * * and assigns, all the following bounded and described real property,
situated in the County of Washington and State of Oregon:
A strip of land one hundred (100) feet wide being fifty (50) feet on
each side[]of the center line of the Pacific Railway and Navigation
Company’s Railway as surveyed, located and adopted across W [sic] of N.
W [sic] Sec. 29, T. P. 3 N. R. 4 W. W. M. described as follows:
24

Beginning at a point on the east line of W of NW 685 feet north of the
Southeast corner thereof, said point being at the intersection of said east
line with the west line of said Right of Way; running thence North 7
degrees and 59 minutes west along said west line of Right of Way 820 feet;
thence by a spiral to the left 60 feet; thence * * * [describing property] * *
*; containing four and 58/100 (4.58) acres.
* * * [Blank space] * * *
Together with all and singular the tenements, hereditaments and
appurtenances thereto belonging or in anywise appertaining and also all
their estate, right, title and interest in and to the same,
including dower and claim of dower.
TO HAVE AND TO HOLD the above described and granted premises
unto the said
PACIFIC RAILWAY AND NAVIGATION COMPANY[,] its
successors xxx and assigns forever. And
James Bryden and Addie Bryden, his wife, and John
Stewart and Clara Stewart[,] his wife, grantors above named do covenant
to and with
Pacific Railway and Navigation Company
the above named grantee[,] its successors and assigns that[]it is lawfully
seized in fee simple of the above granted premises, that the above granted
premises are free from all incumbrances
***
and that they will and their heirs, executors and
administrators shall warrant and forever defend the above granted
premises, and ever part and parcel thereof, against the lawful claims and
demands of all persons whomsoever.
(italics in original).

The court finds that the language of this deed viewed as a whole weighs in favor

of finding that a fee was granted. Here, the court finds that the deed’s use of the phrase

“right of way” is not meant to describe the property interest but provides a geographic

location Furthermore, the consideration provided is not nominal ($22.05), there is no

mention of a railroad purpose, nor any requirement for the railroad to build structures

such as crossings, cattle guards, or fences. Therefore, the court finds that the Bryden

74/273 deed (Def.’s Ex. 12) granted fee simple title to the railroad.

25

9. The Burgholzer 83/99 Deed

The Burgholzer 83/99 deed (Def.’s Ex. 14) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That Joseph
Burgholzer and Vina A. Burgholzer, his wife for and in consideration of the
sum of One Dollar, to them in hand paid, the receipt whereof is hereby
acknowledged, do hereby bargain, sell, grant, convey and confirm to
Pacific Railway and Navigation Company, and[]to its successors and
assigns forever, all of the following described real property situate in the
County of Washington and State of Oregon, to-wit:
A strip of land one hundred feet in width, being fifty feet on each
side of and parallel with the center line of the track of the Pacific Railway
and Navigation Company, as the same is surveyed and located through the
East one half of the Northeast quarter of Section thirty (30) in Township
three (3) North of Range four (4) West W. M.
Together with the tenements, hereditaments and appurtenances [,]
thereunto belonging or in anywise appertaining. TO HAVE[]AND TO
HOLD to the said Pacific Railway and Navigation Company, and to its
successors and assigns forever.
The aforesaid grantors Joseph Burgholzer and Vina A. Burgholzer
do hereby covenant that they are the owners in fee simple of the aforesaid
premises, and that they will forever warrant and defend the same unto the
Pacific Railway and Navigation Company, its successors and assigns,
against the lawful claims of all persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of railroad purposes, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Burgholzer 83/99 deed (Def.’s Ex. 14) conveyed fee

simple title to the railroad.

10. The Burgholzer 87/71 Deed

The Burgholzer 87/71 deed (Def.’s Ex. 15) in pertain part provides:

KNOW ALL MEN BY THESE PRESENTS, That I, Max
Burgholzer (unmarried) of Lane County, Oregon, in consideration of the
sum of $1.00, to me paid by the Pacific Railway & Navigation Company, a
26

Corporation, the receipt whereof is hereby acknowledged[,] do hereby
remise, release and forever quitclaim unto the said Pacific Railway &
Navigation Company, a Corporation, its successors and assigns, all my
right, title and interest in and to the following described parcel of real estate
situate in the County of Washington and State of Oregon, to-wit: A strip of
land 100 ft. in width, being 50 ft. on each side of and parallel with the
center line of the track of the Pacific Railway & Navigation Company, as
the same is surveyed and located through the west half of the northwest
quarter of Section 36, T 3 N. R. 5 W. of the Will. Mer., containing 2.84
acres[.] TO HAVE AND TO HOLD the same, together with all and
singular the hereditaments and appurtenances thereunto belonging[]or in
anywise appertaining, to the said Pacific Railway and Navigation
Company, a Corporation, its successors and assigns forever. This
Conveyance is made to confirm title to said right of way in the Pacific
Railway & Navigation Company, a Corporation, its successors
and[]assigns.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Burgholzer 87/71 deed (Def.’s Ex. 15) conveyed a fee to

the railroad.

11. The Byrom 5/310 Deed

The Byrom 5/310 deed (Def.’s Ex. 16) provides in pertinent part:

Peter Byrom et ux No. 2820
to Right of Way
Pacific Railway and Navigation Co. $5.00
Know All Men by These Presents: That for and in consideration of the sum
of $5.00, to them in hand paid, the receipt whereof is hereby acknowledged, Peter
Bryom and Bergtha [sic] Byrom, his wife, do bargain, sell, grant and convey to the
Pacific Railway and Navigation Company, and to its successors and assigns
forever, a strip of land 100 ft. wide, being 50 ft. on each side of the center line of
the railway of the Pacific Railway and Navigation[]Company, as now surveyed
and located thru lands of the aforesaid Peter Byrom and Bergtha [sic] Byrom in
Sections 21 and 22, in Township 1 North of Range 10 West of the Willamette
Meridian, more particularly described as follows, to wit:
27

All tide lands fronting and abutting on Lots 3[]and 4 in Section 21, and
Lots 1, 2 and 3 in Section 22, in Township 22, in Township 1 North of Range 10
West of the Willamette Meridian; together with the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining. To Have and to
Hold unto the said Pacific Railway and Navigation Company, and to its successors
and assigns forever; together with the right to build, maintain and operate
thereover a railway and telegraph line[.]

The court recognizes the fact that use of the phrase “Right of Way Deed” is not

dispositive on discerning the parties’ intention; however, it weighs in favor of finding an

easement. Additionally, for the same reasons as discussed in this court’s review of the

Alley 5/475 deed, the court finds that the language confirming that the land granted can

be used for railroad purposes does not limit the railroad’s use to only railroad purposes.

The court notes that the deed does not use the term “right of way” in the body of the deed

to suggest that the interest being conveyed was limited to an easement, consideration was

not nominal ($5), nor does the deed contain any language requiring the railroad to build

structure such as crossings, cattle guards, or fences. Therefore, based on review of the

language of the deed as a whole, the court finds that the Byrom 5/310 deed (Def.’s Ex.

16) conveyed a fee to the railroad.

12. The Byrom 5/312 Deed

The Byrom 5/312 deed (Def.’s Ex. 17) provides in pertinent part:

Bergtha [sic] and Peter Byrom No. 2821
to Right of Way
Pacific Railway + Navigation Co. $400.00
Know All Men by These Presents: That for and in consideration of
the sum of $400.00, to them in hand paid, the receipt whereof is hereby
acknowledged, Bergtha [sic] Byrom and Peter Bryom, her husband, do
bargain, sell, grant and convey to the Pacific Railway and Navigation
Company, and to its successors and assigns forever, a strip of land 100 ft.
wide, being 50 ft. on each side of the center line of the railway of the

28

Pacific Railway and Navigation[]Company, as now surveyed and located
thru lands of the aforesaid Peter Byrom and Bergtha [sic] Byrom in
Sections 21 and 22, in Township 1 North of Range 10 West of the
Willamette Meridian, more particularly described as follows, to wit:
* * * * [Describing the property through which the strip conveyed runs]
****
Together with the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.
To Have and to Hold unto the Pacific Railway and Navigation
Company and to its successors and assigns forever; together with the right
to build, maintain and operate thereover a railway and telegraph line[.]

The court recognizes the fact that use of the phrase “Right of Way Deed” is not

dispositive on discerning the parties’ intention; however, it weighs in favor of finding an

easement. Additionally, for the same reasons as discussed in this court’s review of the

Alley 5/475 deed, the court finds that the language confirming that the land granted can

be used for railroad purposes does not limit the railroad’s use to only railroad purposes.

Here, the consideration paid was not nominal ($400), there is no reference to the term

“right of way” in the body of the deed to suggest that the interest being conveyed was

limited to an easement, nor any language requiring the railroad to build structure such as

crossings, cattle guards, or fences. Therefore, based on review of the language of the

deed as a whole, the court finds that the Byrom 5/312 deed (Def.’s Ex. 17) conveyed a

fee to the railroad.

13. The Campbell 85/208 Deed

The Campbell 85/208 deed (Def.’s Ex. 18) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That D. F. Campbell
and Cecily C. Campbell, his wife, for and in consideration[]of the sum of
One Dollar ($1.00), to them in hand paid, the receipt whereof is hereby
acknowledged, do hereby bargain, sell, grant, convey and confirm to
Pacific Railway and Navigation Company, and to its successors and assigns

29

forever, all of the following described real property situate in the County of
Washington and State of Oregon, to-wit: A strip of land one hundred feEt
[sic] in width, being fifty feet on each side of and parallel with the center
line of the track of the Pacific Railway and Navigation Company, as the
same is now surverye d[]and [sic] located through the West half of the
Northwest quarter of Section Thirty six (36) Township Three [sic] (3)
North Range Five West, containing 2.84 acres. Together with the
tenements, hereditaments and appurtenances thereunto belonging or in
anywise appertaining. TO HAVE AND TO HOLD to the sAid [sic] Pacific
Railway and Navigation Company and to its successors and assigns
forever. The aforesaid D. F. Campbell and Cecily C. Campbell, his wife, do
hereby covenant that they are the owners in fee simple of the above granted
premises, and that they will forever warrant and defend the same unto the
Pacific Railway and Navigation Company, its successors and assigns,
against the lawful claims of all persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Campbell 85/208 deed (Def.’s Ex. 18) conveyed a fee to

the railroad.

14. The Carstens 72/527 Deed

The Carstens 72/527 deed (Def.’s Ex. 19) provides in pertinent part:

THIS INDENTURE, made this 22nd day of August 1906, between
A. C. Carstens, and Sarah E. Carstens, his wife, of Washington County,
Oregon, parties of the first part, and the Pacific Railway & Navigation
Company, a Corporation, party of the Second [sic] part, WITNESSETH:
That the said parties of the first part, for and in consideration of the
sum of $250.00 to them in hand paid, by the party of the second part, the
receipt of which is hereby acknowledged[,] have granted, bargained and
sold, conveyed and confirmed and by these presents do grant, bargain and
sell, convey and confirm unto the said party of the second part, and its
successors and assigns, all that certain lot, piece, parcel and tract of land,
lying, being and situate in Washington County, Oregon, and particularly
described as a portion of Section 25, T [sic] 2 N. R. 4 W., a strip of land 80
feet wide, being 40 feet on each on each side of the center line of the

30

Pacific Railway & Navigation Company’s Railway as now surveyed and
located on said land and described as follows:
* * * [Description] * * *
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders,[]rents, issues, and
profits thereof.
TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said party of the second part and
unto its successors and assigns forever. And the parties of the first part
hereby covenant to and with the party of the second part, its successors and
assigns, that the parties of the first part, [sic] are the owners in fee simple of
the tract of land above described, and the whole thereof; That [sic] said
premises are fee from all incumbrances, and that the parties of the first part,
their heirs, executors and administrators, shall warrant and forever defend
the above described and granted premises and every part and parcel thereof
against the lawful claims and demands of all persons whomsoever.

Here, the amount of consideration paid was not nominal ($250), there is no

reference to a “right of way” in the title or body of the deed, and no mention of a railroad

purpose nor does the deed contain any requirement for the railroad to build structures

such as crossings, cattle guards, or fences. The court thus finds that the Carstens 72/527

deed (Def.’s Ex. 19) granted fee simple title to the railroad.

15. The Carstens 72/530 Deed

The Carstens 72/530 deed (Def.’s Ex. 20) provides in pertinent part:

THIS INDENTURE, made this 25th day of August 1906, between
John F. Carstens and Netta Carstens, his wife, of Washington County,
Oregon, parties of the first part, and the Pacific Railway & Navigation
Company, a Corporation, party of the second part, WITNESSETH:
That the said parties of the first part, for and in consideration of the
sum of One Dollar ($1) and other valuable consideration, to them in hand
paid by the party of the second part, the receipt of which is hereby
acknowledged, have granted, bargained and sold, conveyed and confirmed
and by these presents do grant, bargain and sell, convey and confirm unto
the said party of the second part, and its successors and assigns, all that
certain lot, piece, parcel and tract of land, lying, being and situate in

31

Washington County, Oregon, and particularly described as a portion of Sec.
25, T. 2 N. R. 4 W., a strip of land 80 feet wide, being 40 feet on each side
of the center line of the[]Pacific Railway and Navigation Company’s
Railway, as now surveyed and located on said lands and described as
follows:-
* * * [Description] * * *
A strip of land 60 feet wide, being 30 feet on each side of the center
line of the Pacific Railway & Navigation Company’s Railway, as now
surveyed and located on said[]land and described as follows:-
* * * [Description] * * *
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof.
TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said party of the second part and
unto its successors and assigns as long as used and operated for railway and
transportation purposes. And the parties of the first part hereby covenant to
and with the party of the second part, its successors and assigns, that the
parties of the first part, [sic] are the owners in fee simple of the tract of land
above described, and the whole thereof, [and] that said premises are free
from all incumbrances, [sic]

This deed contains the following language “as long as used and operated for

railway and transportation purposes.” The Albright plaintiffs argue that this language

establishes an easement because it directly limits the estate being conveyed. See Pls.’

Albright Resp. at 29. See also Transcript of Oral Argument (“Arg. Tr.”) 53:7-18, May 9,

2018. The government argues that the deed conveys a fee simple determinable interest

under Oregon law, citing State By & Through Dep’t of Transp., Highway Div. v. Tolke,

586 P.2d 791, 795 (Or. Ct. App. 1978) and Kilpatrick v. Snow Mountain Pine Co., 80

P.2d 137, 139 n.2 (Or. Ct. App. 1991). Arg. Tr. 49:20-50:21. See also Def.’s Br. at 21–

22. In Tolke, the Oregon Court of Appeals determined that a deed that had, for

substantial consideration ($1098.70), granted a strip of land to a railroad ‘“so long as said

32

property herein granted shall be possessed, used and occupied as a railroad right of way

and be used and occupied for the purposes of construction, maintenance and operation

thereon and thereover, railroads and railroad trains,”’ conveyed a “fee simple

determinable estate” to the railroad. Tolke, 586 P.2d at 794, 796. The Tolke court also

stated that the deed further provided that the land conveyed under the terms of the deed if

the property is no longer used for a railroad it “shall immediately revert to the grantors.”

Tolke, 586 P.2d at 795.

The court finds that this case is different from Tolke because (1) this deed involves

only $1 in consideration and (2) it does not contain the revisionary language the Oregon

Court of Appeals found to be significant. Tolke at 586 P.2d at 793 n.3. In such

circumstances, the court finds that the language is more consistent with language the

Oregon courts have found to have granted only an easement. Bernards, 248 P.2d 342,

352. Accordingly, the court finds that the Carstens 72/530 deed (Def.’s Ex. 20)

conveyed an easement to the railroad.

16. The Chance 5/449 Deed

The Chance 5/449 deed (Def.’s Ex. 21) provides in pertinent part

Know all Men by These Presents: That for and in consideration of
the sum of $50 to them in hand paid, the receipt whereof is hereby
acknowledged, Marion T. Chance and Laura I. Chance, his wife, do hereby
grant, bargain, sell, and convey to the Pacific Railway and Navigation
Company, and to its successors and assigns forever, all that portion of the
land owned by them, embraced in a strip of land 100 feet wide, being 50 ft.
on each side of the center line of the Pacific Railway and Navigation
Company’s Railway, as surveyed, located and adopted thru the lands of the
aforesaid Marion T. Chance, in Lots 1- 2- 3- 4- 5- and six, [sic] Block 10,
original Townsite of Garibaldi, Sec. 21, T. 1[]N. R. 10 W., W.M. said
center line being more particularly described as follows:

33

* * * [Description] * * *
Together with the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.
To Have and to Hold unto the Pacific Railway and Navigation
Company and to its successors and assigns forever, together with the right
to build, maintain and operate thereover a railway and telegraph line.

For the same reasons as discussed in this court’s review of the Alley 5/475 deed,

the court finds that the language confirming that the land granted can be used for railroad

purposes is not dispositive on the question of whether an easement was granted. Here,

the amount of consideration is not nominal ($50), there is no “right of way” language in

the title or body of the deed, nor any requirement for the railroad to build structures such

as crossings, cattle guards, or fences. Therefore, the court finds that Chance 5/449 deed

(Def.’s Ex. 21), conveyed fee simple title to the railroad.

17. The Cook 15/83 Deed

The Cook 15/83 deed (Def.’s Ex. 24) pertains in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That Vincent Cook
and Martha G. Cook, his wife, hereinafter called the grantors, in
consideration of the sum of Ten ($10.00) Dollars, to them in hand paid, the
receipt whereof is hereby acknowledged, and other valuable considerations
moving to them, do * * * bargain, sell, grant, convey and confirm to Pacific
Railway and Navigation Company, hereinafter called the grantee, and to its
successors and assigns[]forever, a one half interest in the following
described real property situate in the County of Tillamook and State of
Oregon, to-wit:
A strip of land one hundred (100) feet in width, being fifty (50) feet
on each side of and parallel with the center line of the tract of the Pacific
Railway and Navigation Company’s railway as the same is now located,
adopted, and constructed across the Northwest quarter[]of the Southwest
quarter and the Southwest quarter of the Northwest quarter of Section
eighteen (18) in Township one (1) South of Range nine (9) West of the
Willamette Meridian, containing 5.07 acres,
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining,

34

TO HAVE AND TO HOLD to the above named grantee and to its
successors and assigns forever.

The court finds that this deed’s conveyance of “a one half interest in the following

described real property” is indicative of the original parties’ intent to have conveyed a fee

interest to the railroad. Here, the amount of consideration paid was not nominal ($10),

there is no reference to a “right of way” in the title or body of the deed, and no mention

of a railroad purpose, nor any requirement for the railroad to build structures such as

crossings, cattle guards, or fences. Therefore, the court finds that the Cook 15/83 deed

(Def.’s Ex. 24), granted fee simple title to the railroad.

18. The Cummings 77/262 Deed

The Cummings 77/262 deed (Def.’s Ex. 25) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS, That for and in
consideration of the sum of $217.00 to them in hand paid, the receipt
whereof is hereby acknowledged, James Cummings and Ann Cummings[,]
his wife, hereinafter called the grantors, do hereby bargain, sell, grant,
convey and confirm to Pacific Railway and Navigation Company,
hereinafter called the grantee, and to its successors and assigns forever, all
of the following described real property situate in the County of
Washington and State of Oregon, to-wit:-
A strip of land one hundred feet in width, being fifty feet on each
side of and parallel with the center line of the track of the grantee as the
same is surveyed and located through the West half of the Southeast quarter
of Section 29 in Township 3 North of Range 4 West of the Willamette
Meridian, containing 7.70 acres more or less.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD to the above named grantee and to its
successors and assigns forever.
The grantors do further covenant that the grantee may operate a
railway line over the properties above described and also do all things
convenient or useful to be done in connection therewith. The grantors do
covenant that they are seised of the aforesaid premises in fee simple; that
their estate therein is free from all liens and encumbrances, and that they
will and their heirs, executors and administrators shall forever warrant and
35

defend the above granted premises unto the grantee herein and unto its
successors and assigns forever against the lawful claims and demands of all
persons.

For the same reasons as discussed in this court’s review of the Alley 5/475 deed,

the court finds that the language confirming that the land granted can be used for railroad

purposes does not limit the railroad’s use to only railroad purposes. Here, the amount of

consideration is not nominal ($217), there is no “right of way” language in the title or

body of the deed, nor any requirement for the railroad to build structures such as

crossings, cattle guards, or fences. Therefore, the court finds that the Cummings 77/262

deed (Def.’s Ex. 25), conveyed fee simple title to the railroad.

19. The Davidson 11/509 Deed

The Davidson 11/509 deed (Def.’s Ex. 27) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That for and in
consideration of the sum of One and 00/100 Dollars, the receipt whereof is
hereby acknowledged, we F. M. Davidson and Alvie Davidson, husband
and wife[,] hereinafter called the grantors, do hereby bargain, sell, grant[,]
convey and confirm to PACIFIC RAILWAY AND NAVIGATION
COMPANY, hereinafter called the grantee, and to its successors and
assigns forever, all of the following described real property situate in the
County of Tillamook and State of Oregon, to-wit:
“A strip of land one hundred (100) Feet [sic] wide being fifty (50)
feet on each side of the center line of the railway of the grantee as the same
is surveyed and located through our undivided one third interest in the
North East quarter of North East quarter of Section thirteen Township one
South of Range ten West of Willamette Meridian; also a strip of land six
rods wide off of the North side of South East quarter of North East quarter
of Section thirteen, Township one South of Range ten West of Willamette
Meridian.
Together with the appurtenances, tenements and hereditaments thereunto
belonging or in anywise appertaining.
TO HAVE AND TO HOLD unto the above named grantee and unto
its successors and assigns forever.

36

And * * * grantors above named do covenant that they are seised of
the aforesaid premises in fee simple, and that the same are free from all
encumbrances, and that they will warrant and defend the premises herein
granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Davidson 11/509 deed (Def.’s Ex. 27), conveyed fee

simple title to the railroad.

20. The Davis 72/546 Deed

The Davis 72/546 deed (Def.’s Ex. 28) provides in pertinent part:

THIS INDENTURE, made this 21st day of August 1906, between A. B.
Davis and Eva Davis, his wife, F. M. Davis and B. J. Davis, of Washington
County, Oregon, parties of the first part,[]and the Pacific Railway & Navigation
Company, a Corporation, party of the second part, WITNESSETH:
That the said parties of the first part, for and in consideration of the
sum of One Dollar ($1) and other valuable considerations, to them in hand
paid, by the party of the second part, the receipt of which is hereby
acknowledged, have granted, bargained and sold, conveyed and confirmed
and by these presents do grant, bargain and sell, convey and confirm unto
the said party of the second part, and its successors and assigns, all that
certain lot, piece, parcel and tract of land, lying, being and situate in
Washington County, Oregon, and particularly described as a portion of
Section 4, T. 2. N. R. 4.W. [sic] a strip of land 80 feet wide, being 40 feet
on each side of the center line of the Pacific Railway & Navigation
Company’s Railway, as now surveyed and located on said lands and
described as follows:-
* * * [Description] * * *
Together with all and singular the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof.

37

TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said party of the second part and
unto its successors and assigns forever. And the parties of the first part
hereby covenant to and with the party of the second part, its successors and
assigns, that the parties of the first part, [sic] are the owners in fee simple of
the tract of land above described, and the whole thereof, that said premises
are fee from all incumbrances, and that the parties of the first part, their
heirs, executors and administrators, shall warrant and forever defend the
above described and granted premises and every part and parcel thereof
against the lawful claims and demands of all persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Davis 72/546 deed (Def.’s Ex. 28), conveyed fee simple

title to the railroad.

21. The Detroit Trust 77/44 Deed

The Detroit Trust 77/44 deed (Def.’s Ex. 30) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS, That Detroit Trust
Company, a corporation organized and existing under the laws of the State
of Michigan, for and in consideration of the sum of Fifty [sic] ($50.00)
Dollars, to it paid,[]the receipt whereof is hereby acknowledged, does
hereby bargain, sell, grant, convey and confirm to Pacific Railway and
Navigation Company, a corporation and to its successors and assigns
forever, all of the following described real property situate in the County of
Washington, State of Oregon, to-wit:-
“A strip of land one hundred feet in width being fifty feet on each
side of and parallel with the center line of[]the track of the Pacific Railway
and Navigation ComPany [sic] as the same is surveyed, located and
adopted through the southeast quarter of section twenty eight (28),
Township Three (3) North, Range five (5) West of the Willamette
Meridian, said center line being describe[d] as follows:
* * * [Description] * * *
Together with the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.

38

TO HAVE AND TO HOLD unto the said Pacific Railway and
Navigation Company, and to its successors and assigns forever.

Here, the amount of consideration paid was not nominal ($50), there is no

reference to a “right of way” in the title or body of the deed, and no mention of a railroad

purpose nor does the deed contain any requirement for the railroad to build structures

such as crossings, cattle guards, or fences. As such, the court finds that the Detroit Trust

77/44 deed (Def.’s Ex. 30), granted fee simple title to the railroad.

22. The Du Bois Lumber Co. 23/298 Deed

The Du Bois Lumber Co. 23/298 deed (Def.’s Ex. 31) provides in pertinent part:

Know All Men by These Presents: That for and in consideration of
the sum of Ten ($10.00) Dollars, the receipt whereof is hereby
acknowledged, and other valuable considerations moving to it, Du Bois
Lumber Co., a corporation organized and existing under the laws of
Oregon, hereinafter called the grantor, subject to the conditions and
reservations hereinafter made, does bargain, sell, grant,[]and convey to
Pacific Railway and Navigation Company, a corporation, hereinafter called
the grantee, and to its successors and assigns forever, all of the following
described real property situate in the County of Tillamook and State of
Oregon, to wit:
A strip of land 100 feet in width, being 50 feet on each side of the
center line of the grantee’s railway as the same is now surveyed and located
through the following described real property, to wit:
The north half of the northwest quarter of Section 14, Township 3
North, Range 8 West; The northwest quarter of Section 28, Township 3
North, Range 7 West; The north half of the southwest quarter of Section 13
and the northeast quarter of the southeast quarter of Section 14, Township 3
North, Range 8 West; Also Lots one, two, three, four and six of Section 22,
Township 3 North, Range 9 West; Also the southeast quarter of the
southeast quarter and the southwest quarter of the southwest quarter of
Section 18; the north half of Section 19; the northwest quarter of Section 20
and the northwest quarter of the southeast quarter of Section 20 in
Township 3 North, Range 7 West of the Willamette Meridian, in said
county and state.

39

Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining; giving and granting unto
the grantee also the right to operate a railway line thereover.
This deed is made subject to the following conditions and
reservations:
The grantor reserves the right to construct across the land above
conveyed and across the railway track of the grantee to be constructed
thereon, a logging railroad at some suitable point, the point of crossing and
the manner of crossing to be subject to the approval of the chief engineer of
the Pacific Railway and Navigation Company and of an engineer to be
selected by Du Bois Lumber Co.; the operation of said logging road,
however, at no time to interfere with the operation by the grantee of its
railway over the above described lands.
The grantor also reserves the right to lay water pipes of any size and
kind under the right of way of the grantee, either across or along the same,
in any part of Section 22, in Township 3 North, Range 9 West of the
Willamette Meridian in said County and State, provided that where said
pipes cross under the track of the grantee, the manner of laying the same
shall be subject to the approval of two engineers, one to be selected by the
grantor and one by the grantee, and the grantor reserves the right to go upon
said right of way of the grantee, at any time, in order to lay and repair said
water pipes, or to examine the condition thereof.
In consideration of the rights and easements and grants herein
contained, the grantee agrees that the grantor shall not be held responsible
for injury to the railroad and property of the grantee, its successors and
assigns, or to the structures standing thereon, by falling or sliding timber or
logs, provided the grantor uses due care to prevent such injury, and the
grantor agrees that at all times when it is cutting timber on its lands
adjoining said right of way of the grantee, which is in danger of falling or
sliding on the railway track of the grantee, it will keep a man employed for
the purpose of flagging the trains of the grantee, to the end that accidents
shall be prevented.
To Have and to Hold unto the grantee[,] its successors and assigns
forever. And the grantor does hereby covenant to and with the grantee, its
successors and assigns, that it is seized in fee simple of the above described
premises, and that it will warrant and defend the same unto the grantee, its
successors and assigns against the lawful claims and demands of all persons
whomsoever.

The court finds that the language of this deed viewed as a whole weighs in favor

of finding that only an easement was granted. The deed uses the phrase “right of way”

40

in the body of the deed to refer to the interest being conveyed repeatedly. Indeed, the

deed itself uses the world “easement” (“In consideration of the rights and easements and

grants herein contained, . . .”). Although the deed contains language similar to that in the

Alley 5/475 deed, because the deed expressly uses the word “easement” and uses the

phrase “right of way” to refer to the interest being conveyed, the court finds that the Du

Bois Lumber Co. 23/298 deed (Def.’s Ex. 31), conveyed an easement to the railroad.

23. The Du Bois 24/40 Deed

The DuBois 24/40 deed (Def.’s Ex. 32) provides in pertinent part:

Know All Men by These Presents: That for and in consideration of
the sum of One Dollar[]($1.00), the receipt whereof is hereby
acknowledged, Willie G. Du Bois and John E. Du Bois, her husband,
hereinafter called the grantors, do hereby bargain, sell, grant, convey and
confirm to Pacific Railway and Navigation Company, hereinafter called the
grantee, and to its successors and assigns forever, all of the following
described real property situated in the county of Tillamook and state of
Oregon, to-wit:
A strip of land sixty feet in width being thirty feet on each side of the
center line of grantee’s railway as the same is last located, staked out,
surveyed and being constructed through the following described tract, to-
wit:
* * * [Describing the tract through which the strip being conveyed
runs] * * *
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To Have and to Hold to the above named grantee and to its
successors and assigns forever; the grantors confirming also to the grantee,
its successors and assigns, the right to build, maintain and operate a line of
railway thereover.
The aforesaid grantors do hereby covenant that they are the owners
in fee simple of the above granted premises and that they will forever
Warrant and Defend the same unto the said grantee, and unto its successors
and assigns against the lawful claims of all persons whomsoever.

41

For the same reasons as discussed in this court’s review of the Alley 5/475 deed,

the court finds that the language confirming that the land granted can be used for railroad

purposes does not limit the railroad’s use to only railroad purposes. Here, although the

amount of consideration is nominal ($1), there is no “right of way” language in the title

or body of the deed, nor any requirement for the railroad to build structures such as

crossings, cattle guards, or fences. Therefore, the court finds that the Du Bois 24/40

deed (Def.’s Ex. 32), conveyed fee simple title to the railroad.

24. The Easom 11/515 Deed

The Easom 11/515 deed (Def.’s Ex. 33) provides in pertinent part:

Elnora [sic] F. Easement et vir. Railway Deed.
to No. 7463.
Pacific Railway and Navigation Co.
KNOW ALL MEN BY THESE[]PRESENTS : [sic] That for and in
consideration of the sum of Eight Hundred & 00/100 DOLLARS, the
receipt whereof is hereby acknowledged, we, Elnora [sic] F. Easom and
Chas. E. Easom, wife and husband[,] do hereby bargain, sell, grant, convey
and confirm to PACIFIC RAILWAY AND NAVIGATION COMPANY,
hereinafter called the grantee, and to its successors and assigns forever, all
of the following described real property situate in the County of Tillamook
and State of Oregon, to-wit:
“A strip of land one hundred (100) feet wide being fifty (50) feet on
each side of the center line of the railway of the grantee as the same is
surveyed and located through Lots One, two, six and seven in Section thirty
six, in Township three North of Range ten West of Willamette Meridian,
except a certain three acre tract in said Lot One [sic] heretofore sold to
Felix Roy.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD unto the above named grantee and unto
its successors and assigns forever.
The grantors above named do covenant that they are seized of the
aforesaid premises in fee simple, and that the same are free from all
encumbrances, and that they will warrant and defend the premises herein

42

granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

As discussed above in the court’s analysis of the Batterson 12/163 deed (Def.’s

Ex. 5), the court does not find that the term “Railway Deed” indicates an easement in the

same way that a deed entitled “Right of Way Deed” does. Here, the amount of

consideration paid was not nominal ($800), there is no reference to a “right of way” in

the title or body of the deed, and no mention of a railroad purpose nor does the deed

contain any requirement for the railroad to build structures such as crossings, cattle

guards, or fences. As such, the court finds the Easom 11/515 deed (Def.’s Ex. 33),

granted fee simple title to the railroad.

25. The Edwards 5/453 Deed

The Edwards 5/453 deed (Def.’s Ex. 35) provides in pertinent part:

Know all men by these Presents: that we, John D. Edwards and
Celana [sic] C. Edwards, his wife, of Multnomah County, Oregon, in
consideration of one dollar to us paid by The Pacific Railway and
Navigation Company, a corporation organized and existing under and by
virtue of the laws of the State of Oregon, do hereby bargain, sell and
quitclaim unto the said corporation all that portion of the lands owned by
said John D. Edwards in lot one (1) of Sec. 22 of T. 1 N. of R. 10 W. of the
Willamette Meridian in Tillamook County, Oregon embraced in a strip of
land 100 feet in width, being fifty feet on each side of the center line of the
said corporation’s line of railway as now surveyed and located through all
the land owned by said John D. Edwards in lot one aforesaid, being
described as follows:
* * * [Description] * * *
To have and to hold unto the said corporation and its successors in
interest in fee simple forever. Conveying hereby also a right to construct,
operate and maintain a railway line along and upon said land.

43

By its express terms this deed conveyed the property “in fee simple forever.” The

court therefore finds that the original parties’ intent is clear and that the Edwards 5/453

deed (Def.’s Ex. 35), granted fee simple title to the railroad.6

26. The Friday 72/526 Deed

The Friday 72/526 deed (Def.’s Ex. 37) provides in pertinent part:

THIS INDENTURE, made this 7th day of May 1906, between John
W. Friday and Pearl Friday his wife, of Washington County, Oregon,
parties of the first part, and the PACIFIC RAILWAY & NAVIGATION
COMPANY, a Corporation, party of the se[con]d part, WITNESSETH:
That the said parties of the first part, for and in consideration of the
sum of Twenty Five Dollars ($25) to them in hand paid, by the party of the
second [p]art, the receipt of which is hereby acknowledged , [sic] have
granted, bargained and sold[,] conveyed and confirmed and by these
presents do grant , [sic] bargain and sell, convey and confirm unto the said
party of the second part, and its successors and assigns , [sic] all that certain
lot, piece, parcel and track of land, lying,[]being and situate in Washington
County, Oregon, and particularly described as a part of the South East
Quarter of Sec. 25, T 2 N. R. 4 W., Will. Mer., to-wit:-
A strip of land 160 feet wide being 120 feet on the East side and 40
feet on the West side of the center line of the Pacific Railway & Navigation
Company’s railway as now surveyed and located on said lands, and
described as follows:
Beginning at a point where the center line of said Railroad Survey
intersects the c enter [sic] of Dairy Creek, * * * Thence down the center of
said Creek South 22 degree and 40 minutes East 170 feet and thence South
13 degree and 15 minutes west 93 feet to the West line of Right of Way;
Thence South 32 degree and 18 minutes East along said Right of Way 96
feet to the center of Dairy Creek; thence North 80 degree and 22 minutes
East 955 feet to the place of beginning and containing 0.96 acres.
Together with all and singular the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof.

6
As discussed in this court’s review of the Alley 5/475 deed, the court finds that the language
confirming that the land granted “includes” the right to construct a railway does not limit the
railroad use of the property to only railroad purposes.
44

TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said[]party of the second part and
unto its successors and assigns forever.

Although this deed, has “incidental” uses of the phrase “right of way,” the court

finds that the phrase “right of way” is not used to refer to the interest being conveyed, but

only to describe the geographic location of the rail line. The deed also provides more

than nominal consideration ($25), lacks any railroad purpose language, and does not

contain any commitment by the railroad to build structures such as crossings, cattle

guards, or fences. As such, the court finds that the Friday 72/526 deed (Def.’s Ex. 37),

conveyed fee simple title to the railroad.

27. The Galvani 77/37 Deed

The Galvani 77/37 deed (Def.’s Ex. 39) provides in pertinent part:

THIS INDENTURE made this 11th day of April A. D. 1907,
between W. H. Galvani, a single man[]of Portland, Multnomah, Oregon,
party of the first part, and the Pacific Railway & Navigation Company, a
Corporation, party of the second part[,] WITNESSETH:
That the said party of the first part for and in consideration of the
sum of $1 to him in hand paid by the party of the second part, the receipt of
which is hereby acknowledged[,] has granted, bargained and sold,
conveyed and confirmed and by these presents does grant, bargain, sell
[sic] convey and confirm unto the said party of the second part and its
successors and assigns, all that certain lot, piece, parcel and tract of land,
lying, being and situate in Washington County, Oregon, and being a portion
of the Southwest quarter of Section 30, T. 3 N. R. 4 W. of the Will. Mer.,
being a strip of land 100 feet wide, being 50 feet on each side of the center
line of the Pacific Railway & Navigation Company’s railway as now
surveyed, located and adopted across said lands, said center line being
described as follows,[]to-wit
* * * [Description] * * * and containing 11.31 acres, reserving grade
farm crossings at two points to be selected by the party of the first part.
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining and the

45

reversion and reversions, remainder and remainders, rents, issues and
profits thereof.
TO HAVE AND TO HOLD all and singular, the said premises,
together with the appurtenances unto the said party of the second part and
unto its successors and assigns forever. And the party of the first part does
hereby covenant to and with the party of the second part, its successors and
assigns, forever, that the party of the first part is the owner in fee simple of
the tract of land hereinbefore described; That [sic] said tract of land is free
from all incumbrances and that the party of the first part shall warrant and
forever defend said tract of land against the lawful claims and demands of
all persons whomsoever.

This deed provided nominal consideration ($1) and the grantor reserved farm

crossings. These are factors that weigh in favor of construing the deed as granting an

easement. However, this deed precisely describes the land being conveyed with an

express reference to the amount of acreage, does not contain any “right of way” language

or any railroad purpose language. Thus, when viewing the deed as a whole, the court

finds that the grantor reserved certain crossing rights but granted a fee to the railroad.

Therefore, this court finds that the Galvani 77/37 deed (Def.’s Ex. 39), conveyed fee

simple title to the railroad.

28. The Gattrell 13/311 Deed

The Gattrell 13/311 deed (Def.’s Ex. 40) provides in pertinent part:

Know all Men by These Presents: That for and in consideration of
the sum of One ($1.00), to him in hand paid, the receipt whereof is hereby
acknowledged, F.J. Gattrell an unmarried man, hereinafter called the
grantor, does bargain, sell, grant[,] convey and confirm to Pacific Railway
and Navigation Company, hereinafter called the grantee, and to its
successors and assigns forever, a strip of land sixty (60) feet in width, being
thirty (30) feet on each side of and parallel with the center line of the
railway of the grantee as the same is now located, surveyed and staked out
through lot two (2) of section twenty nine (29) in township two (2) North
of range ten (10) West of the Willamette Meridian, in the County of
Tillamook and State of Oregon.

46

Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To have and to hold unto the [above named] grantee and to its
successors and assigns forever, confirming to the grantee likewise the right
to build, maintain and operate a railway line thereover.

For the same reasons as discussed in this court’s review of the Alley 5/475 deed,

the court finds that the language confirming that the land granted can be used for railroad

purposes does not limit the railroad’s use to only railroad purposes.. Even though the

amount of consideration is nominal ($1.00), without any “right of way” language in the

title or body of the deed nor any requirement for the railroad to build structures such as

crossings, cattle guards, or fences, the court finds that the Gattrell 13/311 deed (Def.’s

Ex. 40), conveyed fee simple title to the railroad.

29. The Goodspeed 16/487 Deed

The Goodspeed 16/487 deed (Def.’s Ex. 41) provides in pertinent part:

D. R. Goodspeed and wife RAILWAY DEED.
to NO. 5802.
Pacific Railway and Navigation Co.
KNOWN ALL MEN BY THESE PRESENTS: That for and in
consideration of the sum of One & 00/100 DOLLARS[,] the receipt
whereof is hereby acknowledged, We, [sic] D. E. Goodspeed and M. J.
Goodspeed, husband and wife, of Tillamook County, Oregon, hereinafter
called the grantors, do hereby bargain, sell, grant, convey and confirm to
Pacific RAILWAY AND NAVIGATION COMPANY, hereinafter called
the grantee, and to its successors and assigns forever, all of the following
described real property situate in the County of Tillamook and State of
Oregon, to-wit; [sic]
“A strip of land one hundred (100) feet wide being fifty (50) feet on each
side of the center line of the railway of the grantee as the same is now
surveyed and located through
The [sic] South East quarter of the North East quarter of Section
thirteen in Township one South of Range ten West of Willamette
Meridian[.]

47

Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD unto the above named grantee, and unto
its successors and assigns forever.
The grantors above named do covenant that they are seised of the
aforesaid premises in fee simple and that the same are free from all
encumbrances, and that they will warrant and defend the premises herein
granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

As discussed above in the court’s analysis of the Batterson 12/163 deed (Def.’s

Ex. 5), the court does not find that the term “Railway Deed” indicates an easement in the

same way that a deed entitled “Right of Way Deed” does. Even though the amount of

consideration is nominal ($1), without any “right of way” language in the title or body of

the deed, and no mention of a railroad purpose, nor any requirement for the railroad to

build structures such as crossings, cattle guards, or fences, the court finds that the

Goodspeed 16/487 deed (Def.’s Ex. 41), conveyed fee simple title to the railroad.

30. The Goodspeed 9/200 Deed

The Goodspeed 9/200 deed (Def.’s Ex. 42) and provides in pertinent part:

Know All Men by These Presents: That for and in consideration of
the sum of Thirty four Hundred and sixteen and 60/100 Dollars, the receipt
whereof is hereby acknowledged, we, H. F. Goodspeed and Lillian A
Goodspeed, husband and wife, of Tillamook City, Tillamook County,
Oregon: [sic] hereinafter called the grantors, do bargain, sell, grant, convey
and confirm to Pacific Railway and Navigation Company, hereinafter
called the grantee, and to its successors and assigns forever, all of the
following described real property situate in the County of Tillamook and
State of Oregon, to wit:
A strip of land fifty[](50) feet wide being twenty five (25) [feet] on
each side of the center line of the railway of the grantee as the same is
surveyed and located through the South East quarter of the North West
quarter and that part of Lot seven lying West of a certain right of way
formerly conveyed by said Goodspeed to said Pacific Railway and
Navigation Company, all lying in Section thirty, in Township one South of
48

Range nine West of Willamette Meridian, the center line of the right of way
hereby conveyed being more particularly described as follows, to wit:
Beginning at a point which is identical with Station 18 plus 84.5 on the
main line of said P.R.+N. Co., which point is located by beginning at Sta.
00 plus 00 on said main line, 4407.8 feet South and 281.5 East of the ¼
Section corner between Secs [sic] 19 and 30, T 1 S R 9 W, and running
thence N 1º 00’ East 1884.5 feet to said Station 18 plus 84.5 which is the
initial point of the right of way hereby intended to be described and
conveyed, thence following a spiral to the left a distance of 120 feet and
consuming 7º 30’ of the angle, thence following a 12º 30’ curve to the left a
distance of 609.3 feet, thence following a spiral to the left a distance of 120
feet and consuming 7º 30’ of angle, to Sta. 8 plus 49.3; thence South 89º
50’ West 1142 feet more or less to the East line of Lot two in said Section
30.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To have and to hold unto the above named grantee and unto its
successors and assigns forever.
The grantors above named do covenant that they are seised of the
aforesaid premises in fee simple, and that the same are free from all
incumbrances, and that they will warrant and defend the premises herein
granted unto the grantee aforesaid, and unto its successors and assigns
against the lawful claims of all persons whomsoever.

The court finds that the language of this deed viewed as a whole weighs in favor

of finding that a fee was granted. This deed uses the phrase “right of way” three different

times. As explained above, the use of the phrase “right of way” to describe the interest

conveyed and not the geographic location of the land conveyed is an indication of intent

to convey an easement. The deed first uses the phrase “right of way” when describing

the strip of land being conveyed as being “located through . . . that part of Lot seven lying

West of a certain right of way formerly conveyed by said Goodspeed to said Pacific

Railway and Navigation Company.” This use of the phrase “right of way” is clearly

referencing an interest other than the interest being conveyed and thus the deed’s first use

of the phrase “right of way” is “incidental.” However, this deed uses the phrase “right of

49

way” twice more. The deed grants and conveys to the railroad “[a] strip of land [of a

certain width] . . . , the center line of the right of way hereby conveyed being more

particularly described as follows, to wit: . . .” (emphasis added). As used here, the

language “the right of way hereby conveyed” supports a finding that the phrase “right of

way” is being used to describe the interest being conveyed. The deed’s final use of the

phrase “right of way” occurs in the context of its precise description of the land

conveyed, when the deed refers to “Station 18 plus 84.5” as being “the initial point of the

right of way hereby intended to be described and conveyed . . . .” (emphasis added).

Here too this language is using the phrase “right of way” to describe the interest being

conveyed by the deed.

However, the amount of consideration paid was not nominal ($3,416.60), there is

no mention of a railroad purpose nor does the deed contain any requirement for the

railroad to build structures such as crossings, cattle guards, or fences. Based on these

factors read in combination with the mixed use of the term “right of way,” the court finds

that the Goodspeed 9/200 deed (Def.’s Ex. 42), granted fee simple title to the railroad.

31. The Goodwin 81/147 Deed

The Goodwin 81/147 deed (Def.’s Ex. 43) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That for and in
consideration of Three Hundred and [Fifty] Dollars, to them in hand paid,
the receipt whereof is hereby acknowledged, Nathan J. Goodwin and M. M.
Goodwin his wife, hereinafter called the grantors, do bargain, sell, grant,
convey and confirm to Pacific Railway and Navigation Company,
hereinafter called the grantee, and to its successors and assigns forever, all
of the following described real property, situate in the County of
Washington and State of Oregon, to-wit: A strip of land One hundred feet
in width, being fifty feet on each side of the center line of the track of the

50

grantee, as the same is surveyed and located through the east half of the
southwest quarter of section twenty seven in township three north of range
five west, together with the appurtenances[,] tenements and hereditaments
thereunto belonging or in anywise appertaining, together also with the right
to maintain and operate a railroad thereover. TO HAVE AND TO HOLD to
the grantee, and to its successors and assigns forever. The grantors, above
named, do covenant with the grantee, and with its successors and assigns,
that they are seized of the said premises in fee simple, and that they will,
and their heirs, executors and administrators shall, warrant and defend the
same against the lawful claims and demands of all persons whomsoever.

For the same reasons as discussed in this court’s review of the Alley 5/475

deed, the court finds that the language confirming that the land granted can be

used for railroad does not limit the railroad’s use to only railroad purposes. Here,

the consideration is not nominal ($350), there is no reference to a “right of way” in

the title or body of the deed, nor does the deed contain any requirement for the

railroad to build structures such as crossings, cattle guards, or fences. As such, the

court finds that the Goodwin 81/147 deed (Def.’s Ex. 43), conveyed fee simple

title to the railroad.

32. The Hagen 75/279 Deed

The Hagen 75/279 deed (Def.’s Ex. 44) provides in pertinent part:

THIS INDENTURE, made this 22 day of April, 1907, between
Bridget Hagen ( a [sic] single woman) of Portland Multnomah County,
Oregon, party of the first part, and the Pacific Railway & Navigation
Company, a Corporation, party of the second part, WITNESSETH:
That the said party[]of the first part, for and in consideration of the
sum of One Dollar ($1) and other good and valuable considerations, to her
in hand paid by the party of the second part, the receipt of which is hereby
acknowledged, h[]ave [sic] granted, bargained and sold, conveyed and
confirmed, and by these presents do grant, bargain and sell, convey and
confirm unto the said party of the second part, and its successors and
assigns, all that certain lot, piece, parcel and tract of land, lying, being and
situate in Washington County,[]Oregon, to-wit:

51

Being a portion of Section 30, T. 3 N. R. 4 W. of the Will. Mer.
described as follows:
A strip of land 100 feet wide being 50 feet on each side of the center
line of the Pacific Railway and Navigation Company’s railway, as
surveyed, located and adopted across said lands, said center line being
described as follows:
* * * [Description] * * *
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders[,] rents, issues and
profits thereof.
TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said party of the[]second part and
unto its successors and assigns forever. And the party of the first part does
hereby covenant to and with the party of the second part, its successors and
assigns forever, that the party of the first part is the owner in fee simple of
the tract of land hereinbefore described; that said tract of land is free from
all incumbrances and that the party of the first part shall warrant and
forever defend said tract of land against the lawful claims and demands of
all persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Hagen 75/279 deed (Def.’s Ex. 44), conveyed fee simple

title to the railroad.

33. The Hamblin 85/284 Deed

The Hamblin 85/284 deed (Def.’s Ex. 45) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That J.M. Hamblin, an
unmarried man for and in consideration of the[]sum of One Dollars, to him
in hand[]paid, the receipt whereof is hereby acknowledged[,] does bargain,
sell, grant, convey and confirm to Pacific Railway and Navigation
Company and to its successors and assigns forever, all of the following
described real property situate in the County of Washington and State of
Oregon, to-wit: A strip of land one hundred feet in width, being fifty feet on
each side of and parallel with the center line of the track of the Pacific
52

Railway and[]NavigaTion [sic] Company, as the same is surveyed and
located through the Northwest quarter of the Northeast quarter of Section
thirty two (32) Township Three(3) [sic] North range [sic] five (5) West
Willamette Meridian.
Together with the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining.
TO HAVE AND TO HOLD to the said Pacific Railway and
Navigation Company, and to successors and assigns forever.
The aforesaid grantor J. M. Hamblin does hereby covenant that he is
the owner in fee simple of[]the above granted premises, and that he will
forever warrant and defend the same unto the Pacific Railway and
Navigation Company, its successors and assigns, against the lawful claims
of all parties whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Hamblin 85/284 deed (Def.’s Ex. 45), conveyed fee

simple title to the railroad.

34. The Handley 13/34 Deed

The Handley 13/34 deed (Def.’s Ex. 48) provides in pertinent part:

Know all Men by these Presents That for and in consideration of the
sum of Four Hundred and 00/100 Dollars, the receipt whereof is hereby
acknowledged, I, Lola L. Handley, a widow, of Tillamook, Tillamook
County, Oregon, hereinafter called the grantor, do bargain, sell, grant and
convey and confirm to Pacific Railway and Navigation Company,
hereinafter called the grantee, and to its successors and assigns forever, all
of the following described real property situate in the County of Tillamook
and State of Oregon, to wit:
A strip of land one hundred (100) feet wide being fifty (50) feet on
each side of the center line of the railway of the grantee as the same is
surveyed and located through a certain tract of land lying between the lands
of Maire Murphy and the meander line of Tillamook Bay in Lot four of
Section 21 Township 1 North Range 10 West. also [sic] through Block '21'
in the Town of East Garibaldi and the Tide land fronting and abutting upon
that portion of said Town of East Garibaldi which lies in Lot 2 of said
53

Section 21. Also through the Tide land fronting and abutting upon that
certain tract in said Section 21 known as the Ralston five acre tract [sic]
also through a certain four acre tract in Lot four of Section twenty all in
Township one North of Range ten West of Willamette Meridian [sic] the
intention being to convey unto the said grantee[,] its successors and assigns
all that portion of any and all lands now owned by me in said
Sections[]twenty and twenty one Township one North of Range ten West of
Willamette Meridian which lies within the right of way limits of the railway
of the grantee, as the same is now surveyed and located through my said
lands.
Together with the appurtenances, tenements and hereditaments
thereunto belonging or in anywise appertaining.
To have and to hold unto the above named grantee and unto its
successors and assigns forever.

The court finds that the language of this deed viewed as a whole weighs in favor

of finding that a fee was granted. Although the deed uses the phrase “right of way,” the

court finds that the phrase is used in this deed to describe the location of the property and

not the property interest being conveyed. Additionally, the amount of consideration paid

was not nominal ($400), there is no mention of railroad purposes and the deed does not

contain any requirement for the railroad to build structures such as crossings, cattle

guards, or fences. As such, the court finds that the Handley 13/34 deed (Def.’s Ex. 48),

granted fee simple title to the railroad.

35. The Hannan 72/548 Deed

The Hannan 72/548 deed (Def.’s Ex. 49) provides in pertinent part:

THIS INDENTURE, made this 21st day of August 1906, between
Henry Hannon and Ella Hannon, his wife, of Washington County, Oregon,
parties of the first part, and the Pacific Railway & Navigation Company, a
Corporation, party of the first part, WITNESSETH:
That said parties of the first part, for and in consideration of the sum
of One Dollar ($1) and other good and valuable considerations to them in
hand paid, the receipt of which is hereby acknowledged, have granted,
bargained and sold, conveyed and confirmed and by these presents do

54

grant, bargain and sell, convey and confirm unto the said party of the
second part, and its successors and assigns, all that certain lot, piece, parcel
and tract of land, lying, being and situate in Washington County, Oregon,
and particularly described as a portion of Sec. 4 and 5, T 2 N. R. 4 W., a
strip of land 80 feet wide, being 40 feet on each side of the center line of
the Pacific Railway & Navigation Company’s Railway, as now surveyed
and located on said land and described as follows:-
* * * [Description] * * *
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof.
TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said[]party of the second part and
unto its successors and assigns forever. And the parties of the first part
hereby covenant to and with the party of the second part, its successors and
assigns forever, that the parties of the first part, [sic] are the owners in fee
simple of the tract of land above described, and the whole thereof, that said
premises are free from all incumbrances, and that the parties of the first
part, their heirs, executors and administrators, shall warrant and forever
defend the above described and granted premises and every part and parcel
thereof against the lawful claims and demands of all persons whomsoever.
.
Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or

fences, the court finds that the Hannan 72/548 deed (Def.’s Ex. 49), conveyed fee

simple title to the railroad.

36. The Hannan 72/549 Deed

The Hannan 72/549 deed (Def.’s Ex. 50), which is very similar to the above

analyzed Hannan deed, provides in pertinent part:

THIS INDENTURE, made this 21st day of August 1906, between
Henry Hannon and Ella Hannon, his wife, of Washington County, Oregon,
parties of the first part, and the Pacific Railway & Navigation Company, a
Corporation, parties of the first part, WITNESSETH:
55

THAT the said parties of the first part, for and in consideration of
the sum of $1.00, to them in hand paid, by the party of the second part, the
receipt of which is hereby acknowledged, have granted, bargained and sold,
conveyed and confirmed, and by these presents do grant, bargain and sell,
convey and confirm unto the said party of the second part, and its
successors and assigns, all that certain lot, piece, parcel and tract of land,
lying, being and situate in Washington County, Oregon, and particularly
described as a portion of Section 4, T. 2 N. R. 4 W., a strip of land 60 feet
wide, and 680 feet long, adjoining the right of Way [sic] of the Pacific
Railway & Navigation Company’s Railway, on the Right , [sic] and
described as follows:-
Beginning at a point 526 5/10 feet South of and 66 5/10 feet East of
the North West corner of the South West quarter of the North West quarter
of said Sec. 4; Running thence South 2 degrees and 38 minutes West along
Right of Way, 242 5/10 feet; thence in a Southerly direction by a spiral to
left, 90 feet; thence by a 4 degree curve to the left, 355 feet; thence East
parallel to the North line of said Section 4, 61 5/10 feet; thence in a
Northerly direction on a 4 degree curve to the Right 355 feet, thence by a
spiral to right, 90 feet; thence North 2 degrees and 30 minutes East, 264
3/10 to the North line of said Hannan’s land; thence South 72 degrees and
40 minutes West, 61 1/10 feet to place of beginning and containing 0.96
acres.
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof.
TO HAVE AND TO HOLD, all and singular, the said premises
together with the appurtenances unto the said[]party of the second part and
unto its successors and assigns forever. And the parties of the * * * first
part hereby covenant to and with the party of the second part[,] its
successors and assigns forever, that the parties of the first part, [sic] are the
owners in fee simple of the tract of land a bove [sic] described, and the
whole thereof, that said premises are fee from all incumbrances, and that
the parties of the first part, their heirs, executors and administrators shall
warrant and forever defend the above described and granted premises and
every part and parcel thereof against the lawful claims and demands of all
persons whomsoever.

Even though the amount of consideration is nominal ($1), without any “right of

way” language in the title or body of the deed, and no mention of a railroad purpose, nor

any requirement for the railroad to build structures such as crossings, cattle guards, or
56

fences, the court finds that the Hannan 72/549 deed (Def.’s Ex. 50), conveyed fee

simple title to the railroad.

37. The Hannan 99/354 Deed

The Hannan 99/354 deed (Def.’s Ex. 51) provides in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That Ella Hannan
widow, of the County of Washington State of Oregon, in consideration of
the sum of Five Hundred ($500.00) Dollars to her paid by Pacific Railway
and Navigation Company, a corporation, the receipt whereof is hereby
acknowledged, has bargained and sold and by these[]presents does grant,
bargain[,] sell and convey unto said Pacific Railway and Navigation
Company[,] its successors and assigns all of the following describe
premises located in Washington County, Oregon. [sic] Beginning[]at a
point on the east line of the right of way of said Pacific Railway and
Navigation Company, 1020 feet south and 135 feet east of the northwest
corner of the southwest quarter of Section 4, Township 2 North range [sic]
4, Willamette Meridian, said point being 100 feet distant from main line
and 30 feet distant from the north leg of the wye track as now located;
running thence easterly and 30 feet distant from said wye track on 18º 30’
curve, 360 feet; thence easterly and 30 feet distant from wye track extended
260 feet; thence southerly at right angles, 60 feet; thence westerly[]at right
angles and 30 feet distant from said wye track extend 275 feet; thence
southerly and 30 feet distance from south leg of said wye track, 510 feet to
the east of said right of way, which point is 40 feet from the main line[;]
thence northerly along the said right of way on a 40º curve 400 feet; then
north 62 feet; thence northerly along the right of way on a 4º curve parallel
to the main line and 100 feet distant therefrom, 215 feet to the place of
beginning containing[]1.9 acres, together with all and singular the
tenements , [sic] hereditaments and appurtenances thereunto belonging or
in anywise appertaining. The grantee herein agrees to fence said tract herein
conveyed with a hog-tight fence. Grantor reserves the right to one private
crossing at grade with gates[]over the tract above described at a point to be
mutually agreed upon.
TO HAVE AND TO HOLD[]said premises unto the said Pacific
Railway and Navigation Company, its successors and assigns forever, and
the grantor herein does covenant to and with the above named grantee that
she is lawfully seised in fee simple of said granted premises that the same
are free from all incumbrances and that she will warrant and forever defend
the said premises, and every part and parcel thereof, against the lawful
claims and demands of all persons whomsoever.
57

The court finds that the language of this deed viewed as a whole weighs in favor

of finding that a fee was granted. First, the court has examined the “right of way”

language in this deed which is used throughout the deed four times. In each instance, the

phrase “right of way” is not being used to describe the property interest being conveyed

but to describe a location. Thus, as explained above, this deed’s use of the phrase “right

of way” does not indicate that an easement was conveyed. Although this deed contains a

commitment by the railroad to build fences, the deed provides for substantial

consideration ($500) and has no mention of railroad purposes. Accordingly for all of

these reasons this court finds that the Hannan 99/354 deed (Def.’s Ex. 51), granted fee

simple title to the railroad.

38. The Hardman 5/451 Deed

The Hardman 5/451 deed (Def.’s Ex. 52) provides in pertinent part:

Know all Men by These Presents[:] That for and in consideration of
the sum of $250 to me in hand paid, the receipt whereof is hereby
acknowledged, I[,] Florence A. Hardman, do hereby grant, sell and convey
to the Pacific Railway and Navigation Company and to its successors and
assigns forever: all that portion of

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4303380. Public record. Not legal advice.