§5.8 - Estate or Interest Conveyed

• Jurisdiction: Washington

§5.8 ESTATE OR INTEREST CONVEYED

A question may arise as to whether a deed conveys a fee simple absolute or some other lesser estate. This section discusses conveyances in which the deed does not clearly express the grantor's intent as to the interest conveyed.

(1) Presumption that fee estate conveyed

In Washington, and generally in other states, courts disfavor conditional estates. Thus, unless the language in the deed clearly indicates that a lesser estate is intended, a court will construe a grant as a fee simple absolute, without conditions or restrictions. King County v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949).

(2) Railroad right-of-way exception

One exception from this general rule, although inconsistently applied, involves the transfer of small strips of land for right-of-way purposes. In these instances, when the deed fails to clearly express the grantor's intent, it is difficult to determine whether the deed conveyed an estate in fee or merely an easement. When the deed expressly limits the purpose of the grant to a right-of-way for a railroad, courts in most states, including Washington, have held that the deed transfers an easement only, and not a fee with a restricted use. Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686 (1929).

When express limiting language in the grant is lacking, however, the results become less uniform. These cases require a court to construe the intent of the parties by considering the plain meaning of the entire instrument and, if ambiguity exists, the situation and relevant circumstances that existed at the time of the grant. Zobrist v. Culp, 95 Wn.2d 556, 627 P.2d 1308 (1981).

One court, noting that the case-by-case approach had caused "considerable disarray" in the decisions, tried to adopt a bright-line test. In Brown v. State, 130 Wn.2d 430, 924 P.2d 908 (1996), the court held that, absent express limiting language in the deed, use of a warranty form of deed alone was conclusive evidence that the grantor intended to transfer a fee estate and not an easement. The court in Brown, however, went on to discuss certain factors that, if present, might overcome the presumption that the transfer of a fee estate was intended. In a sense, this pushed the analysis back into a case-by-case consideration of discerning the parties' intent.

More recently, attempts have been made to reconcile these seemingly conflicting approaches. In Kershaw Sunnyside Ranches, Inc. v. Interurban Lines Ass'n, 156 Wn.2d 253, 126 P.3d 16 (2006), the court, in resolving the question of the character of the ownership interest in a strip of land used for a railroad right-of-way, noted that the reasoning in Brown, 130 Wn.2d 430, was not at odds with that of Morsbach, 152 Wash. 562. Rather, the Brown court refined the principle that substantial significance should be placed on the use or absence of right-of-way language, but also emphasized consideration of other relevant factors. Among the most important is whether the grant contained a reverter that would terminate the estate once the railroad use was abandoned. The Kers...