Opinion
No. 31569-6-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County. Docket No. 03-2-00213-4. Judgment or order under review. Date filed: 02/20/2004. Judge signing: Hon. Julie A. Spector.
Counsel for Appellant(s), Ronald W Erickson (Appearing Pro Se), 934 West Lauridsen # 205, Port Angeles, WA 98363.
Counsel for Respondent(s), Cheryl Ann Nielson, Attorney at Law, Atty Gen Ofc Nat Res Div, PO Box 40100, Olympia, WA 98504-0100.
James R. Schwartz, Attorney at Law, 9640 Valley View Dr SE, Olympia, WA 98513-6831.
Ronald W. Erickson appeals summary judgment quieting title to unused, abandoned railroad easements he had purchased from the Washington State Department of Natural Resources (DNR). Erickson purchased these easements from Olympic Eagle, Inc. for $1,500. We hold that because the easements granted to the Chicago Milwaukee Railroad (Chicago) in 1909 were never developed and were abandoned, they reverted to DNR; thus, Erickson, as a subsequent grantee, acquired no interest when he purchased them. We affirm.
In 1909, DNR granted Chicago easements over several sections of state land south of Forks, Washington. Chicago never developed the easements into a railroad or laid any tracks on any of the DNR easements. It also did not acquire right-of-ways over intervening private tracts of land that connected the DNR easements to create a rail corridor. During the 1920s, Highway 101 was built parallel to the DNR easements.
Chicago filed for bankruptcy in 1977. 45 U.S.C. sec.sec. 904 and 915(a) (1987) (Milwaukee Railroad Restructuring Act) authorized the reorganization court to abandon Chicago's railroad lines. Under the bankruptcy reorganization plan, Chicago sold its operating lines to another railroad. It also sold off some of its non-operating right-of-ways in Washington to non-rail companies. Jefferson County foreclosed on one of Chicago's easements located in Section 16 because of failure to pay taxes on the easement. The Jefferson County Treasurer's Office notified DNR that the property taxes on the easements were unpaid and invited DNR to attend the tax foreclosure sale. DNR told the treasurer's office that the right-of-ways were easements that it had granted to Chicago and that it was the fee owner. The treasurer's office dropped the easements from its foreclosure sale.
Chicago conveyed the DNR easements to Olympic Eagle and the Warren L. Stetson Trust, by quitclaim deeds. Chicago stopped paying property taxes on the easements. Olympic Eagle acquired the quitclaim deed in order to harvest the timber within the right-of-ways but it was not engaged in any rail activities.
Olympic Eagle held the deeds until 1998, when it conveyed the remaining interest to Ronald Erickson for $1,500. On the real estate excise tax affidavit, the Jefferson County Assessor's Office noted that the right-of-ways had already been removed from the tax rolls based on advice from the prosecuting attorney.
In September 2003, Erickson sued DNR, Olympic Eagle, and the Warren L. Stetson Trust to quiet title, for declaratory and injunctive relief, and for damages. On January 16, 2004, DNR moved for summary judgment. In its motion, it asked the trial court to quiet title in the properties in DNR and to dismiss the remainder of Erickson's claims. The trial court granted DNR's motion. Erickson appeals.
Olympic Eagle and the Warren L. Stetson Trust are not parties in this appeal.
I. Standard of Review
We review an order of summary judgment de novo. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 483, 78 P.3d 1274 (2003). We perform the same inquiry as the trial court; reviewing the facts and reasonable inferences drawn from them in the light most favorable to the nonmoving party. Smith, 150 Wn.2d at 483; Goad v. Hambridge, 85 Wn. App. 98, 102, 931 P.2d 200, review denied, 132 Wn.2d 1010 (1997). Summary judgment is appropriate only if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. CR 56(c). We grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 630-31, 71 P.3d 644 (2003).
II. DNR's Declarations
Erickson argues that there were insufficient facts to support statements made in some of DNR's affidavits, but Erickson failed to object to the affidavits DNR submitted in support of its motion for summary judgment. Where a party fails to object or moves to strike before entry of summary judgment, the party is deemed to have waived any deficiency in the affidavit. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979). Nothing in the record shows that Erickson objected or moved to strike any portion of DNR's affidavits. Thus, he waived this argument.
III. The Law of Abandonment
Erickson next argues that the trial court erred when it applied abandonment theory to the easements. He contends that evidence of nonuse is insufficient to show abandonment.
Five right-of-ways are at issue. The Laws of Washington 1901, chapter 173, granted right-of-ways to railroad companies. The legislature called these right-of-ways easements. Laws of Washington 1901, ch. 173 sec. 7.
In Washington, when a railroad easement ceases to exist, it is abandoned. Morsbach v. Thurston County, 152 Wash. 562, 568-69, 278 P. 686 (1929). Abandonment is determined by looking at several factors to infer intent. J.A. Connelly, Annotation, What Constitutes Abandonment of a Railroad Right of Way, 95 A.L.R.2d 468, 470 (1964). Generally, courts do not find abandonment merely due to nonuse. Netherlands Am. Mortgage Bank v. E. Ry. Lumber Co., 142 Wash. 204, 208, 252 P. 916 (1927). There are, however, situations where courts have found abandonment due to nonuse when other evidence shows intent to abandon the right-of-way. Zobrist v. Culp, 95 Wn.2d 556, 562, 627 P.2d 1308 (1981).
When a railroad abandons an easement, the right of possession reverts to the landowner. Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 571, 716 P.2d 855 (1986). If a subsequent grantee acquires the deed after the easement is abandoned, the grantee acquires nothing. Roeder Co., 105 Wn.2d at 571. Thus, the easements in this case reverted back to the DNR when Chicago abandoned them. Hanson Indus., Inc. v. Spokane County., 114 Wn. App. 523, 536, 58 P.3d 910 (2002), review denied, 149 Wn.2d 1028 (2003).
Here, several factors besides nonuse support a finding that Chicago abandoned its easements. First, Chicago never established a rail corridor or developed a rail line.
Furthermore, Chicago failed to acquire rights over other intervening private lands. The intervening lands were necessary to link up the easements into a rail corridor. Also, Highway 101 was constructed parallel to the easements in the 1920s.
Finally, rather than keep the easements, Chicago sold them to Olympic Eagle, a timber company. Chicago allowed Jefferson County to foreclose an easement located in Section 16 by failing to pay taxes on it. Jefferson County notified DNR that it planned to sell other DNR easements at a tax foreclosure sale. In order to avoid the foreclosure sale, Chicago sold its five remaining parcels.
In other jurisdictions, conveying a public easement for a private use abandons the easement. Brewer and Taylor Co. v. Wall, 299 Ark. 18, 769 S.W.2d 753, 756 (1989). Similarly here, nothing suggested that Olympic Eagle intended to use the easements for rail activities. In fact, Christina Nyhus, Olympic Eagle's vice president, declared that the company had no intent to use the easements for railroad purposes.
Erickson also asserts that RCW 81.36.070 authorized the sale of the right-of-way by Chicago to Olympic Eagle. But RCW 81.36.070 only authorizes the sale of a railroad to another railroad. Olympic Eagle was a timber company and not a railroad. Thus, RCW 81.36.070 is inapplicable.
Further, RCW 84.12.310 does not provide that railroads can keep an unused railroad right-of-way. Chapter 84.12 RCW deals with assessment and taxation of public utilities. RCW 84.12.310 states:
For the purpose of determining the system value of the operating property of any such company, the department of revenue shall deduct from the true and fair value of the total assets of such company, the actual cash value of all nonoperating property owned by such company. For such purpose the department of revenue may require of the assessors of the various counties within this state a detailed list of such company's properties assessed by them, together with the assessable or assessed value thereof: PROVIDED, That such assessed or assessable value shall be advisory only and not conclusive on the department of revenue as to the value thereof.
This statute only addresses the tax assessment of property held by interstate utilities. It does not discuss the legal right to either hold or abandon nonoperating rail easements. Erickson's reliance on this statute is misplaced.
The evidence establishes a long period of nonuse and several actions Chicago took supporting abandonment of the easements. Thus, the trial court did not err when it applied the law of abandonment and granted summary judgment for DNR.
IV. Franchise Law
Erickson asserts that the Laws of 1901, chapter 173 created a franchise in favor of Chicago and that the franchise could not be abandoned without legislative consent. We disagree.
A franchise is 'the right granted by the state or a municipality to an existing corporation or to an individual to do certain things which a corporation or individual otherwise cannot do.' Wash. Water Power Co. v. Rooney, 3 Wn.2d 642, 649, 101 P.2d 580 (1940) (quoting Eugene McQuillin, Municipal Corporations, sec. 1740 (2d ed. 1943)). In contrast, an easement is a privilege granted to use another's land in a specific manner. State ex rel. Shorett v. Blue Ridge Club, 22 Wn.2d 487, 494, 156 P.2d 667 (1945). The Laws of 1901, chapter 173 granted only easements in the land and nothing more.
Erickson's reliance on State ex rel. Grinsfelder v. Spokane St. Ry. Co., 19 Wash. 518, 53 P. 719 (1898), is misplaced. That case dealt with street franchises and is inapplicable to the easements granted under the Laws of 1901, chapter 173.
Erickson also has no claim to the timber located on the easements. The easements at issue in this case encumbered state trust lands. The federal government conveyed these trust lands to the state under the Enabling Act when Washington was admitted as a state. 25 Stat. 676 (1889). The legislature granted Chicago a right to use the easements for rail-related activities. Those activities included the harvesting of timber. However, once Chicago abandoned the easements, it abandoned any incidental rights to timber that went with the easements, since the land and all incidental rights reverted back to the DNR.
V. Inapplicable Statutes/Unreviewable Issues
Erickson directs our attention to several statutes, RCW 47.30.070, RCW 79.36.400, RCW 47.76.240, and county vacation statutes. None of these statutes pertain to his claim. The grant to Chicago was an easement; it was not intended to be a public highway and the railroad was never constructed for the public's benefit.
Erickson raises the following issues for the first time on appeal: (1) the constitutionality of RCW 34.05.010(3)(c); (2) whether the Chicago right-of-ways are entitled to cost-free highway crossings; (3) whether he is entitled to a finder's fee; and (4) whether he is entitled to legal fees under RCW 81.53.190.
RAP 2.5(a) allows appellate courts to review issues raised for the first time on appeal but in order to do so, the issue must fit under one of a limited group of exceptions. Those exceptions are: '(1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.' RAP 2.5(a). None of Erickson's new issues falls under an exception. Thus, these issues are not properly before this court. Hernandez v. Dep't of Labor Indus., 107 Wn. App. 190, 199, 26 P.3d 977 (2001).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.