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The Surveyor and the Law

May 1, 2001
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Jerry R. Broadus
In this column I will address an interesting aspect of public rights of way. The case, from Washington State, concerns the extent of land acquired by a municipality when it condemns platted lots for a street. In this case, a tier of platted lots abutted a railroad right of way that pre-dated the plat. A city condemned the lots for a street to lie parallel with and adjoining the railroad. Later, the city claimed ownership of half the railroad right of way as well.

Northlake Marine Works v. Seattle 70 Wn. App. 491, 857 P.2d 283

Northlake Marine Works v. Seattle1

The drawing on page 50 is a copy of “Appendix A” from the reported court case. It is a surveyor’s sketch used in an affidavit of an expert witness in the case and was adopted by the appellate court to illustrate points in its opinion.

Beginning from the top, the drawing shows lots 7 through 19 of Block 32 of Denny and Hoyt’s addition to the city of Seattle, which was platted in 1888. South of those lots, the drawing shows a dedicated strip for Ewing Avenue. South of that is a 100-foot right of way designated “Railroad Right-of-Way.” The drawing shows the north 20 feet of the railroad right of way to be encumbered by part of Ewing Avenue by prescription.

The 100-foot railroad right of way pre-dated the plat. A prior owner of the land granted it in 1887, using a deed that provided:

In consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway, in the County of King, in Washington Territory, we do hereby remise, release and forever quitclaim unto said Seattle, Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through the lands in said County, described as follows, to-whit: (Legal description)...

To have and to hold the said premises, with the appurtenances, unto the said party of the second part, and to its successors and assigns forever for railway purposes; but if it should cease to be used for a railway the said premises shall revert to said grantors, their heirs, executors, administrators or assigns.2

Adjoining the south side of the railroad right of way on the drawing is a tier of lots numbered 7 through 19. These lots have an irregular south line. They occupy land existing between the south line of the railroad right of way and the shore of Lake Union in 1888. The strip was reserved from the plat, but was platted later in 1888 as Block 86 of Denny and Hoyt’s Supplemental Plat to the city of Seattle. The property involved in this dispute includes lots 10, 11, and 17 through 19 of that Block 86, and the reversionary interest in the extensions of those lots across the railroad right of way (shown shaded with dots on the drawing).

Continuing south, the drawing depicts a Block 99 of Lake Union Shorelands. This feature comes from a 1907 State Land Commissioner’s plat of the “shorelands” of Lake Union. Washington Territory became a state in 1889, the year following the recording of the two Denny and Hoyt plats. Part of the new state’s Constitution claimed the beds and shores of navigable waters. Shorelands, under the state’s scheme, lay below the ordinary high water line of the navigable water body but generally above the line of navigability. Shoreland plats were intended to encourage the construction of docks and waterways for economic use of the lakeshore, and consequently, the lots were often filled. Shoreland lots were not considered riparian to the upland lots, and could be sold by the state to parties who did not own adjacent upland properties.

The 1907 Shoreland plat conflicts with Denny and Hoyt’s Supplemental Plat in that it shows the same geographical area designated as lot 19 in Block 86 of the Denny and Hoyt’s Supplemental Plat to be part of the shoreland, i.e. below the ordinary high water line of the lake. Despite this conflict, a private person had paper title to lot 19.

The Shoreland Plat shows a strip of land, adjoining the north boundary of Block 99, as a street reservation. The south line of the reservation is the straight, diagonal line corresponding with the north line of Block 99. The north line is the irregular shoreline. The city of Seattle, in 1916, condemned Block 86 of Denny and Hoyt’s Supplemental Plat so as to gain title to the land between the shoreline and the south line of the railroad right of way, thereby allowing for the construction of a street, Northlake Way, on fill in the area shown on the drawing as “Condemned for N. Northlake Way” and “Dedicated N. Northlake Way.” This condemnation included fee simple title to lots 10, 11, 17 and 18 of Block 86, but did not cover lot 19 because the State Shoreland Plat showed that area as a street reservation already. Northlake Way was constructed in the strip, including across lot 19.

The successor to the railroad company quit-claimed the south half of the right of way to an entity called Fremont Dock in 1978. The same successor quit-claimed the north half of the right of way to Dennis Washington in 1988, and subsequently abandoned the right of way. Northlake Marine Works needed land for parking pursuant to city zoning codes, for its expanding business in the area. It leased part of the south half of the abandoned right of way from Fremont Dock for the required parking area. Northlake also purchased quit-claim deeds to lots 10, 11, and 17 through 19 of Block 86. Washington, meanwhile, quit-claimed its interest in the north half of the abandoned right of way to Inland Properties.

The city of Seattle, however, also claimed the south half of the abandoned railroad right of way. It negotiated an agreement to transfer its interest in the south half of the abandoned right of way to Inland Properties, Fremont Dock and others in exchange for an easement for a new bicycle and hiking trail. Fremont Dock then terminated its lease to Northlake, putting it in a bind for parking space.

Northlake filed this lawsuit against the city claiming that its quit-claim deeds to the lots passed a reversionary interest in the south half of the abandoned right of way to it, and that the city had no claim in the land to support its agreement. If it were to win this claim, it would own outright the land it needed for its parking. In the alternative, Northlake argued that if the city had an interest in the south half of the abandoned right of way it could not transfer it to the benefit of private entities, or that its deprivation of Northlake’s parking area amounted to an inverse condemnation of one of its property rights.

The city claimed the south half of the abandoned railroad right of way passed to it automatically when it condemned Block 86 in fee simple in 1916. Northlake claimed the same land as appurtenant to the quit-claim deeds it had received. Northlake reasoned that when the city condemned Block 86 it only received title to the platted block itself, lying south of the railroad right of way. Consequently, a reversionary interest in the south half of the railroad right of way still existed separate from the condemned land, and that reversionary interest passed to Northlake as appurtenant to its quit-claim deeds.3

The court stated that its first task was to determine the nature of the railroad’s interest in its right of way. The 1887 deed quoted above was held to transfer only an easement to the railroad company. Although not universal, this result would be expected from most state courts interpreting language such as found in the quoted deed. The main item of construction is the use of the phrase “right of way” in the granting portion of the deed, which is the initial language above the legal description in the deed. Most courts will construe such language to create an easement. The result of such a construction is that the final paragraph of the deed does not create an actual “reversion” but instead leaves an underlying fee title in the ownership of the original grantors. This underlying fee title then passed to the property owners who platted the land in 1888.4 Recording the plats resulted in the following:

The adjacent lots retained an interest in the railroad right of way under the “highway presumption” followed in this state. Under that presumption, “the conveyance of land which is bounded by a railroad right of way will give the grantee title to the center line of the right of way if the grantor owns so far, unless the grantor has expressly reserved the fee to the right of way, or the grantor’s intention to not convey the fee is clear.” ... This presumption is rebuttable, and if metes and bounds provisions in the deed describe property that extends up to but does not include the right of way, the presumption is rebutted. However, in this case, the lots were not described by metes and bounds, but merely by lot number. Therefore, the presumption applies and the abutting lots retained a reversionary interest to the center line of the right of way.5

Northlake argued that the reversionary clause in the 1887 deed created a property interest separate and distinct from the fee title to the lots themselves. Northlake pointed out that when a city exercises its right of eminent domain, it only obtains the title necessary for its intended purpose, which in this case amounted to no more than the construction of Northlake Way south of and adjoining the railroad right of way. Northlake relied on an early United States Supreme Court case6 that had limited a municipality’s condemnation to land within the boundaries of platted lots. In that case, however, the jury’s condemnation award had been specifically computed based on the value of the land enclosed within the fences around the lots. Here, the 1916 condemnation was not limited by a precise valuation or description. Instead, the court held that the 1916 condemnation passed title to the underlying fee interest in the south half of the railroad right of way the same as would be expected from a conveyance of the abutting lots in fee simple by deed.

Northlake’s second argument was that a city can not condemn land to benefit private parties. The appellate court, however, stated that a municipality may purchase property with the intent of reselling a portion of it to private parties if the resale of that portion is incidental to the municipality’s development of the parcel, and the purchase is not made with the intent to resell to a specific private party. Here, the city was obtaining a valuable public benefit in exchange for a possessory interest it owned in adjacent land. The fact that private developers were incidentally benefitted did not void the city’s action.7

As to Northlake’s third argument, the court held that Northlake’s lease of the land for parking was not the equivalent of a compensable property right. The fact that the city ordinance required Northlake to provide parking for its customers did not mean the city was responsible to provide that parking.8

Seattle had not included lot 19 of Block 86 in its 1916 condemnation. The court held that the conflict between the early maps of the area created a fact issue that had not been adequately resolved at trial, as to ownership of the south half of the abandoned railroad right of way abutting lot 19. The appellate court remanded the case to the trial court to resolve the fact issues regarding lot 19 but held against Northlake on all the other issues.

Conclusion

Condemnations have been receiving increased press of late because of the innovative ways some municipalities have used them to finance projects. The condemnation of land with the intent of reselling it for a profit has raised objections in numerous jurisdictions. In a more recent instance in the Puget Sound region, a transit authority has indicated an intent to condemn entire parcels of land despite the fact that it needs only a smaller strip for a right of way, with the purpose of selling the remains of the parcels for a profit to finance the construction within the right of way. Of course, the landowners are complaining that such an action would pay them for their land based only on a present day valuation, while the authority would sell the remaining land at a higher, inflated value later.

The common law restraint on such activities by municipalities has historically been the concept that a government may only condemn the estate it needs to do its job. Generally, a municipality needs only an easement to construct a road. If Seattle had only condemned an easement across Block 86 in the Northlake case it would not have obtained the underlying fee interest in the south half of the railroad right of way, for such an interest only passes with fee title to the lots. However, Washington and many courts will allow a municipality to condemn fee interest (assuming full value is paid for the land) if the municipality’s ordinance authorizing the condemnation clearly spells out that a fee simple interest is desired.

Surveyors are frequently asked to map out areas in rights of way that could be of benefit to commercial developers, and also to help them to obtain vacations of unused rights of way for private use. This case illustrates some of the difficulties inherent in such a task. Someone investigating the extent of the city’s ownership in Northlake Way would have to consider whether the city’s right of way included half of the railroad right of way or not, and this would most likely depend on the estate the city obtained in its condemnation. Furthermore, only a surveyor would likely discover the conflict between the old upland plats and the State Shoreland Plat. Finally, a surveyor working in such an arena would be expected to know his or her state’s view of extending the sidelines of lots into vacated or abandoned rights of way. Note, as illustrated in the surveyor’s drawing with this case, that Washington courts generally extend the sidelines of lots straight into a vacated or otherwise abandoned right of way, a result somewhat different than that found in many other states.

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