                                                                  FILED
                                                               MARCH 17, 2020
                                                         In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

HANS HENNINGS and KRISTINA                     )        No. 36430-5-III
HENNINGS, husband and wife; and                )
MARENGO, LLC, a Washington Limited             )
Liability Company,                             )
                                               )
                     Appellants,               )
                                               )
       v.                                      )
                                               )
CHICAGO, MILWAUKEE & ST. PAUL                  )        UNPUBLISHED OPINION
RAILWAY COMPANY, a corporation of              )
the State of Wisconsin; and ALL OTHER          )
PERSONS OR PARTIES UNKNOWN                     )
claiming any right, title, estate, lien, or    )
interest in the real estate described in the   )
complaint herein,                              )
                                               )
                     Defendants,               )
                                               )
STATE OF WASHINGTON,                           )
                                               )
                     Respondent.               )

       PENNELL, C.J. — Hans and Kristina Hennings appeal a summary judgment order

dismissing their quiet title action against the State of Washington for lands previously

held by the Chicago, Milwaukee, and St. Paul Railway Company. We affirm.
No. 36430-5-III
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


                                          FACTS

       In 1907, the Walla Walla Live Stock Company (Company) did “covey and

warrant” a 100-foot wide strip of land to the Chicago, Milwaukee, and St. Paul Railway

Company (Railroad) in “fee simple title.” Clerk’s Papers (CP) at 29. Under the 1907

deed, the Company retained a determinable interest in the land that made the Railroad’s

continued interest dependent on its compliance with several listed conditions. One

condition was the Railroad

       shall complete the construction and put in operation the line of standard
       gauge railroad upon the strip of land hereby conveyed, within four years
       from the date hereof, and that a failure on their part so to do will forfeit all
       rights hereunder and the said land and privileges hereby granted will
       immediately be forfeited and revert to the [Company], its successors in
       interest or assigns, and that a failure to use and operate said line of railroad
       for any one year after its first construction and operation thereof will also
       forfeit all interest of the [Railroad], in and to said strip of land and undee
       [sic] this conveyance and the strip of land and all right and interest in and to
       anything conveyed hereby will forthwith be forfeited to and revert to the
       [Company] its successors and assigns.

Id. at 30 1 (emphasis added). Another condition required the Railroad to construct a

sidetrack, adjacent to which the Company would be able to construct and maintain a

warehouse for purposes of loading grain and produce. The deed stated that failure to



       1
       A more legible copy of this page from the 1907 deed is appended to the brief of
respondent.

                                              2
No. 36430-5-III
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


construct a sidetrack within 90 days after completion and commencement of use of the

main track would require the Railroad to pay $1,000 to the Company, and a failure to pay

that sum would result in the Railroad’s forfeiture of the strip of land, and reverter to the

Company.

       Between 1907 and 1918, the Walla Walla Live Stock Company conveyed its

property to Joseph and Marie Davin. In 1918, the Davins executed a second deed to the

Railroad. The preamble to the 1918 deed quoted many of the Railroad’s obligations from

the 1907 deed, including the two aforementioned conditions: the railroad-use-and-

operation requirement and the clause pertaining to the sidetrack. The 1918 deed then

declared the Davins

       hereby release the [Railroad], its successors and assigns from any and all
       further compliance whatsoever with the terms and provisions of those
       certain covenants contained in said deed of January 18, 1907, above quoted
       and particularly from the obligation to construct or maintain a sidetrack or
       other station facilities, or to permit the [Davins, as the Company’s
       successors] to construct and maintain a warehouse adjacent to such
       sidetrack, and from any and all claim whatsoever by reason of any failure
       on the part of the [Railroad], its successors or assigns, to construct or
       maintain such sidetrack.

Id. at 34.

       The Railroad’s Washington lands were eventually sold to the State as part of a

bankruptcy proceeding. Brown v. State, 130 Wn.2d 430, 435-36, 924 P.2d 908 (1996).


                                              3
No. 36430-5-III
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


The State converted the line into a recreational trail that is now known as the “Palouse

to Cascades Trail.” CP at 158.

       In 2009, Hans and Kristina Hennings acquired the property once owned by the

Davins. In 2017, the Henningses filed suit to quiet title to the former Railroad’s land,

now owned by the State. According to the Henningses, because the land had not been

used as a railroad for more than one year, the property had reverted back to them as the

Company’s successors in interest. The State answered the complaint, 2 counterclaimed for

declaratory judgment, and moved for summary judgment. The State argued the 1918 deed

extinguished the use-and-operation requirement contained in the 1907 deed and, thus, the

Henningses had no viable claim to forfeiture or reverter. The trial court agreed; it granted

summary judgment in favor of the State.

       The Henningses appeal.

                                        ANALYSIS

       When analyzing the meaning of a real property deed, the court’s role is to give

effect to the original parties’ intent. Newport Yacht Basin Ass’n of Condo. Owners v.

Supreme Nw. Inc., 168 Wn. App. 56, 64, 277 P.3d 18 (2012). This involves resolving


       2
        As part of its affirmative defenses, the State asserted that, if the property had
reverted back to the Henningses or their predecessors in interest, the State had since
obtained title to any contested lands by virtue of adverse possession.

                                              4
No. 36430-5-III
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


questions of fact and law: the parties’ intent is a question of fact, but the effect of those

intentions is a question of law. Id. A trial court may grant summary judgment on a deed’s

meaning when there are no genuine issues of material fact as to the parties’ intent.

Hanson Indus., Inc. v. County of Spokane, 114 Wn. App. 523, 526-27, 58 P.3d 910

(2002). In such circumstances, appellate review of the trial court’s decision is de novo.

Brown, 130 Wn.2d at 437 n.4.

       Here, as the parties agree, the meaning of the 1907 and 1918 deeds turns solely

on the language used in the two documents. On appeal, the Henningses do not dispute

the 1907 deed conveyed a fee simple title determinable with the possibility of reverter. 3

Their only argument is the 1918 deed failed to release the conditions for reverter set by

the 1907 deed. Specifically, the Henningses claim the 1918 deed did not release the

Railroad and its successors from the requirement that the land be used and operated as a

railroad. As the line has not seen a locomotive for decades, the Henningses believe the

land has reverted back to them. We disagree.




       3
         Though the Henningses rely primarily on case law related to railroad easements,
they have made no affirmative argument challenging the State’s characterization of the
interest conveyed by the deed.

                                               5
No. 36430-5-III
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


       The 1918 deed is a two-page document. It begins with a lengthy preamble, reciting

many of the 1907 deed’s requirements. The preamble quotes the 1907 deed’s railroad-

use-and-operation requirement, as well as the possibility of reverter that would result

from noncompliance. The preamble later quotes the portion of the 1907 deed regarding

the sidetrack requirement. After noting the railway line had already been constructed and

was in operation, the second page of the 1918 deed states that, in exchange for the receipt

of valuable consideration, the Davins “release [the Railroad] and its successors and

assigns from any and all further compliance whatsoever with the terms and provisions

of those certain covenants contained in said deed of [1907], above quoted.” CP at 34

(emphasis added). The 1918 deed does not specify whether the Railroad ever constructed

a sidetrack.

       By its plain terms, the 1918 deed released the Railroad from obligations set forth in

the quoted portions of the 1907 deed. These included the use-and-operation requirement.

While the sidetrack obligation was also quoted and then mentioned “particularly” by

reference, id., this reiteration of the released sidetrack obligation served merely as

emphasis. It did not eliminate the deed’s explicit inclusion of the use-and-operation

clause as a quoted provision of the 1907 deed, which was then released. To read the

1918 deed in a manner that ignores the inclusion of the use-and-operation obligation as


                                              6
No. 36430-5-111
Hennings v. Chicago, Milwaukee & St. Paul Ry. Co.


a quoted provision would violate the rule requiring us to give effect to al/ language used

in a deed whenever reasonably possible. Hodgins v. State, 9 Wn. App. 486, 492, 513 P .2d

304 (1973).

                                     CONCLUSION

      The determinable interest created by the 1907 deed was extinguished by the

unambiguous terms of the 1918 deed. The Henningses therefore hold no interest in the

land at issue in this case. The order granting summary judgment in favor of the State is

affirmed.

      A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



                                          Pennell, C.J.
WE CONCUR:




Lawrence-Berrey, J.

                                             7
