 



            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 the land owned by me 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 Florence Hardman, in
       Lot 2, Sec. 21., T. 1 N. R. 10 W., W. M. said center line being more
       particularly described as follows:
               * * * [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 its successors and assigns forever; together with the right to
       build to build, maintain and operate thereover a railway and telegraph line.



                                             58 
 
 


       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 ($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 that Hardman 5/451 deed

(Def.’s Ex. 52), conveyed fee simple title to the railroad.

       39.    The Harter 29/115 Deed

       The Harter 29/115 deed (Def.’s Ex. 53) is entitled “Warranty Deed. No. 21042.”

and provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS, That [sic] we John R.
       Harter, his wife, of the County of Tillamook in the State of Oregon, in
       consideration of the sum of Three Hundred Seventy-Five ($375.00)
       Dollars, paid by Pacific Railway and Navigation Company, a corporation
       duly organized under the laws of the State of Oregon, having its principal
       office at the City of Portland in said State, the receipt whereof is hereby
       acknowledged, have granted, bargained, sold and conveyed, and by these
       presents do grant, bargain, sell and convey unto the said Pacific Railway
       and Navigation Company, its successors and assigns, the following
       described parcel of land, situate in Tillamook County, in the State of
       Oregon, to-wit:
              Our undivided two-thirds (2/3) interest in and to that certain tract or
       parcel of land in Tillamook County, Oregon, more particularly described as
       follows:-
              All of a strip of land one hundred feet in width, being fifty feet in
       width on each side of the center line of the P. R. & N. CO. as the same is
       now located and constructed across the Northeast quarter of the northeast
       quarter of section 13, Township 1 South Range 10 West, Willamette
       Mariden, [sic], and also across the north six rods (Ninety-nine feet of the
       southeast quarter of the Northeast quarter of said Section 13. [sic] Said
       center line being more particularly described as follows:-
              * * * [Description] * * *
              The above described strip of land containing 3.80 acres more or less.

                                             59 
 
 


              It being the intention to convey our undivided two-thirds (2/3)
       interest in the right-of-way of said railroad Company [sic] as now used and
       which was acquired by us [the grantors] through deeds from Monta
       Davidson and Josie A. Deeter, together with all and singular the tenements,
       hereditaments and appurtenances thereto belonging or in anywise
       appertaining, and also all our estate, right, title and interest in and to the
       same, including dower and claim of dower.
              TO HAVE AND TO HOLD The [sic] above described and granted
       premises unto the said Pacific Railway and Navigation Company[,] its
       successors and assigns forever. And we the grantors above named do
       covenant to and with the above named grantee, its successors and assigns,
       that we are lawfully seized in fee simple of the above granted premises, that
       the above granted premises are free from all incumbrances, and that we will
       and our heirs, executors and administrators, shall warrant and defend the
       above granted[]premises, and every part and parcel thereof, 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 a fee was granted. Although the deed uses the phrase “right of way” in the

body of the deed, from context, it is clear that this deed’s “right-of-way” language does

not refer to a property interest but is being used to describe the geographic location of the

land being conveyed. Here, the amount of consideration paid was not nominal ($375),

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. As such, the

court finds that the Harter 29/115 deed (Def.’s Ex. 53), granted fee simple title to the

railroad.

     40.      The Haugen 9/204 Deed

     The Haugen 9/204 deed (Def.’s Ex. 54) provides in pertinent part:

       Thore [sic] Hagen.                                RAILWAY DEED.
                   to                                        NO. 5806.
       Pacific Railway and Navigation Co.


                                             60 
 
 


               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, Thore [sic] Hagen and Evia Jane
       Hagen, 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:
               “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 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 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

Haugen 9/204 deed (Def.’s Ex. 54), conveyed fee simple title to the railroad.

       41.      The Hobson 13/331 Deed

       The Hobson 13/331 deed (Def.’s Ex. 56) provides in pertinent part:


                                              61 
 
 


              Know all Men by These Presents: That for and in consideration of
       the sum of Three Hundred and 00/100 Dollars, the receipt whereof is
       hereby acknowledged, We, Joanna Hobson and Frank P. Hobson, wife and
       husband, 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:
              “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 three and that part of Lot two lying East
       of a certain tract in Lot two owned by Theodore Parks, all in Section
       twenty-two, Township one North of Range ten West of Willamette
       Meridian, on what is known and designated as the Coast Line Route.
              Together with the appurtenances, tenements and hereditaments
       thereunto belonging or in anywise appertaining. It is hereby understood and
       agreed that this deed shall not convey to said Railway Company any right
       of way on any lands of the grantor lying East of the curve now staked out
       and located to connect said Coast Line Route with the right of way
       heretofore conveyed by the grantors herein to said Grantee.
              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 court finds that the language of this deed viewed as a whole weighs in favor

of finding that a fee was granted. Here the use of the term “right of way” is used twice in

the body of the deed. In both instances the term “right of way” is used to describe a

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

nominal ($300), 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.

Therefore, the court finds that the Hobson 13/331 deed (Def.’s Ex. 56), granted fee

simple title to the railroad.

                                             62 
 
 


       42.     The Jeffries 85/70 Deed

       The Jeffries 85/70 deed (Def.’s Ex. 59) provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS: That Minnie Jeffries
       and George H.[]Jeffries her husband 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 North half of the Northwest quarter of
       Section Thirty (30) Township three (3) North, Range Four (4) West of
       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 Minnie Jeffries and George H. Jeffries 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 Jeffries 85/70 deed (Def.’s Ex. 59), conveyed fee simple

title to the railroad.

       43.     The Johnson 9/610 Deed

       The Johnson 9/610 deed (Def.’s Ex. 61) provides in pertinent part:

       Samuel Johnson                                    RAILWAY DEED.
                   to                                        NO. 6636.
       Pacific Railway and Navigation Company.
                                             63 
 
 


               * * * [EMPTY SPACE] * * *
                                 −−−−−−−−MAP−−−−−−−−
                  −−−−−−−−Showing RightofWay [sic] across−−−−−−−−
           −−−−−−−−A Tract of land 209½ ft sq. Sec 22 T1N.R10W −−−−−−−−
                            −−−−−−−−Scale “1400ft”−−−−−−−−
                                   * * * [Drawing or map] * * *
               KNOW ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of Twenty five and 00/100 DOLLARS, the receipt
       whereof is hereby acknowledged, I, Samuel Johnson, widower, and sole
       heir at law of Annie Johnson, deceased, of Tillamook County, Oregon,
       hereinafter called the grantnrs [sic] 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 a certain tract of land in Lot eight of section
       twenty two, Township one North of Range ten West of Willamette
       Meridian, more particularly described as follows;- [sic]
       Commencing at a stake on the meander line marked with a cross, running
       thence in a Southerly direction 209 feet, thence Westerly 209 feet, thence
       Northerly 209 feet, thence Easterly 209 feet to the place of beginning.
       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 [sic] 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 court finds that the language of this deed viewed as a whole weighs in

favor of finding that a fee was granted. Here, although the deed at the outset uses

the phrase “right of way” it is unclear if it is in reference to the interest being

conveyed or is a referencing the geographic description of the drawing that was

included which is labeled “MAP Showing Right[]of[]Way[]across A Tract of land


                                               64 
 
 


209 ½ ft. sq. Sec. 22 T1N.R.10W[.]” Additionally, 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. Furthermore, the amount of

consideration is not nominal ($25), 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. Looking at the whole of the deed, the court

finds that the Johnson 9/610 deed (Def.’s Ex. 61), conveyed a fee to the railroad.

       44.    The Jones 105/456 Deed

       The Jones 105/456 deed (Def.’s Ex. 62) provides in pertinent part:

       KNOW ALL MEN BY THESE PRESENTS: That B.H. Jones and Angie C.
       Jones,[]his wife, of Forest Grove, Oreg. [sic] in consideration of One
       Dollars, [sic] to them paid by Southern Pacific Company, a corporation
       duly organized & existing under & by virtue of the[]laws of the State of
       Kentucky[,] do hereby remise, release and forever QUITCLAIM unto the
       said Southern Pacific Company and unto its successors and assigns all their
       right , [sic] title and interest in and to the following describes parcel of real
       estate, situate in County of Washington[,] State of Oregon,[]to-wit:
               A strip of land 17 feet in width, being 8.5 feet on each side of that
       portion of the center line of a spur track now constructed at Wolcott in
       Sec.[]36,[]T. 3 North ,[]R. [sic] 5 West. W.M., which lies outside the[]100
       foot right of way of the Southern Pacific Company’s Tillamook branch
       as constructed through said Sec. 36,[]said center line being more
       particularly described as follows:             Beginning at the[]intersection of
       the West line of Sec 36, Township 3 North, Range 5 West, W.M., with the
       center line[]of Southern Pacific Company’s main track as now constructed:
       thence North 88º 31’ East on said center line 419.3; thence * * *; thence
       southwesterly on a 15º curve to the left 109 feet to a point in Southern
       Pacific Company’s Southerly line of 100 foot right of way, which point is
       the point of beginning of description of center line of 17 foot strip; thence
       continuing * * * : said strip of land containing 0.071 acres, more or less, all
       in Washington County , [sic] Oregon.            TO HAVE AND TO HOLD, the
       same, together with all and singular the hereditaments and appurtenances

                                              65 
 
 


       thereunto belonging or in anywise appertaining to the said Southern Pacific
       Company and to 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. Here, the court finds that the deed’s use of the phrase

“right of way” is not a description of the interest being conveyed but provides a

geographic location. Even though the amount of consideration is nominal ($1), without

any 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 Jones 105/456 deed

(Def.’s Ex. 62), granted fee simple title to the railroad.

       45.    The Jones 94/225 Deed

       The Jones 94/225 deed (Def.’s Ex. 63) provides in pertinent part:

       KNOW ALL MEN BY THESE PRESENTS, That we , B. H. Jones &
       Angie C. Jones, his wife, of the County of Washington, in the State of
       Oregon, in consideration of the sum of One Dollar paid by Pacific Railway
       and Navigation Company, a corporation duly organized under the laws of
       the State of Oregon, having its principal office at the City of Portland, in
       said state, the receipt whereof is hereby acknowledged, have granted,
       bargained, sold and conveyed and by these presents do grant, bargain, sell
       and convey unto the said Pacific Railway and Navigation Company, its
       successors and assigns, the following described parcel of land, situate in
       Washington County, State of Oregon, to-wit: Commencing at a point in
       Section thirty-six (36) Township three (3) North Range five (5) West of
       Willamette Meridian, on the southerly right of way line of Pacific Railway
       and Navigation Company, said point being fifty (50) feet distant [sic] at
       right angles from Engineer Station 1275+38 of the said railroad, which
       point is 740 feet, more or less, east of and 295 feet, more or less, south of
       the northwest corner of said Section thirty six (36) and the initial point of
       the following described land; thence in a southwesterly direction along said
       right of way line a distance of 88 feet, more or less, to a point fifty (50) feet
       distant at right angles to Engineer Station 1276+20; thence * * * * . Said
       described land contains an area of 0.2 o[f] [sic] an acre, more or less. TO
       HAVE AND TO HOLD the said descri bed [sic] premises unto the said
       Pacific Railway and Navigation Company, its successors and assigns

                                              66 
 
 


              forever, for the purpose of constructing and maintaining a spur track
              thereon, and if the said spur track shall be taken up or abandoned, then the
              above described and granted premises shall revert to and become the
              property of the grantors, their successors and assigns.

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

of finding that only an easement was granted. First, the deed makes clear that the

purpose of the deed is to grant an easement for the purposes of allowing the railroad to

build spur track and that if that track is taken up or abandoned the property shall revert to

the grantors. Specifically, the deed provides that “TO HAVE AND TO HOLD the said

descri bed [sic] premises unto the said Pacific Railway and Navigation Company, its

successors and assigns forever, for the purpose of constructing and maintaining a spur

track thereon, and if the said spur track shall be taken up or abandoned, then the above

described and granted premises shall revert to and become the property of the grantors,

their successors and assigns.”7 This language, together with the nominal consideration

paid ($1), indicates that only an easement was granted. Additionally, the deed uses the

phrase “right of way” twice to describe the interest that is being conveyed to the railroad.

Therefore, the court finds that the Jones 94/225 deed (Def.’s Ex. 63), conveyed an

easement to the railroad.

              46.            The Kostur 72/458 Deed

              The Kostur 72/458 deed (Def.’s Ex. 66) provides in pertinent part:

                    THIS INDENTURE, made this 1st day of December 1906, between
              A. Kostur and Anna Kostur, his wife, of Washington County, Oregon,

                                                            
7
 At oral argument, the government itself “concede[d]” that this language “that imposes and
suggests a limitation on the use of the property means that [the deed] likely conveyed an
easement.” Arg. Tr. 52:4-10.
                                                 67 
 
 


       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 $20.00 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, by 526 5/10 feet long, adjoining the right of Way [sic]
       of the Pacific Railway + Navigation Railway, on the right, 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- [sic]
               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 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.

       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 a description of the interest being conveyed but provides a

geographic location. Additionally, the amount of consideration is not nominal ($20),

there is no mention of a railroad purpose, and there is not any requirement for the railroad

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

that the Kostur 72/458 deed (Def.’s Ex. 66), granted fee simple title to the railroad.


                                              68 
 
 


       47.       The Kostur 72/459 Deed

       The Kostur 72/459 deed (Def.’s Ex. 67) is practically identical to the above

analyzed Kostur deed and provides in pertinent part:

               THIS INDENTURE, made this 1st day of December 1906, between
       A. Kostur, and Anna Kostur, 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 $30.00 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 track of land, lying, being and situate in Washington County, Oregon,
       and particularly described as a portion of Section 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 lands and described as follows:-
               * * * [Description] * * *
               Together with all and singular, the tenements, hereditaments and
       appurtenances thereunto belonging or in anywise appertaining , [sic] 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 se[c]ond 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.

       Here, the amount of consideration paid was not nominal ($30), 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


                                             69 
 
 


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

72/459 deed (Def.’s Ex. 67), granted fee simple title to the railroad.

       48.      The Large 5/536 Deed

       The Large 5/536 deed (Def.’s Ex. 69) provides in pertinent part:

                      Know All Men By These Presents:
               That for and in consideration of the sum of $250.00 to her in hand
       paid, the receipt whereof is hereby acknowledged, Mrs. J. Large does
       hereby grant, bargain, sell 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 this land of the aforesaid Mrs. J. Large in Lots 3 and 4, Sec. 21,
       T. 1 N. R. 10 W., W.M. said center line being more particularly described
       as follows, to wit:
               * * * [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 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 the Large 5/536 deed

(Def.’s Ex. 69), conveyed fee simple title to the railroad.

       49.     The Latimer 6/429 Deed

       The Latimer 6/429 deed (Def.’s Ex. 71) provides in pertinent part:


                                             70 
 
 


              KNOWN ALL MEN BY THESE PRESENTS, That I, Permelia
       [sic] A. Latimer, widow, of Tillamook County, Oregon, in consideration of
       Six Hundred and Forty (640.00) Dollars to me paid by the Pacific Railway
       and Navigation Company, a corporation organized and doing business
       within the State of Oregon, have and do hereby grant, bargain, sell and
       convey unto the said corporation, its successors and assigns, a strip of land
       across my farm now occupied by my son, William Latimer, being parts of
       Section Eighteen (18) and Nineteen (19) in Township One (1) South Range
       Nine (9) [sic] West of the Willamette Meridian, Tillamook County,
       Oregon, said strip being One Hundred feet wide and lying fifty feet wide on
       each side of the center line of the railway of the grantee, which center line
       is described so far as it affects our land, as follows:
              * * * [Description] * * *
              TO HAVE AND TO HOLD unto the said Pacific Railway and
       Navigation Company, its successors and assigns forever, also hereby
       granting to such corporation and its assigns the right to build, maintain and
       operate over said lands a rail way [sic] 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 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 the Latimer 6/429 deed

(Def.’s Ex. 71), conveyed fee simple title to the railroad.

       50.       The Marey 5/477 Deed

       The Marey 5/477 deed (Def.’s Ex. 72) provides in pertinent part:

              Know all Men by These Presents: That I, Frank Marey, unmarried, of
       Garibaldi, Tillamook County, State of Oregon, in consideration of the sum of
       $100.00, to me in hand paid, the receipt whereof is hereby acknowledged, do
       grant, bargain, sell and convey unto the Pacific Railway and Navigation Company,
       and to its successors and assigns forever, all that portion owned by me of the
       Ralston track, in Sec. 21, T. 1 N. R.10 W., W. M. embraced in a strip of land 76
       ft. wide, being 50 ft[.] on the south side of the center line of the Pacific Railway

                                             71 
 
 


       and Navigation Company’s railway, as now surveyed and located thru my
       premises, and 26 ft. on the north side of said center line, said center line being
       more particularly described as follows:
               * * * [Description] * * *
               Together with the tenements, hereditaments and appurtenances thereunto
       belonging or in anywise appertaining.
               To Have and to Hold the above described and granted premises 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, and I Frank Marey, the grantor above named, do covenant to
       and with the Pacific Railway and Navigation Company, the above named grantee,
       its successors and assigns that the above granted premises are free from all
       incumbrances, and that I will, and my heirs, executors and administrators, shall
       warrant and forever defend the above granted premises, and every part and parcel
       thereof 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

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

consideration is not nominal ($100), 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 Marey 5/477deed

(Def.’s Ex. 72), conveyed fee simple title to the railroad.

       51.       The Maroney 11/513 Deed

       The Maroney 11/513 deed (Def.’s Ex. 73) provides in pertinent part:

       Matt Maroney                                     RAILWAY DEED.
       to                                               NO. 7461
       Pacific Railway and Navigation Co.
               KNOWN ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of One & 00/100 DOLLARS, [sic] the receipt
       whereof is hereby acknowledged, I Matt Maroney, unmarried, of Garibaldi,
       in Tillamook County, Oregon, hereinafter called the grantors, [sic] do
       hereby bargain, sell, grant, convey and confirm to PACIFIC RAILWAY
       AND NAVIGATION COMPANY, hereinafter called the grantee, and to its

                                             72 
 
 


       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 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 (3) of Section twenty nine , [sic] 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. The grantors [sic] 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

Maroney 11/513 deed (Def.’s Ex. 73), conveyed fee simple title to the railroad.

       52.       The McDonald 5/473 Deed

       The McDonald 5/473 deed (Def.’s Ex. 74) provides in pertinent part:

               Know all Men by These Presents : [sic] That for and in consideration
       of the sum of $50.00 to him in hand paid, the receipt whereof is hereby
       acknowledged, J.S. McDonald unmarried, does grant, bargain, sell, 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 the lands of the
       aforesaid J.S. McDonald, in Lot 2, Sec. 22, T. 1 N.R. 10 W., W. M., said
       center line being more particularly described as follows, to wit:

                                              73 
 
 


               * * * [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 : [sic] 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 does not limit the railroad’s use to only railroad purposes. 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 the McDonald 5/473 deed (Def.’s

Ex. 74), conveyed fee simple title to the railroad.

       53.    The McMillan 11/328 Deed

       The McMillan 11/328 deed (Def.’s Ex. 75) provides in pertinent part:

       Nillus McMillan and wife                           Railway Deed.
                 to                                          No. 7181.
       Pacific Railway and Navigation Co.
               KNOW ALL MEN BY THESE PRESENTS, That for and in
       consideration of the sum of Three Hundred & 00/100 DOLLARS , the
       receipt whereof is hereby acknowledged, We, Nillus McMillan and Sarah
       McMillan, 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 Sixty [sic] (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
               Beginning at the mouth of a certain water ditch in Lot three of
       Section twenty Township two North of Range ten west, running hence in a
       South easterly direction following said ditch to its intersection with a small
       lake, thence out South across said lake to its South Bank, thence in an
                                             74 
 
 


       Easterly direction following the foot of the hill to the East line of said Lot
       three, thence North on said line to the Nehalem Riven, thence Southerly on
       line of ordinary high water mark to point of beginning, containing 10 acres
       more or less, all in Sec. 20, T. 2 N. R. 10 W. Also the north half of South
       East quarter and West half of North East quarter of Section 20, T. 2 N. R.
       10 W. all being situated in Tillamook County, Oregon.
           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. Here, the amount of

consideration is not nominal ($300), there is no mention of “right of way” in the title or

body of the deed, 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 McMillan 11/328 deed (Def.’s Ex. 75), conveyed fee simple title to the railroad.

       54.      The McMillan 11/83 Deed

       The McMillan 11/83 deed (Def.’s Ex. 76) provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS:
                  That for and in consideration of the sum of Three Hundred
       no/100 Dollars to them in hand paid, the receipt whereof is hereby
       acknowledged, Nillus McMillan and Sarah McMillan, 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 Tillamook and State of Oregon, to-wit:
              Beginning at Stone “A” the initial point in the survey of the
       Townsite of Garibaldi in Section Twenty-one, [sic], Township One [sic]

                                             75 
 
 


       North of Range Ten [sic] West of the Willamette Meridian and running
       thence north sixteen degrees 0’ West twenty-five feet; thence East along the
       right-of-way line on a curve to the left with a radius of 714.5 feet a distance
       of 62.5 feet; thence on a spiral to the left 57.5 feet; thence North sixty-four
       degrees thirty minute east seventy feet to the east line of said McMillan’s
       land; thence South sixteen degrees 0’ east 46.5 feet to the southeast corner
       of said McMillan’s land; thence South seventy-four degrees 0’west[]along
       said McMillian’s south line 187 feet to the place of beginning and
       containing 14/100ths. acres.
               Together with all the appurtenances, hereditaments, and tenements
       thereunto belonging or in anywise appertaining.
               TO HAVE AND TO HOLD to the above named grantee, and to its
       successors and assigns forever, together with the right to build, maintain
       and operate a railway line thereover. 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, except only the Astoria & Columbia River Railroad Company
       under a certain contract or option given by the grantors to said last named
       corporation.

       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. Additionally, the

court finds that the use of the phrase “right of way” in this deed is not describing the

interest conveyed but rather the geographic location. Additionally, the amount of

consideration is not nominal ($300), and there is no requirement for the railroad to build

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

McMillan 11/83 deed (Def.’s Ex. 76), conveyed fee simple title to the railroad.

       55.       The Mendenhall 72/550 Deed

       The Mendenhall 72/550 deed (Albright, Def.’s Ex. 78) provides in pertinent part:

                                         Exhibit A

                                             76 
 
 


                                      [Map or drawing]
                           Plat of Right of Way across Lands of
                                      C. J. Mendenhall
                                            ****
              KNOW ALL MEN BY THESE PRESENTS, That We, C. J.
      Mendenhall, unmarried of Washington County, Oregon, and Edward
      [M]endenhall, of Portland, Multnomah County, Oregon, in consideration of
      the sum of One Hundred and Thirty Dollars ($130) to us paid, and in
      consideration of the conditions hereinafter imposed, do hereby bargain, sell,
      and convey unto the Pacific Railway and Navigation Company, a
      Corporation, and unto its successors and assigns forever, all of the
      following described real property, lying, being and situate in Washington
      County, Oregon, and described as follows: to-wit:- [sic]
              A part of Section 4, 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, as now surveyed and located on said lands,[]and
      described as follows:-
              * * * [Description] * * *
              A plat of which Right of Way is hereto attached, marked “A” and
      made a part hereof.
              TO HAVE AND TO HOLD said land unto the said Pacific Railway
      & Navigation Company, and unto unto [sic] its successors and assigns, as a
      Right of Way for it and its successors, with the agreement and providing
      that said Grantee, [sic] its successors a[n]d assigns , [sic] shall perpetually
      maintain lawful fences on each side of the said Right of Way hereinbefore
      described, and one cattle guard crossing at such point upon said Right of
      Way as the Grantors or their heirs or assigns shall designate, within thirty
      (30) days from the date of the delivery of this deed. And the Grantee , [sic]
      C. J. Mendenhall does for himself[,] his heirs and assigns, covenant to and
      with said Pacific Railway & Navigation Company, its sucesso[r]s and
      assigns, that said tract of land hereinbefore described is free from all
      incumbrances, save and except a lease in favor of one A. B. Davis, for
      whom said Davis cleirs [sic] the lands hereby conveyed but which if it does
      cover such land is to that extend and in some other respects is at least the
      result of carelessness on part of lessee and mistake and from which lease
      the grantee must secure a release at its own expense and that C. J.
      Mendenhall will forever warrant and defend the title to said premises unto
      the said Pacific Railway & Navigation Company, it successors and assigns
      forever.

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

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

                                            77 
 
 


several different times. The deed includes a drawing which it labels “Exhibit A” and

describes as “Plat of Right of Way across Lands of C. J. Mendenhall.” In this context,

this deed, like the Johnson 9/610 deed (Def.’s Ex. 61) previously discussed, is using the

label “Right of Way” in a way that is akin to the way in which a deed entitled “Right of

Way” deed uses the phrase “Right of Way” in its title to indicate an interest in property.

This is further confirmed when the deed states “A plat of which Right of Way is hereto

attached, marked ‘A’ and made a part hereof.”

       The deed also contains the following language “TO HAVE AND TO HOLD said

land unto the said Pacific Railway & Navigation Company, and unto unto [sic] its

successors and assigns, as a Right of Way for it and its successors, . . . .” The government

agrees that this “deed’s use of the phrase ‘right of way’ in the habendum clause, rather

than as part of the geographic description of the land conveyed, makes clear that it is

imposing a limitation on the use of the land.” Def.’s Objs. at 4 n.1 (quoting Bouche, 293

P.2d at 209). This deed grants the estate to the railroad “as a Right of Way.” This

language indicates the purpose for which the land is to be used and limits the estate being

conveyed. The deed also contains the phrases “said Right of Way hereinbefore

described” and “upon said Right of Way[,]” both of which are using the phrase “Right of

Way” to refer to the interest being conveyed. Furthermore, the deed contains a

commitment by the railroad to build and maintain fences and a cattle guard crossing.

       Although this deed has substantial consideration ($130), viewed in light of the

deed as a whole, the factors weighs in favor of construing this deed to have conveyed



                                             78 
 
 


only an easement. Therefore, the court finds that the Mendenhall 72/550 deed (Def.’s,

Ex. 78), conveyed an easement to the railroad.8

              56.            The Noland 74/108 Deed

              The Noland 74/108 deed (Def.’s Ex. 79) provides in pertinent part:

              Know all Men by these Presents, That
                       Mrs Lena Noland
                of      Portland      xxxxxxxx     State of Oregon, in consideration of
              Seventy nine and twenty, one Hundredths ($79.20/100)             DOLLARS,
              to me paid by Pacific Railway and Navigation Company
              of Portland              xxxxxx                     State of Oregon, * * *
              * * * * * has bargained and sold, and by these presents does grant,
              bargain, sell and convey unto said
              Pacific Railway Navigation Company[,] is [sic] 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 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 the south 1/2 of N W of Sec. 30.
              [sic] T [sic] 3 N. R. 4 W- [sic] W. M. said center line being described as
              follows: * * *[Description] * * * and containing 7.89 acres.
              Together with all and singular the tenements, hereditaments and
              appurtenances thereto belonging or in anywise appertaining and also all
                             her 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 * * * and assigns forever. And
                          Mrs. Lena Noland[,]
              grantor above named do es [sic] covenant to and with Pacific Railway and
              Navigation Company
              the above named grantee[,] is [sic] successors and assigns that she is
              lawfully seized in fee simple of the above granted premises, that they are
              free from all incumbrances
              * * * * [Blank Space] * * *


                                                            
8
     The
     government also later agreed this deed conveyed an easement to the railroad. See
Def.’s Objs. at 4 n.1. 
                                                               79 
 
 


                  and that she will and her 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).

       Here, the amount of consideration paid was not nominal ($79.20), 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 Noland

74/108 deed (Def.’s Ex. 79), granted fee simple title to the railroad.

       57.      The Ostrander 9/205 Deed

       The Ostrander 9/205 deed (Def.’s Ex. 80) provides in pertinent part:

       Chas. [sic] Ostrander and wife                     Railway Deed.
       to                                                  No. 5807.
       Pacific Railway and Navigation Co.
               KNOW ALL MEN BY THESE PRESENTS, That for and in
       consideration of the sum of Five Hundred Fifty & 00/100 DOLLARS[,] the
       receipt whereof is hereby acknowledged, we, Charles R. Ostrander and
       Frances A. Ostrander, husband and wife, of Bay City, in the County of
       Tillamook and State of 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:
               “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 that certain tract of land described as
       follows:- * * * [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 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

                                             80 
 
 


       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. Here, the amount of

consideration is not nominal ($550), there is not any “right of way” language in the title

or body of the deed, 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 Ostrander 9/205 deed (Def.’s Ex. 80), conveyed fee simple title to

the railroad.

       58.       The Paquet 5/316 Deed

       The Paquet 5/316 deed (Def.’s Ex. 81) provides in pertinent part:

       Fred Paquet                                              No. 2853
        to                                                   Right of Way
       Pacific Railway + Navigation Company                      $202.60
              Know All Men by These Presents: That for and in consideration of
       the sum of $202.60/100 to me in hand paid, the receipt whereof is hereby
       acknowledged, I, Fred Paquet, unmarried, do hereby grant, bargain, sell and
       convey to the Pacific Railway and Navigation Company, and to its
       successors and assigns forever, all those portions of the land owned by me,
       embraced in a strip of land 100 ft. wide, being 50 ft. on each side of the
       center line of the railway to the Pacific Railway and Navigation Company,
       as now surveyed, located and adopted thru the lands of the aforesaid Fred
       Paquet, in Lot 1, Sec. 22 T 1 N.R.10 W., W. M. said center line being more
       particularly described as follows: * * * [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.


                                             81 
 
 


       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 deed does use

the term “Right of Way” in its title but not in the text of the deed. In addition, the deed

provides for substantial consideration ($202.60) and does not contain any requirement for

the railroad to build structures such as crossings, cattle guards, or fences. Taken all of

these factors into consideration, the court finds that the Paquet 5/316 deed (Def.’s Ex.

81), conveyed fee simple title to the railroad.

       59.       The Petrzilka 72/203 Deed

       The Petrzilka 72/203 deed (Def.’s Ex. 83) provides in pertinent part:

               THIS INDENTURE, made this 1st day of August 1906, between
       Frank Petrzilka and Mary Petrzilka, his wife, of Washington County,
       parties of the dirst [sic] 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 Hundred Dollars ($100) 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,[]forever, all that certain Lot,
       [sic] piece, parcel and track of land, lying, being and situate in Washington
       County, Oregon, and particularly described as follows, to-wit:- 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, located, and established across the following described lands,;
       The North West quarter of the North West Quar ter [sic] of Section 4
       T.2.N.R.4 W. of the Will.Mer. [sic]
       and also the following described tract of land, to-wit;-Beginning at the
       south [sic] West corner of Section 33, T.3.N.R.4.W. and running thence
       East 14 rods; thence Northwesterly 42 rods to a point 4 rods East of the
       west line of said section [sic] 33; thence Northeasterly 42 rods to a point 14
       rods East of the west line of said Section 33,;[]thence [sic] West 14 rods;

                                              82 
 
 


       thence South 80 rods to the place of beginning, said strip of land containing
       4.31 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 said parties of the first part,
       for themselves, their heirs, executors and administrators do covenant to and
       with the party of the second part, its successors and assigns forever, that the
       parties of the first part are the owners in fee simple of the above described
       and granted premises; That [sic] said premises and t he [sic] whole thereof
       are fee from all incumbrances, and that said parties of the first part, their
       heirs, executors and administrators shall warrant and forever defend said
       premises and the whole thereof against the lawful claims and demands of
       all persons whomsoever.

       Here, the amount of consideration paid was not nominal ($100), 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 Petrzilka

72/203 deed (Def.’s Ex. 83), granted fee simple title to the railroad.

       60.       The Pongratz 72/547 Deed

       The Pongratz 72/547 deed (Def.’s Ex. 85) provides in pertinent part:

              THIS INDENTURE, made this 30 [sic] day of June 1906, between
       Joseph Pongratz and Monika Pongratz, 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 $85.00 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,


                                              83 
 
 


        lying, being and situate in Washington County, Oregon, and particularly
        described as a part of Sec. 4, T. 2 N. R. 4 W.,[]to-wit:
            A strip of land 80 feet wide, being 40 feet on each side of the center line
        of the Pacific Railway and Navigation Company 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.
                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 do
        hereby covenant that they are the owners in fee simple of the tract of land
        above described; That [sic] tract of land is free from all incumbrances and
        that they will and their heirs, executors and ad ministrators [sic] shall
        warrant and forever defend said tract of land 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 ($85), 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 Pongratz

72/547 deed (Def.’s Ex. 85), granted fee simple title to the railroad.

        61.     The Portland Timber Co. 107/610 Deed

        The Portland Timber Co. 107/610 deed (Def.’s Ex. 86) provides in pertinent

part:

                KNOW ALL MEN BY THESE PRESENTS: That for and in
        consideration of the sum of Ten Dollars to it in hand paid, the receipt
        whereof is hereby acknowledged, and other valuable considerations moving
        to it, PORTLAND TIMBER COMPANY, hereinafter calleD [sic] the
        grantor, does bargain, grant, convey and confirm to Pacific Railway And
        [sic] 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

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       land one hundred feet in width, being fifty feet on each side of the center
       line of the grantee’s railway as the same is surveyed, staked out and located
       through the northwest quarter of section 34; the west half of the northwest
       quarter; the northeast quarter[]of the northwest quarter, and the northwest
       quarter of the northeast quarter of section 32; also the north half of the
       north half of section 31, all in township three north of range six west of the
       Willamette Meridian.
       Together with the appurtenances, tenements and hereditaments thereunto
       belonging, or in any wise [sic] appertaining, with the right to construct,
       maintain and operate a railway thereover.
       TO HAVE AND TO HOLD to the grantee and to its successors and assigns
       forever. And the grAntor [sic] does covenant with the grantee that it will
       warrant and defend the premises above granted unto the grantee, and to its
       successors and assigns against the lawful claims and demands of all persons
       whomsoever claiming or to claim under the grantor.

       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 ($10.00), 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 Portland Timber

Co. 107/610 deed (Def.’s Ex. 86), conveyed fee simple title to the railroad.

       62.    The Portland Timber Co. 90/50 Deed

       The Portland Timber Co. 90/50 deed (Def.’s Ex. 87) provides in pertinent part:

              Know All Men by These Presents, That the Portland Timber
       Company, an Oregon corporation, in consideration of the sum of Nine
       Hundred and Four Dollars and twenty cents ($904.20) ,[]paid [sic] by the
       Pacific Railway and Navigation Company, the grantee herein, receipt
       whereof is hereby acknowledged, does grant, bargain, sell, convey and
       confirm to the grantee herein, Pacific Railway and Navigation [C]ompany,



                                             85 
 
 


       its successors and assigns forever, all of the following described real estate,
       situate in the County of Tillamook, State of Oregon, to-wit:
               Beginning at a point where the East line of Section 3, Township 3
       North, Range 6 West W. M. , [sic] interests the center line of Pacific
       Railway and Navigation Company’s railroad, said point being 756 feet
       south of the northeast corner of said Section 35, and being identical with
       Station 1749+65 of said company’s railway survey numbers, running
       thence along said center line in a southwesterly direction * * * [description]
       * * * * thence north along said east line, a distance of 50 feet to the place of
       beginning, saving and excepting a right of way 100 feet in width through
       the above des[c]ribed land granted by deed of the grantor herein to Pacific
       Railway and Navigation Company, dated June 30, 1909, and containing
       exclusive of said right of way,[]6 acres.
               Same being hereby granted for all proper railroad, depot and station
       ground purposes, the intent of this provision to prevent the grantee herein
       from platting a townsite on the said land. TO HAVE AND TO HOLD the
       above described premises unto said Pacific Railway and Navigation
       Company, and to its successors and assigns forever. It is
       understood,[]however, that the grantor herein reserves to itself all of the
       line trees situate upon the exterior lines of the above described premises.

       This deed specifically states that the land being conveyed in the deed is “hereby

granted for all proper railroad, depot and station ground purposes, the intention of this

provision to prevent the grantee herein from platting a townsite on said land.” This

language specifies the purpose for which the land is being granted and for which the land

is to be used and thus indicates that only an easement was granted. The deed also

provides that “the grantor herein reserves to itself all of the line trees situate upon the

exterior lines of the above described premises[,]” which further indicates that an

easement was granted. See First Nat’l Bank v. Townsend, 555 P.2d 477 (Or. App. 1976)

These express provisions establish the original parties’ intent to convey an easement. As

such, although the deed provides for substantial consideration ($904.20), the court finds




                                              86 
 
 


that the Portland Timber Co. 90/50 deed (Def.’s Ex. 87), conveyed an easement to the

railroad.

       63.    Prickett 72/538 Deed

       The Prickett 72/538 deed (Def.’s Ex. 88) provides in pertinent part:

               THIS INDENTURE, made this 18th day of May 1906, between J. L.
       Prickett and Belle Prickett 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 parties of the first part for and in consideration of the sum
       of Two Hundred Dollars ($200) to them in hand paid by the party of the
       second part, the receipt whereof 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 ,
       [sic] and particularly described as a portion of Section 25, T. 2 N. R. 4 W.
       Will. Mer., to-wit:-
               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 Railroad, 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 [sic] and singular, the said
       premises together with the appurtenances unto the said party of the second
       part and u[n]to its successors and assigns forever.

       Here, the amount of consideration paid was not nominal ($200), 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 Prickett

72/538 deed (Def.’s Ex. 88), granted fee simple title to the railroad.


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       64.     The Rinck 77/454 Deed

       The Rinck 77/454 deed (Def.’s Ex. 90) provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of One Dollar to him in hand paid, the receipt
       whereof is hereby acknowledged, and other valuable considerations moving
       to him, J. H. Rinck, an unmarried man, hereinafter called the grantor, does
       hereby bargain, sell, grant, convey and confirm to Pacific Railway and
       Navigation Company, hereinafter called the grantee, and to its successors
       and assigns forevEr, [sic] all of the following described real property situate
       in the County of Washington and State of Oregon, to wit:
              “A strip of land 100 feet wide, being 50 feet on each side of the
       centereline [sic] of the track of the Pacific Railway and Navigation
       Company as the same is constructed through the North half of the northeast
       quarter of Section 32, in township 3 North of range 4 west of the
       Willamette Meridian containing 3.17 acres.”
              Together with the appurtenances, tenements and hereditaments
       thereunto belonging or in anywise appertaining, granting also the grantee
       the right to operate a railway line thereover as well as the fee of the
       aforesaid premises. The grantor does covenant that he is seased [sic] of the
       aforesaid premises in fee simple and that the same are free from all liens
       and encumbrances, and that he will and his heirs, executors and
       administrators shall forever 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

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

deed provides that it grants “the right to operate a railway line thereover as well as the fee

of the aforesaid premises.” Clearly the parties intended to convey fee simple, 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

that the Rinck 77/454 deed (Def.’s Ex. 90), granted a fee to the railroad.

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       65.       The Rockaway Beach 12/342 Deed

       The Rockaway Beach 12/342 deed (Def.’s Ex. 91) provides in pertinent part:

               KNOW ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of One & 00/100 DOLLARS, the receipt whereof
       is hereby acknowledged, Rockaway Beach Company, a Corporation
       organized and existing under the laws of the State of Oregon and First Bank
       Trust Company, a corporation organized and existing under the laws of the
       State of Oregon, hereinafter called the grantors, [sic] 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 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 four of Section thirty two in Township two North of Range ten
       West and a strip of land twenty feet wide off the North end of Lot one of
       Section five, Township One North of Range two 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 [sic] 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.

       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 Rockaway Beach 12/342 deed (Def.’s Ex. 91), conveyed

fee simple title to the railroad.




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       66.    The Rowntree 11/618 Deed; The Sampson 11/617 Deed;
              The Sampson 11/619 Deed; and The Sampson 11/620 Deed

       The Rowntree 11/618 deed (Def.’s Ex. 92); the Sampson 11/617 deed (Def.’s

Ex. 95); the Sampson 11/619 deed (Def.’s Ex. 96); the Sampson 11/620 deed (Def.’s

Ex. No. 97) are virtually identically and thus the court will analyze these deeds together.

Each of these four deeds contains, with minor variations, the following language:

       [Name of grantor(s)]
       to                                                 Deed.
       Pacific Railway and Navigation Co.                 No. ####.
                  Know All Men By these Presents, That Whereas [name of
       grantor] is the owner in fee simple of the following described real proper,
       situated in the County of Tillamook and State of Oregon, to-wit:
               * * * [Description of grantor’s entire property, not just strip being
       conveyed] * * *
                       NOw [sic] Therefore, in consideration of the sum of Seventy
       five and 00/100 Dollars, to [pronoun] in hand paid by the Pacific Railway
       and Navigation Company, the receipt whereof is hereby acknowledged,
       [pronoun], the said [name of grantor(s)], do hereby grant, bargain, sell and
       convey unto said Pacific Railway and Navigation Company, its successors
       and assigns, so much of said above described tract of land as lies within the
       right of way limits of said Pacific Railway and Navigation Company, said
       right of way being a strip of land sixty feet wide, to-wit: thirty feet on each
       side of the center line of the railway of the grantee, as the same is surveyed,
       staked out and located through said tract, and said center line running on a
       tangent North six degrees and fifty eight minutes East from a point which is
       fifty four feet West of the corner common to Section 5, 6, 7 and 8 in
       TOwnship [sic] one North of Range ten West, through and beyond the land
       described herein.
               To have and to hold the above described and granted premises unto
       the said Pacific Railway and Navigation Company, its successors and
       assigns forever.
               And [pronoun], the said [name of grantors] The grantors above
       named do covenant to and with said Pacific Railway Company, its
       successors and assigns, that [pronoun] [is] the owner in fee simple of said
       premises, that they are free from all incumbrances, and that [pronoun] will
       and [possessive pronoun] heirs, executors, administrators and assigns shall
       warrant and forever the same against the lawful claims and demands of all
       persons whomsoever.

                                             90 
 
 



       The court finds that the language of these deeds viewed as a whole weighs in favor

of finding that the parties intended to grant a fee to the railroad. These deeds use the

phrase “right of way” twice. It is clear from the context of these deeds that the phrase

“right of way” is not intended to describe the interest granted but rather the geographic

location of the land. Additionally, the amount of consideration paid was not nominal

($75), there is no mention of a railroad purpose, 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 Rowntree 11/618 deed (Def.’s Ex. 92), the Sampson

11/617 deed (Def.’s Ex. 95), the Sampson 11/619 deed (Def.’s Ex. 96), and the

Sampson 11/620 deed (Def.’s Ex. No. 97), all granted fee simple title to the railroad.

      67.     The Roy 11/516 Deed

      The Roy 11/516 deed (Def.’s Ex. 93) provides in pertinent part:

       Felix Roy                                                 Railway Deed.
       to                                                        No. 7464.
       Pacific Railway and Navigation Co.
               KNOWN ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of One Thousand & 00/100 DOLLARS, the
       receipt whereof is hereby acknowledged, I Felix Roy, a bachelor of
       Tillamook County, Oregon, hereinafter called the grantors, [sic] 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 Lot three of Section 36 Township 3 North of
       Range 9 West of W. M. Lots two, three and thirteen of Section 31,
       Township 3 North of Range 9 West of W. M. Also through a certain tract
       described as follows:- Beginning at the meander post on the North bank of
       Nehalem River on the line between Section 31 Tp. 3 N. Range 9 West and

                                             91 
 
 


       Section 36 Tp. 3 North Range 10 West, running thence North 30 rods,
       thence West 208 feet, thence South to Nehalem River, thence in an Easterly
       direction following the North bank of Nehalem River to place of beginning
       in Sec. 36 Tp. 3 N. R. 10 W. of W.M.
               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 [sic] 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 [sic] 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. Here, the amount of

consideration is not nominal ($1,000), there is no use of the “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. As such, the

court finds that the Roy 11/516 deed (Def.’s Ex. 93), conveyed fee simple title to the

railroad.

       68.    The Rupp 13/245 Deed

       The Rupp 13/245 deed (Def.’s Ex. 94) provides in pertinent part:

               Know all Men by These Presents: That for and in consideration of
       the sum of Ten Dollars ($10.00), the receipt whereof is hereby
       acknowledged, and other valuable considerations moving to them, John J.
       Rupp and Betty N. Rupp, of Saginaw, Michigan, hereinafter called the
       grantor, does bargain, grant, convey and confirm to Pacific Railway and
       Navigation Company, hereinafter called the grantee, a strip of land one
       hundred (100) feet in width, being fifty (50) feet on each side of the center
       line of the railway of the grantee, as the same is surveyed and located


                                             92 
 
 


       through the following described real property, situate 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.
               The grantors covenant with the grantee that they will warrant and
       defend the premises herby granted against the lawful claims and demands
       of all persons whomsoever claiming the same by, through or under the
       grantor. [sic]

       Here, the amount of consideration is 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

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 Rupp 13/245 deed

(Def.’s Ex. 94), conveyed fee simple title to the railroad.

       69.       The Schrader & Groat 11/354 Deed

       The Schrader & Groat 11/354 deed (Def.’s Ex. 98) provides in pertinent part:

         Paul Schrader et ux
       & John Groat et ux                                 Railway Deed.
             to                                              No. 7235.
       Pacific Railway and Navigation Co.
               KNOWN ALL MEN BY THESE PRESENTS, That for and in
       consideration of Two Hundred & 00 DOLLARS, the receipt whereof is hereby
       acknowledged, we, Paul Schrader and Lillie R. Schrader[,] husband and wife, and
       John Groat and Lillian A. Groat , [sic] 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 sixty feet wide being thirty feet on each side of the center
       line of railway of the grantee as the same is surveyed and located through Lot one
       of Section five, in Township One North of range ten West of Willamette Meridian,

                                             93 
 
 


       save and except seven acres off the South[]and a strip of land twenty feet wide off
       the North end of said Lot one.
              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 the term “Railway Deed” indicates an easement in the

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

consideration that is not nominal ($200), does not use the phrase “right of way” in the

title or body of the deed, and does not mention a railroad purpose, nor any requirement

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

court finds that the Schrader & Groat 11/354 deed (Def.’s Ex. 96), conveyed fee simple

title to the railroad.

       70.     The Sibley 23/301 Deed

       The Sibley 23/301 deed (Def.’s Ex. 100) is entitled “14999 Warranty Deed” and

provides in pertinent part:

              Know all Men by These Presents: That for and in consideration of
       the sum of Four Hundred Ninety Four ($495.00) Dollars, the receipt
       whereof is hereby acknowledged, Hiram W. Sibley and Margaret D. Sibley,
       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 Tillamook and State of
       Oregon, to wit:


                                             94 
 
 


               A strip of land one hundred feet wide, being fifty feet on each side of
       the center line of the Pacific Railway and Navigation Company’s railway as
       located and staked out over the south half of the southeast quarter and lot 2
       of section 9, lot 1 of section 15 and lots 1 and 2 of section 16, all of
       Township 3 North, range 8 West, Willamette Meridian, containing nine and
       seventeen one hundredths (9.17) acres, said center line being more
       particularly described as follows:-
               * * * [Description] * * *
               Also a strip of land one hundred feet wide, being fifty feet on each
       side of the center line of the Pacific Railway and Navigation Company’s
       railway as located and staked out over the northeast quarter of section 14,
       township 3 North range 8 West, Willamette Meridian, containing four and
       seventy six one hundredths (4.76) acres, said center line being more
       particularly described as follows:-
               * * * [Description] * * *
               Also a strip of land one hundred feet wide, being fifty feet on each
       side of the center line of the Pacific Railway and Navigation Company’s
       railway as located and staked out over lot 1 of section 8 and lots 1 and 2 of
       section 17, all of township 3 North, range 8 West, Willamette Meridian,
       containing seven and seventy eight one hundredths (7.78) acres, said center
       line being more particularly described as follows:-
               * * * [Description] * * *
               Together with the appurtenances, tenements and hereditaments
       thereunto belonging or in anywise appertaining, confirming to the grantee
       specifically the right to build, maintain and operate a railway line thereover.
               To Have and to Hold unto the above named grantee and unto its
       successors and assigns forever.
               The grantors do warrant with the grantee that they will warrant and
       defend the premises hereby granted against the lawful claims and demands
       of all persons claiming under the grantors.

       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 ($495), 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




                                             95 
 
 


as crossings, cattle guards, or fences. Therefore, the court finds that Sibley 23/301 deed

(Def.’s Ex. 100), conveyed fee simple title to the railroad.

       71.    The Slattery 94/161 Deed

       The Slattery 94/161 deed (Def.’s Ex. 101) provides in pertinent part:

       KNOW ALL MEN BY THESE PRESENTS: That for and in consideration
       of the sum of Ten Dollars to them in hand paid, the receipt whereof is
       hereby acknowledged, and other valuable considerations moving to them,
       W. C. Slattery and Delia Slattery, his wife, hereinafter called the grantors ,
       do bargain, 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 grantee's
       railway as the same is surveyed, staked out and located through the
       northwest quArter [sic] of Section 32 in Township 3 North of Range 5
       West of the Willamette Meridian.            Together with the appurtenances,
       tenements and hereditaments thereunto belonging, or in any wise [sic]
       appertaining, with the right to construct, maintain and operate a railway
       thereover.             TO HAVE AND TO HOLD to the grantee and to its
       successors and assigns forever. And the grantors do covenant with the
       grantee that they will warrant and defend the premises above granted unto
       the grantee, and to its successors and assigns against the lawful claims and
       demands of all persons whomsoever claiming or to claim under the
       grantors.

       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 ($10), 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 Slattery 94/161 deed (Def.’s Ex.

101), conveyed fee simple title to the railroad.


                                             96 
 
 


       72.      The Smith, Loyd 16/515 Deed

       The Smith, Loyd 16/515 deed (Def.’s Ex. 103) provides in pertinent part:

               Know All Men by These Presents: That for and in consideration of
       the sum of One Hundred Fifty and         Dollars, the receipt whereof is hereby
       acknowledged, I, Lloyd C Smith a widower, of Garibaldi, Tillamook
       County[,] Oregon[,] hereinafter called the grantor, 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) [sic] 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 Lot 3 of Section 8, Lot 4 of Section 7, Lots 1,
       2, 3, and 4 and North-West [sic] quarter of South-West[]quarter of Section
       17, Lot 3 of Section 20 and Tide Land fronting and abutting upon Lots 3
       and 4 of Section 20, all in Township 1 North of Range 10 West of
       Willamette Meridian; save and except that from Station No 651 to Station
       No. 677 said right of way hereby conveyed shall be only 65 feet wide being
       50 feet on the Easterly side and 15 feet on the Westerly side of said center
       line.
               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 grantor above named does covenant that he is 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. Here, the court finds that the deed’s use of the phrase

“right of way” is not a description of the interest being conveyed but provides a

geographic location. Even though the amount of consideration is nominal ($1), without

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



                                             97 
 
 


such as crossings, cattle guards, or fences, the court finds that the Smith, Loyd 16/515

deed (Def.’s Ex. 103), granted fee simple title to the railroad.

       73.    The Stanley 11/113 Deed

       The Stanley 11/113 deed (Def.’s Ex. 104) provides in pertinent part:

       F. S; [sic] Stanley et al                          Railway Deed.
       to                                                 NO. 6844.
       Pacific Railway and Navigation Co.
                  KNOW ALL MEN BY THESE PRESENTS: That for and in
       consideration of the sum of One DOLLARS, [sic] the receipt whereof is
       hereby acknowledged, F. S. Stanley and Ruth M. Stanley, his wife, Robert
       Smith, a single man; W. D. Wheelwright, a single man; - [sic] E. E. Lytle
       and Lizzie M Lytle, his wife, and May Enright, a single woman, hereinafter
       called the grantors, do herby 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 the East half of the South East [sic] quarter of
       Section Twenty [sic] (20) in Township Three [sic] (3) North, [sic] of Range
       Seven [sic] (7) West, W. M.
               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. Here, even though the amount

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

                                             98 
 
 


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 Stanley

11/113 deed (Def.’s Ex. 104), conveyed fee simple title to the railroad.

       74.    The State of Oregon 70/76 Deed

       The State of Oregon 70/76 deed (Loveridge, ECF No. 28, Ex. J-54) provides in

pertinent part:

       State of Oregon, by and through
       the State Highway Commission                No. 63061 Bargain and Sale Deed.
       To
       Southern Pacific Company, a corp.
                               BARGAIN AND SALE DEED
               THIS INDENTURE WITNESSETH, that the STATE OF
       OREGON, by and through its State Highway Commission, for the
       consideration of the sum of One and no/100 Dollars ($1.00) and other
       valuable considerations to it paid, has bargained and sold and by these
       presents does bargain, sell and convey unto the SOUTHERN PACIFIC
       COMPANY, a corporation, the following described premises, to-wit:
               A parcel of land in Lots 5 and 6 of Section 22, Twp. 1 North, Range
       10 West, W. M., Tillamook County, Oregon, said parcel being a strip of
       land of varying width lying on the westerly side of and contiguous to the
       present right of way of the Tillamook Brach of the Southern Pacific
       Company; said parcel of land being more particularly described as follows:
               Commencing at a point in the original center line of the Tillamook
       Brach of the Southern Pacific Company as it is now laid out, owned and
       operated over and across Section 22, Twp. 1, Range 10 West, W. M.,
       County of Tillamook, State of Oregon, said point being known as
       Engineer’s Station 497+19.8 E. C. of the said center line; thence North 24º
       25’ West at right angles to said center line a distance of 50.0 feet to a point
       in the original northwesterly right of way line of said Branch railroad; said
       point being the actual point of beginning of this description; thence along
       said original right of way line in a southwesterly direction on the arc of a
       taper curve to the left parallel to and always 50 feet northwesterly from the
       center line of the original location of said railroad, (the long cord of said
       taper curve bears South 64º 35’ West) a distance of 122.6 feet to a point,
       said point being 50.0 feet northwesterly from Engineer’s Station 495+99.8
       C. C. T 2 of the center line of the original constructed line; thence * * * *;
       containing 0.32 acres.

                                             99 
 
 


             This deed is an exchange deed given under terms of Section 44-118,
       Oregon Code 1930.
             TO HAVE AND TO HOLD the said premises, with their
       appurtenances, unto the said Southern Pacific Company, a corporation, its
       successors and assigns forever.

       This deed is entitled “BARGAIN AND SALE DEED” and specifies that the deed

“is an exchange deed given under terms of Section 44-118, Oregon Code 1930.”

According to the Oregon Court of Appeals, it is “the settled common-law understanding

of the purpose and effect of a bargain and sale deed” that “[t]he essential purpose of a

bargain and sale deed is to convey whatever title the seller has, without providing a

warranty on the seller's part of the nature or quality of that title.” Winters v. Cty. of

Clatsop, 150 P.3d 1104, 1107 (Or. App. 2007) (citing City of Bend v. Title & Trust Co.,

289 P. 1044 (Or. 1930) (a bargain and sale deed “contain[]no warranties” and only “act

as an instrument of conveyance.

       Although this deed uses the phrase “right of way” in the body of the deed it is not

describing the interest being conveyed by the deed but rather the geographic location. In

addition, although the deed provides for only $1 in consideration it does not contain any

railroad purpose language. The court finds that the State of Oregon 70/76 deed

(Loveridge, ECF No. 28, Ex. J-54), granted fee simple title to the railroad.

       75.    The Stowell 75/32 Deed

       The Stowell 75/32 deed (Def.’s Ex. 105) provides in pertinent part:

             THIS INDENTURE, made this 8th day of February A.D.1907,
       between S. H. Stowell and Josephine Stowell, his wife, of Washington
       County, Oregon, parties of the first part, and the PACIFIC RAILWAY &
       NAVIGATION COMPANY, party of the second part, WITNESSETH:


                                              100 
 
 


               That the parties of the first part, for and in consideration of the sum
       of $50.00 and other good and valuable consideration to them in hand paid,
       by the party of the second part, the receipt whereof 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 t[h]e
       County of Washington, State of Oregon and being more particularly
       described as follows:-
               Being in the S. W. [1/4] of Sec.[]33 and in the N. E. [1/4] of Sec 32,
       all in[]T. 3 N R. 4. W. Will. Mer. 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
       and described as follows:-
               Beginning at a point where the East line of said Right of Way
       intersects the West line of said Stowells [sic] land, 475 feet North and 109
       feet East of the Southwest corner of said Section 33; Running [sic] thence
       in a Northwesterly direction along said West line, 180 feet; thence in a
       North Easterly direction along said West line, 520 feet to its intersection
       with the West line of said Right of Way; thence in a Northeasterly
       dire[c]tion along said Right of way, [sic] on a spiral to the Right, 170 feet;
       thence * * * *; Also Beginning [sic] at a point where the West line of said
       Right of Way intersects the East line of said N. E. of said Sec. 32, 390 feet
       North of the Southeast corner thereof; Running * * * *, and containing 6.96
       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 Pacific Railway & Navigation
       Company, its successors and assigns forever,[]And [sic] We, [sic] S. H,.
       Stowell and Josephine Stowell, his wife, grantors above named, do
       covenant to and with the Pacific Railway & Navigation Company, the
       above n[a]med grantee, its successors and assigns, that the above granted
       premises are fee from all incumbrances, and that we will and our heirs,
       executors and administrators, shall warrant and forever defend the above
       granted premises and every part and parcel thereof against the lawful claims
       and demands of all persons whomsoever.

       The court finds that the phrase “right of way” is being used to describe the

geographic location of the preexisting railway line, rather than to refer to the interest
                                             101 
 
 


being conveyed by the deed. Additionally, the amount of consideration paid was not

nominal ($50), 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.

Therefore, the court finds that the Stowell 75/32 deed (Def.’s Ex. 105), conveyed fee

simple title to the railroad.

       76.     The Surman 6/40 Deed

       The Surman 6/40 deed (Def.’s Ex. 106) provides in pertinent part:

              Know all Men By These Presents: That for and in consideration of
       the sum of $150.00 to him in hand paid, the receipt whereof is hereby
       acknowledged, James Surman, unmarried, does 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 him
       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 James
       Surman, in Lot 2 Section 22, T. 1 N., R. 10 W., W. M., said center line
       being more particularly described as follows:
              * * * [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 does not limit the railroad’s use to only railroad purposes. Here, the amount of

consideration is not nominal ($150), 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




                                             102 
 
 


crossings, cattle guards, or fences. Therefore, the court finds that the Surman 6/40 deed

(Def.’s Ex. 106), conveyed fee simple title to the railroad.

       77.       The Thayer 11/355

       The Thayer 11/355 deed (Def.’s Ex. 107) provides in pertinent part:

       Claude Thayer and wife                                    Railway Deed.
       to                                                          No. 7236.
       Pacific Railway and Navigation Co.
               KNOW ALL MEN By [sic] THESE PRESENTS; That for and in
       consideration of the sum of One & 00 DOLLARS, the receipt whereof is
       hereby acknowledged, we, Claude Thayer and Estelle Thayer, husband and
       wife, hereinafter called the grantors, do hereby bargain, sell, grant, convey
       and confirm to PACIFIC RAILWAy [sic] AND NAVIGATION
       COMPANy, [sic] 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 ) [sic] 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; [sic]
       Tide Land fronting and abutting on Lot 1 of Sec. 21, T. 1 N. R. 10 W.
       except Town of Garibaldi.
       Also beginning at a point at ordinary high water line South 84º West 24
       links dist. from the meander corner between Sections 20 and 21, T. 1 N. R.
       10 W. thence South 65º East on ordinary high water line 3.21 chains,
       thence North 17.89 chains, thence West 2.91 chains, thence South 16.53
       chains to point of beginning.
               Also through an undivided one half interest in the following tracts;-
               Beginning at a point on ordinary high water line 34 links South and
       320 links West of the meander corner between Sections 20 and 21 T. 3 N.
       R. 10 W. thence N. 84º East 3.02 chains on ordinary high water line, thence
       North 16.53 chains, thence West 3.00 chains, thence South 16.84 chains to
       place of beginning; also through an undivided one half interest in Lots 5, 6,
       7, and 8 in Block 3 and Lots 4, [sic] and 5 in Block 4, all in the Town of
       Garibaldi.
               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

                                            103 
 
 


       en[c]umbrances, 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. Here, 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 Thayer

11/355 deed (Def.’s Ex. 107), conveyed fee simple title to the railroad.

       78.    The Thayer 18/39 Deed

       The Thayer 18/39 deed (Def.’s Ex. 108) is entitled “1134 Railway Deed” and

provides in pertinent part:

               Know 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,
       Claude Thayer and Estelle Thayer[,] husband and wife, of Tillamook, 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:
               “A strip of land one hundred(100) [sic] 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 Lot eight of Section twenty two, in Township one North of
       Range ten West of Willamette Meridian, save and except a certain one acre tract
       heretofore conveyed out of said Lot eight;
               Also through the tide lands fronting and abutting upon Lots seven and eight
       in said Section twenty two, in Township one North 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.

                                            104 
 
 


              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 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, 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 Thayer

18/39 deed (Def.’s Ex. 108), conveyed fee simple title to the railroad.

       79.       The Thronburgh 72/531 Deed

       The Thornburgh 72/531 deed (Def.’s Ex. 109) provides in pertinent part:

              THIS INDENTURE , [sic] made this 12th day of October 1906,
       between A. Thornburgh, widower, and O. C. Thornburgh, 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 Three hundred dollars ($300) 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, [sic] lot, piece,
       parcel and tract of land, lying, being and situate in Washington County,
       Oregon, and particularly described as a portion of Sec. 24, T. 2. N. R. W.,
       Will. Mer., 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 land and described as follows:
              * * * [Description] * * * and containing 4.11 acres, and also
              A part of Sections 14 and 15, 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
                                             105 
 
 


       Railway & Navigation Company’s Railway, as now surveyed and located
       on said land, and described as follows:
               * * * [Description] * * *, and containing 6.45 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, 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 ($300), 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 Thornburgh

72/531 deed (Def.’s Ex. 109), granted fee simple title to the railroad.

       80.       The Thurnheer 114/339 Deed

       The Thurnheer 114/339 deed (Def.’s Ex. 110) is a form deed and provides

in pertinent part:

       Know all Men by these Presents, that     Lawrence Thurnheer and Alice
       Thurnheer, husband and wife
       of Washington County xxxxxx State of Oregon, in consideration of
       Fifty ($50.00)                                                  DOLLARS,
       to     them paid by        Southern Pacific ComPany, [sic] a corporation
       of the State of Kentucky, * * *
       * * * have bargained and sold, and by these presents do grant, bargain, sell
       and convey unto said Southern Pacific ComPany, [sic] its successors and


                                              106 
 
 


       * * * assigns, all the following bounded and described real property,
       situated in the County of Washington and State of Oregon
               A strIP [sic] of land 20 feet in width adjoining the 100 foot right-of-
       way of the Tillamook Brach of said Railroad ComPany [sic] through
       section 30, townshiP [sic] 3 N, range 4 W, WM, on its northerly side and
       extending from the east line of section 30 westerly adjacent to said 100 foot
       right-of-way a distance of 930 feet, more or less, to the northerly line of
       County Road through said section 30, said parcel of land containing 0.43
       acres, more or less, all in section 30, T 3 N. R 4 W. WM. [sic]
       * * * * * * [Blank Space] * * * * * *
       Together with all and singular the tenements, hereditaments and
       appurtenances there to [sic] 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 Southern Pacific Company[,] its successors
           *** and assigns forever. And Lawrence Thurnheer and Alice
       Thurnhere,
       grantors above named do covenant to and with Southern Pacific
       Company[,]
       the above named grantee[,] its successors * * * and assigns that they are
       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 a description of the interest being conveyed but provides a

geographic location. Additionally, the amount of consideration paid was not nominal

($50) and there is no reference to a railroad purpose nor does the deed contain any

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



                                             107 
 
 


As such, the court finds that the Thurnheer 114/339 deed (Def.’s Ex. 110), granted fee

simple title to the railroad.

        81.    The Tillamook Beach Realty 11/599 Deed

        The Tillamook Beach Realty 11/599 deed (Def.’s Ex. 111) provides in pertinent

part:

        KNOW ALL MEN BY THESE PRESENTS that for and in consideration
        of the covenants and agreements entered into between the PACIFIC
        RAILWAY AND NAVIGATION COMPANY, a corporation[,] and the
        TILLAMOOK BEACH REALTY COMPANY, a corporation[,] by
        agreement dated this 27th. day of July, 1909, said TILLAMOOK BEACH
        REALTY COMPANY, a corporation, does hereby grant, bargain, sell and
        convey to PACIFIC RAILWAY AND NAVIGATION COMPANY, 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 (60) feet wide, being thirty (30) feet on each
        side of the center line of the railway of the Pacific Railway and Navigation,
        as the same is surveyed and located through the following described
        premises, situated in Tillamook County, Oregon, to-wit:
                * * * [Description of the premises through which the strip runs, not
        the strip itself] * * *
                Together with the appurtenances, tenements and hereditaments
        thereunto belonging or in anywise appertaining.
                To Have and to Hold unto the above named Pacific Railway and
        Navigation Company, its successors and assigns.

        Although this deed does not list any money as consideration, there are other

indicia that the parties intended to convey fee simple title. The deed lacks any “right of

way” language in the title or body, there is no mention of railroad purposes, nor any

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

As such, the court finds that the Tillamook Beach Realty 11/599 deed (Def.’s Ex. 111),

conveyed fee simple title to the railroad.



                                             108 
 
 


       82.    The Turner 72/538 Deed

       The Turner 72/528 deed (Def.’s Ex. 113) provides in pertinent part:

               THIS INDENTURE, made this 21st day of August 1906, between
       Montgomery Turner and Bessie Turner, his wife, of Washington County,
       parties of the first part, and the Pacific Railway & Navigation Company, a
       Corporation, a Corporation, party of the second part, WITNESSETH:
               That the said parties of the first part, for and in consideration of the
       sum of Fifteen Dollars ($15) 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 Sec. 25, T. 2 N. R. 4 W. Will.
       Mer. a strip of land 60 feet wide, being 30 feet on each side of the center
       line of the Pacific Railway and 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.
               [T]O HAVE aND [sic] 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. That said premises are free from all incumbrances,

       This deed states that the railroad shall have the property “as long as used and

operated for Railway and Transportation purposes.” The government argues that this

language indicates that the parties intended to convey a fee simple determinable.

However, for the same reasons as discussed in the court’s analysis of the Carstens

72/530 deed (Def.’s Ex. 20), this deed is different from the deed in Tolke, in which the


                                             109 
 
 


Oregon court found a fee simple determinable interest, because the deed does not provide

for an express reversion back to the grantor. Therefore, the court finds that the Turner

72/528 deed (Def.’s Ex. 113), grants an easement the railroad.

        83.    The Twin Rocks Land Co. 13/450 Deed

        The Twin Rocks Land Co. 13/450 deed (Def.’s Ex. 114) provides in pertinent

part:

                Know all Men by These Presents that for an[d] in consideration of
        the covenants and agreements entered into between the Pacific Railway and
        Navigation Company, a corporation, and the Twin Rocks Land Company, a
        corporation, by agreement dated this 6th day of November, 1909, said Twin
        Rocks Land Company, a corporation, does hereby bargain, grant, sell and
        convey to Pacific Railway and Navigation Company, 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 (60) feet wide being thirty (30) feet on each side
        of the center line of the railway of the PACIFIC RAILWAY AND
        NAVIGATION COMPANY, as the same is surveyed and located through
        the following described premises, situated in Tillamook County, Oregon,
        to-wit:
                * * * [Description of the premises through which the strip runs, not
        the strip itself] * * *
                Together with the appurtenances, tenements and hereditaments
        thereunto belonging or in anywise appertaining.
                TO HAVE AND TO HOLD unto the above named PACIFIC
        RAILWAY AND NAVIGATION COMPANY, its successors and assigns.

        Although this deed does not list any money as consideration, there are other

indicia that the parties intended to convey a fee simple. The deed lacks any “right of

way” language in the title or body, there is no mention of railroad purposes, nor any

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

As such the court finds that the Twin Rocks Land Co. 13/450 deed (Def.’s Ex. 114),

conveyed fee simple title to the railroad.

                                              110 
 
 




       84.    The Vantress 13/98 Deed

       The Vantress 13/98 deed (Def.’s Ex. 115), which the parties in Loveridge

stipulated as having granted a fee simple to the railroad, but the Albright plaintiffs did

not, and provides in pertinent part:

               Know all Men by These Presents[:] That for and in consideration of
       the sum of Five Hundred and 00/100 Dollars[,] the receipt whereof is
       hereby acknowledged, We[,] P.B. Vantress and Bessie Vantress[,] 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 wide being fifty (50) feet in
       each side of the center line of the railway of the grantee as the same [is]
       surveyed and located through Lots one and two and 1044 acres off the East
       side of Lot three, all in Section five, Township two North of Range nine
       West of the Willamette Meridian, said strip containing seven acres and
       center line being more particularly described as follows:-
               * * * [Description] * * *
               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.

       Here, the amount of consideration paid was not nominal ($500), 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




                                             111 
 
 


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

13/98 deed (Def.’s Ex. 115), granted fee simple title to the railroad.

       85.    The Watt 12/343 Deed

       The Watt 12/343 deed (Def.’s Ex. 116) is entitled “No. 8225. Railway Deed.” and

provides in pertinent part:

               KNOW ALL MEN BY THESE PRESENTS: That for and in consideration
       of the sum of One and 00/100 DOLLARS , [sic] The [sic] receipt whereof is
       hereby acknowledged, we, George Watt and Helen Watt, his wife[,] and Robert
       Watt and Lois A. Watt, 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
       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 o f [sic] the grantee as the same is surveyed
       and located through Lots One, two and three of Section Seven and Lot one
       of Section eight, all in Township One North of Range ten Wes t [sic] 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.

       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, 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


                                            112 
 
 


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

12/343 deed (Def.’s Ex. 116), conveyed fee simple title to the railroad.

       86.    The Watt 12/344 Deed

       The Watt 12/344 deed (Def.’s Ex. 117) is entitled “No. 8226. Railway Deed.” and

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, George Watt and Helen Watt, husband and
       wife, hereinafter called the grantors, do bargain, sell, grant, convey and
       confir, [sic] 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 in
       [sic] surveyed and located through Lot one of Section nine and also through
       the tide land fronting and abutting upon Lots One [sic] and Four [sic] of said
       Section nine; also through Lot one of Section sixteen and the tide fronting
       and abutting upon said Lot one of Section sixteen, all in Township two
       North of Range ten West of Willamette Meridian. Save and except a tract
       105 feet by 210 feet in Lot 1 of Section 9, Township 2 North Range 10 West
       reserved by G. M. Lock.
               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. Here, even though the amount


                                             113 
 
 


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 Watt

12/344 deed (Def.’s Ex. 117), conveyed fee simple title to the railroad.

       87.    The Watt 12/345 Deed

       The Watt 12/345 deed (Def.’s Ex. 118) is entitled “No. 8227. Railway Deed.” and

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, John Watt and Sarah M. Watt[,] husband and wife, hereinafter
       called the grantors, do bargain, sell, grant, convey and confirm [sic] 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 in [sic] surveyed
       and located through Lots two, three and four of Section nine, in Township two
       North 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.
               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. Here, even though the amount

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


                                             114 
 
 


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 Watt

12/345 deed (Def.’s Ex. 118), conveyed fee simple title to the railroad.

       88.    The Western Timber 77/108 Deed

       The Western Timber 77/108 deed (Def.’s Ex. 119) provides in pertinent part:

                KNOW ALL MEN BY THESE PRESENTS, ThAt [sic] the Western
       Timber Co., a corporation organized and existing under the laws of the
       State of Washington, for and in consideration of the sum of the sum of One
       Dollar ($1.00) and other valuable considerations to it paid, the receipt
       whereof is hereby acknowledged, does hereby bargain, sell, grant, convey
       and confirm to the 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 Washington, 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 track of the Pacific
       Railway and Navigation Company, as the same is surveyed, located and
       adopted through the northeast quarter of Section Twenty seven (27) and the
       southeast quarter of Section Twenty two (22), in Township Three (3)
       North, Range Five (5) West of the Willamette Meridian, said center line
       being described as follows:
                * * * [Description] * * *
                Together with the tenements, hereditaments and appurtenances
       thereunto belonging or in anywise appertaining. Reserving, however, unto
       the said Western Timber Co. , [sic] its successors and assigns, the right to
       cross said right of way at any point or points where such crossing is
       desired. TO HAVE AND TO HOLD unto the said Pacific Railway and
       Navigation Company, and to its successors and assigns forever.
                The aforesaid grantor, the Western Timber Co., does here covenant
       that it is the owner in fee simple of the above granted premises and that it
       will forever warrant and defend the same unto the grantee, its successors
       and assigns forever, against the lawful claims of all persons whomsoever.

       Here, the court finds that the deed’s use of the phrase “right of way” is a

description of the interest being conveyed. Additionally, the amount of consideration is

nominal ($1) and the grantor retained a right to cross the right of way at any points it

                                             115 
 
 


desired. Therefore, the court finds that the Western Timber 77/108 deed (Def.’s Ex.

119), conveyed an easement to the railroad.

       89.    The Westinghouse 84/54 Deed

       The Westinghouse 84/54 deed (Def.’s Ex. 120) is a form deed and provides in

pertinent part:

               Know all Men by these Presents, THAT
                      We, G. E. Westinghouse and Ida C. Westinghouse[,] his wife
       of       Timber          ***          State of Oregon, in consideration of
                     Six hundred and seventy five                  DOLLARS,
       to            us       paid by Pacific Railway and Navigation Company[,]
       its successors and assigns
       of * * * * State of Oregon * * *
       * * * * * * ha[ve] bargained and sold, and by these presents do grant,
       bargain, sell and convey unto said
         Pacific Railway Navigation Company[,]
       heirs 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 fEet [sic] in width, being fifty feet on each
       side of and parallel with the center line of the tracks of the Pacific Railway
       and Navigation Company on the Nehalem line and also on the Salmonberry
       line as the same are surveyed and located through the North West quarter of
       Section, [sic] twenty seven (27) in Township three (3) North of Range five
       (5) West W. M. and containing seven and one tenth (7 1/10) acres no more
       and no less
       * * * * * * [Empty space] * * * *
       Together with all and singular the tenements, hereditaments and
       appurtenances thereto belonging or in anywise appertaining, and also all
                      our 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 and to its successors
       * * * and assigns forever. And
               G. E. Westinghouse and Ida C. Westinghouse
                grantor s [sic] above named do covenant to and with
                      the Pacific Railway and Navigation Co



                                            116 
 
 


       the above named grantee[,] its succe[ssors][]and assigns that we are
       lawfully seized        in fee simple of the above granted premises, that the
       above granted premises         are free from all incumbrances
       * * * [Empty space] * * *
                  and that we will and our 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).

       Here, the amount of consideration paid was not nominal ($665), 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

Westinghouse 84/54 deed (Def.’s Ex. 120), granted fee simple title to the railroad.

       90.    The Westinghouse 85/39 Deed

       The Westinghouse 85/39 deed (Def.’s Ex. 121) provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS: That I, John F.
       Westinghouse, a single man[,] for and in consi deration [sic] of the sum of
       One Dollars, [sic] to me 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 (100) feet in width, being fifty (50) 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 a strip of land more particularly described as the West one half of
       Southwest one quarter and the Southwest one quarter of Northwest one
       quarter of Northwest one quarter [of] Sec.[]26, T 3 N. R. 5 W., Willamette
       Meridian and containing four and forty two hundredths (4.42) acres more or
       less. 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.


                                            117 
 
 


               The aforesaid grantor John F. Westinghouse does hereby he is the
       owner in fee simple of the ab[o]ve grante[d] premises, and that he will
       forever qarrant [sic] 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 paid was nominal ($1), 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

Westinghouse 85/39 deed (Def.’s Ex. 121), granted fee simple title to the railroad.

       91.    The Wheeler 16/2 Deed

       The Wheeler 16/2 deed (Def.’s Ex. 122) provides in pertinent part:

               Know All Men by These Presents: That Coleman H. Wheeler and
       Cora E. Wheeler, hereinafter called the grantors, for and in consideration of
       the sum of $1.00 to them in hand paid, the receipt whereof is hereby
       acknowledged, does [sic] hereby release, remit and forever quit claim [sic]
       unto Pacific Railway and Navigation Company, hereinafter called the
       grantee, 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 right of way 60 feet in width, being 30 feet on each side of and
       parallel with the center line of the grantee’s railway as the same is
       surveyed, staked out, located and adopted through the following described
       real property, to-wit:
               All that tract or parcel of land in Lots Four (4) and Five (5) of
       Section Two (2), Township Two (2) North of Range Ten (10) West of the
       Willamette Meridian
       Beginning at the Northeast corner of Charles Seaman’s four acre tract on
       the meander line of the Nehalem River; thence Easterly along and up said
       River sixteen (16) rods; thence South twenty (20) rods parallel with Charles
       Seaman’s line; thence West to Charles Seaman’s East line; thence North to
       the Nehalem River to the place of beginning and containing two acres more
       or less.
       Together with the appurtenances, tenements and hereditaments thereunto
       belonging or in anywise appertaining.


                                            118 
 
 


             To Have and to Hold to the above named grantee and to its
       successors and assigns forever.

       This deed uses the phrase “right of way” in the granting clause to describe the

geographic location of the interest being conveyed. Even though the amount of

consideration is nominal ($1), without any 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 Wheeler 16/2 deed (Def.’s Ex. 122), granted fee simple title to

the railroad.

       92.      The Wheeler Lumber 16/3 Deed

       The Wheeler Lumber 16/3 deed (Albright, ECF No. 34, Ex. 82) 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,
       The Wheeler Lumber Company, hereinafter called the grantor, does 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 60 feet in width, being thirty 30 feet on each side of and
       parallel with the center line of the grantee's railway as the same is located,
       staked out, and surveyed through the following described three parcels of
       real property, to-wit:
       * * * * [Describing the three parcels 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.



                                             119 
 
 


       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, 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 Wheeler Lumber 16/3 deed

(Albright, ECF No. 35, Ex. 82), conveyed fee simple title to the railroad.

       93.      The Wheeler Lumber Co. 16/5 Deed

       The Wheeler Lumber Co. 16/5 deed (Def.’s Ex. 123), which is very similar to

the above-analyzed Wheeler Lumber Co. 16/3 deed, provides in pertinent part:

       Know All Men by These Presents, that for and in consideration of the sum
       of One Dollar ($1.00) to it in hand paid, the receipt whereof is hereby
       acknowledged, The Wheeler Lumber Company, hereinafter called the
       grantor, does 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 sixty feet in width being thirty feet on each side of
       and parallel with the center line of the grantee’s railway as the same is last
       located, staked out, surveyed and being constructed through Lots Four (4),
       Five[](5), Six[](6) and that part of Lot Three (3) lying west of the lands in
       said lot heretofore conveyed by said grantor to Willie G. Du Bois, all in
       Section Three (3) and the East Half (E ½) of Lot One (1) in Section Four
       (4) and through all tide lands fronting and abutting on all of the above
       described lands, all in Township Two[](2), North Range Ten (10) West
       Willamette Meridian.
               Also, a strip of land sixty feet in width being thirty feet on each side
       of and parallel with the center line of the grantee’s railway as the same is
       last located, staked out, surveyed and being constructed through all the tide
       lands fronting and abutting on that part of said Lot Three (3) in said Section
       Three (3) in said Township Two[](2) North, Range Ten (20) West,
       Willamette Meridian, described as follows: * * * * [Describing the land
       through which the strip being conveyed runs] * * *
                                             120 
 
 


               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 grantor does hereby covenant that it is the owner in
       fee simple of the above granted premises, and that it will warrant and
       defend same unto the said grantee aforesaid, its successors and assigns,
       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

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

the amount of consideration is nominal ($1), 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 Wheeler Lumber Co. 16/5

deed (Def.’s Ex. 123), conveyed fee simple title to the railroad.

       94.    The Williams 6/607 Deed

       The Williams 6/607 deed (Def.’s Ex. 125) provides in pertinent part:

       George H. Willaims et ux                   RAILWAY DED
              -to-                                No. 4113.
       P. R. and N. Co.
               KNOW ALL MEN BY THESE PRESENTS, That for and in
       consideration of the sum of Ten 00/100 DOLLARS[,] the receipt whereof is
       hereby acknowledged, and other valuable consideration moving to them[,]
       George H. Williams and Bessie Williams, 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 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
                                            121 
 
 


       surveyed and located through Lots Three, [sic] Four, [sic] Five [sic] and Six
       [sic] of Block Eleven [sic] in Cone and McCoy’s Addition to Bay City,
       according to the plat thereof of record in Tillamook County, Oregon.
               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
       granted unto the grantee aforesaid, and unto its successors and assigns
       against the lawful claims of all persons whomsoever.

       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 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 Williams

6/607 deed (Def.’s Ex. 125), conveyed fee simple title to the railroad.

       95.    The Wilson 75/244 Deed

       The Wilson 75/244 deed (Def.’s Ex. 126) provides in pertinent part:

              KNOW ALL MEN BY THESE PRESENTS: That we Brice Wilson
       and Sarah E. Wilson[,] husband and wife, for and in consideration of the
       sum[]of One Dollars, [sic] 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 [sic] 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 half of the Northeast quarter of Section twenty eight (28)
       in Township three (3) North Range five (5) West of the Willamette
       Meridian.
           The said center line enters said land about 1185 feet south of the
       Northeast corner and runs southwesterly across the same to a point about
       105 feet west of the South east [sic] corner thereof.
                                            122 
 
 


           Together with the tenements, hereditaments and appurtenances,
       thereunto belon[g]ing 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 Brice Wilson and Sarah E. Wilson 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
       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 Wilson 75/244 deed (Def.’s Ex. 126), conveyed fee

simple title to the railroad.

       96.     The Woodbury 16/481 Deed

       The Woodbury 16/481 deed (Def.’s Ex. 127) is entitled “No. 10888 Warranty

Deed” and provides in pertinent part:

              Know All Men by These Presents: That for and in consideration of
       the sum of Ten ($10.00) Dollars, to them in hand paid, the receipt whereof
       is hereby acknowledged, and of other valuable considerations, E. D.
       Woodbury and Maude Woodbury, 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, the following described real property situate in the
       County of Tillamook and State of Oregon, to wit:
              A strip of land sixty (60) feet in width, being thirty (30) feet on each
       side of the center line of the grantee’s railway as the same is surveyed and
       located through the following described real property, 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.
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               The grantors covenant with the grantee that they will warrant and
       defend the premises herein granted against the lawful claims and demands
       of all persons whomsoever claiming by, through or under the grantors or
       either of them.

       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 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 Woodbury

16/481 deed (Def.’s Ex. 127), conveyed fee simple title to the railroad.

       97.      The Woodbury 23/399 Deed

       The Woodbury 23/399 deed (Def.’s Ex. 128) provides in pertinent part:

               Know All Men by These Presents: That we, E.E. Woodbury and
       Maude Woodbury, his wife, the grantors, in consideration of the sum of
       Two +      Dollars, paid by Pacific Railway and Navigation, the grantee
       herein, the receipt whereof is hereby acknowledged, have bargained and
       sold, and by these presents do bargain, sell, transfer and convey unto said
       Pacific Railway and Navigation Company, an Oregon Corporation, and to
       its successors and assigns forever, a strip of land sixty (60) feet in width,
       being thirty (30) feet on each side of the center line of the railway of said
       Company as the same is now located, staked out, and operated through
       Section Twenty-Nine (29), Township Two (2) North, Range Ten (10) West
       of the Willamette Meridian. Which strip lies between the line between
       Sections 29 and 32 on the South and the North boundary of North Street of
       said Lake Lytle Tract, as the same is platted in and by Lake Lytle Plat and
       between Blks. [sic] 1, 7 and 3 of Lake Lytle on the East and Blks [sic] 4, 8
       and 14 of Lake Lytle on the West.
               To Have and to Hold the above described premises unto the said
       Pacific Railway and Navigation Company and to its successors and assigns
       forever.

       Even though the amount of consideration is nominal ($2), without any “right of

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

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

fences, the court finds that the Woodbury 23/399 deed (Def.’s Ex. 128), conveyed fee

simple title to the railroad.

       98.     The Wright-Blodgett Co. 15/493 Deed

       The Wright-Blodgett Co. 15/493 deed (Def.’s Ex. 129) is entitled “Right

of Way Deed. NO. 10598” and provides in pertinent part:

               KNOW ALL MEN BY THESE PRESENTS: That , [sic] in
       consideration of the sum of[]Ten (10) Dollars, the receipt whereof is hereby
       acknowledged, and other valuable considerations moving to it, WRIGHT-
       BLODGETT COMPANY , [sic] LIMITED, hereinafTer [sic] called the
       grantor, does bargain, sell, grant, convey and confirm to PACIFIC
       RAILWAY AND NAVIGATION COMPANY, hereinafter called the
       grantee, 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 railway of the
       grantee, as the same is surveyed, staked out and located through the
       following described real property situate in the County of Tillamook and
       State of Oregon, to-wit :- [sic]
               * * * [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.
                  Provided, however, and this conveyance is made upon the express
       understanding and condition that the grantor reserves to itself, its
       successors and assigns, the right to construct across the strip of land herein
       conveyed and across the railway of the grantee constructed thereon, a
       logging railroad, without compensation to the grantee, its successors and
       assigns, said crossing to be at grade and at some suitable point, the point of
       crossing and the manner of its construction to be subject to the approval of
       the chief engineer of the grantee and an engineer to be selected by the
       grantor; the said logging railroad to be operated at all times in such a
       manner as not to interfere with the operation by the[]grantee of its railway
       over said strip of land.
               And further provided that the grantee dur ing [sic] the construction
       of its railway upon the right of way herein granted shall indemnify and save
       harmless the grantor from loss or damage by fire to its remaining timber
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       upon the land across which right of way is herein granted, and its
       acceptance to this grant may be deemed its obligation so to do.
               The grantor covenants with the grantee that it will warrant and
       defend the premises herein granted against all lawful claims and demands
       of all persons claiming the same, by, through or under the grantor.

       This deed is entitled “Right of Way Deed” and contains “‘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[.]’” Bouche, 293 P.2d at 209 (quoting 132

A.L.R. 145). The deed specifically states that “this conveyance is made upon the express

understanding and condition that the grantor reserves to itself, its successors and assigns,

the right to construct across the strip of land herein conveyed and across the railway of

the grantee constructed thereon, a logging railroad, without compensation to the grantee,

its successors and assigns, said crossing to be at grade and at some suitable point, the

point of crossing and the manner of its construction to be subject to the approval of the

chief engineer of the grantee and an engineer to be selected by the grantor; the said

logging railroad to be operated at all times in such a manner as not to interfere with the

operation by the[]grantee of its railway over said strip of land.” The fact that the grantor

reserved to itself the right to construct a logging railroad across the lands conveyed in the

deed is inconsistent with the grant of a fee to the railroad and thus indicates the original

parties’ intent to only grant an easement. The deed also provides that “the grantee dur

ing [sic] the construction of its railway upon the right of way herein granted shall

indemnify and save harmless the grantor from loss or damage by fire to its remaining

timber upon the land across which right of way is herein granted, and its acceptance to

this grant may be deemed its obligation so to do.” This language also suggests the grant

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of only an easement. The court finds that the Wright-Blodgett Co. 15/493 deed (Def.’s

Ex. 129), conveyed an easement to the railroad.

        99.    The Wright-Blodgett Co. 105/393 Deed

        The Wright-Blodgett Co. 105/393 deed (Def.’s Ex. 130) provides in pertinent

part:

        KNOW ALL MEN BY THESE PRESENTS: That , [sic] in consideration
        of the sum of Ten (10) Dollars, the receipt whereof is hereby
        acknowledged, and other valuable considerations moving to it, WRIGHT-
        BLODGETT COMPANY, LIMITED, hereinafter called the grantor, does
        hereby bargain, sell, grant, convey and confirm to PACIFIC RAILWAY
        AND NAVIGATION COMPANY, hereinafter called the grantee , [sic] and
        to its successors and assigns , [sic] 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 railway of the grantee, as the same is surveyed, staked out nad [sic]
        located through the following described real property situate in the County
        of Washington 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. Provided, however ,
        [sic] and this conveyance is made upon the express understanding and
        condition that the grantor resreves [sic] to itself, its successors and assigns,
        the right to construct across the strip of land herein conveyed and across the
        railway of the grantee constructed thereon, a logging railroad, without
        compensation to the grantee, its successors and assigns, said crossing to be
        at grade and at some suitable point, the point of crossing and the manner of
        its construction to be subject to the approval of the chief engineer of
        the[]grantee and an engineer to be selected by the grantor; the said logging
        railroad to be operated at all times in such a manner as not to interfere with
        the operation by the[]grantee of its railway over said strip of land. And
        further provided, that the grantee during the construction of its railway
        upon the right of way herein granted shall indemnify and save harmless the
        grantor from loss or damage by fire to its remaining timber upon the land
        across which right of way is herein granted, and its acceptance to this grant
        may be deemed its obligation so to do.



                                              127 
 
 


               The grantor covenants with the grantee that it will warrant and
       defend the premises herein granted against all lawful claims and demands
       of all persons claiming the same by ,[]through [sic] or under the grantor.

       As described above in the courts analysis of Wright-Blodgett Co. 15/493 deed

(Def.’s Ex.139), this includes purpose language or limiting language establishing that an

easement and not fee was intended to be conveyed. Therefore, the court finds that the

Wright-Blodgett Co. 105/393 deed (Def.’s Ex. 130), conveyed an easement to the

railroad.

VIII. Conclusion

       For the foregoing reasons the court GRANTS-IN-PART and DENIES-IN-PART

the parties’ motions for partial summary judgment. The parties shall have until

September 7, 2018, to file a proposed schedule for resolving the remaining issues in

these cases. The court will thereafter schedule a status conference to finalize the parties’

next steps.

       IT IS SO ORDERED.

                                                          s/Nancy B. Firestone
                                                          NANCY B. FIRESTONE
                                                          Senior Judge




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