(dissenting in part, concurring in part) — If this court is to adhere to its time-honored and unquestioned rule that "the intention of the parties to the conveyances is of paramount importance and must ultimately prevail in a given case,” Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 738, 844 P.2d 1006 (1993) (citing Swan v. O’Leary, 37 Wn.2d 533, 225 P.2d 199 (1950)), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994), we must yield to the necessary legal conclusion that the parties to these transactions intended to convey that which was necessary to permit the construction and operation of a railroad—an easement. Accordingly, I would affirm the judgment of the learned trial courts in Adams and Whitman*44911 counties, reverse the Kittitas County summary judgment, and dissent from the unprecedented majority opinion of this court (except as to the charter parcels).
We are presented with a mixed question of fact and law. The intent of the parties is the factual part of the question. Harris, 120 Wn.2d at 738 (citing Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)); Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 572, 716 P.2d 855 (1986). The search for intent is illuminated hy three factors: (1) deed language, (2) circumstances surrounding the execution of the deed, and (3) the subsequent conduct of the parties. Scott v. Wallitner, 49 Wn.2d 161, 162, 299 P.2d 204 (1956). The consequence of this intent is the legal question.
The factual question is: Was it the intention of the parties to convey a right to use the land for the purpose of operating a railroad, or was it, on the other hand, their intent to convey an absolute fee title. Scott, 49 Wn.2d at 162 (citing Morsbach v. Thurston County, 152 Wash. 562, 278 P.2d. 686 (1929); Swan v. O’Leary, 37 Wn.2d 533, 225 P.2d 199 (1950); A.M.S., Annotation, Deed to Railroad Company as Conveying Fee or Easement, 132 A.L.R. 142 (1941)). Curiously, the majority aptly and accurately discerns the fundamental intent of these parties: "There is no question Milwaukee acquired the property for railroad purposes under these deeds,” Majority op. at 440, and "the manifest purpose of the deeds is to convey land for railroad lines . . . .,” Majority op. at 443. Ultimately this fact should resolve the case because if it was the intent of the parties to convey what was necessary for a railroad line, all that was needed was an easement. But by its holding the majority benefits the railroad more than its intended gain and takes from the landowner more than his intended conveyance. This does not fulfill the intention of the parties; it defeats it.
The majority mistakenly switches to the wrong track
*450because these deeds are generally statutory in form. It opines: "[W]here the originál parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed.” Majority op. at 437. It sees support for this alleged rule in King County v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949); Wright v. Olsen, 42 Wn.2d 702, 257 P.2d 782 (1953); Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855 (1986); and Veach v. Culp, 92 Wn.2d 570, 599 P.2d 526 (1979) and purports to briefly summarize the holding in each of these cases after their citation. I do not agree with their characterization of these cases, and I strongly disagree that precedent holds the utilization of a statutory warranty deed format, in a railroad deed situation, raises some sort of a presumption that a fee title has been conveyed. As a matter of fact, a long, narrow, definite strip of land more likely represents an easement than a fee, see, e.g., Hanson, 34 Wn.2d at 123-25; Morsbach, 152 Wash. at 573-74 (citing Killgore v. Cabell County Court, 80 W. Va. 283, 92 S.E. 562 (1917)), as easements for railroad rights of way are almost always "strips of land” whereas fee parcels are usually more regularly shaped and large enough to suit a nonrailway purpose.
Neither Hanson nor Wright involved a conveyance to a railroad company. In Hanson the court held the deed granting land for a public park to be ambiguous, but the plat filed by the landowner clearly indicated his intent that the tract be dedicated to the county for a public park because it involved a triangular tract (not just a strip of land suitable for a highway easement). Hanson, 34 Wn.2d at 125-26. In Wright the court found the state acquired the fee in land by a deed "in plain and unambiguous terms” and that the statutes provide that the state cannot be divested of title by abandonment. Wright, 42 Wn.2d at 703- 04 (citing Rem. Rev. Stat. §§ 6829-1, -2 (1926); RCW 47.12.060, .070 (1945)). This is nearly the opposite rule *451from that posited by the majority: it is an easement unless clearly it is not. See also Roeder, 105 Wn.2d at 572.
Railroad deeds are unique in that they are an exception to the general rule that a deed in statutory warranty or quitclaim form passes full fee title. On many prior occasions this court has held that a railroad deed in the form of a statutory warranty deed passes only an easement, and nothing more. Morsbach, 152 Wash. at 565-69; Roeder, 105 Wn.2d at 572 (citing Veach, 92 Wn.2d at 574).
Where the deed language sends mixed signals, we follow the easement track, not the fee. 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 7.9, at 464 (1995) ("[T]he Washington decisions involving disputed language seem to favor the granting of an easement, though they do not say so in so many words.”); King County v. Squire Inv. Co., 59 Wn. App. 888, 893, 801 P.2d 1022 (1990) ("Previous Washington cases show a strong tendency to construe such rights of way as easements.”), review denied, 116 Wn.2d 1021, 811 P.2d 219 (1991); cf. Swan, 37 Wn.2d at 536 (where the deed is a mixture of two ideas the easement conclusion follows). The black letter rule in this jurisdiction states:
[I]t is elementary that, in cases where the granting clause of a deed declares the purpose of a grant to be a right of way for a railroad, the deed passes an easement only, not a fee, though it be in the usual form of a full warranty deed. 1 Thompson on Real Property, § 421.
Morsbach v. Thurston County, 152 Wash. 562, 565, 278 P. 686 (1929) (emphasis added). The search for intent ends when the purpose is found. This rule is firmly established and has been consistently followed from Morsbach in 1929 to Harris in 1993. About this there can be no doubt. See Harris, 120 Wn.2d at 727, 738. Likewise it is also the rule followed in many other jurisdictions. See A. E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973, 984-90 (1966).
The majority in essence defeats the common sense of *452this rule of intent by holding an easement is not created unless the magic words "right of way” are contained in the "granting clause.” See Sherman v. Petroleum Exploration, 132 A.L.R. 137 (1941); A. E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 962-1039 (1966). However, Morsbach does not narrowly define "granting clause” nor does it require the right of way purpose be expressed in any particular words. The deeds in this case each have multiple granting clauses as each clause further describes the actual scope of the grant, not just the first clause. The last clause, which mentions fee simple title together with that which might be acquired through eminent domain, is also a granting clause. Morsbach, 152 Wash. at 566 (granting clause includes description of property conveyed). Motive, purpose, and intent are not necessarily the same; however, normally they are consistent and closely related. Where the purpose is right of way, the inference follows that it was the intent of the parties to grant what is necessary to accomplish that purpose. Here, an easement.
In Morsbach this court rejected a similar argument made by the county that the granting clause of the deed did not include the words "right of way . . . for the construction of . . . [a] railroad . . . .” The court held: "But the appellant delimits the supposed granting clause too much. The granting clause must also include the property conveyed, so that it may be identified.” Id. at 566.
The majority ignores the ultimate reason for this inquiry (was it the intention of the parties to convey a right to use the land for the purpose of operating a railroad, or was it, on the other hand, their intent to convey an absolute fee title)12 by ignoring the established rule of construction in such cases that the intention of the parties, insofar as the same can be determined from the face *453of the deed, must be gleaned from the entire instrument,13 not a particular word or phrase placed here or there, or the absence thereof. As we said in Roeder, "The particular purpose for which the land was being conveyed was thus emphasized throughout the deed.” Roeder, 105 Wn.2d at 573.
The majority continues down the wrong track by giving "special significance to the words 'right of way’ in railroad deeds,” Majority op. at 438, finding the absence of these precise words in these deeds overpowering in significance. However significant to the majority, no reason is advanced why its absence should have been significant to the parties to the original deeds. But it is the intent of the parties which should control. There are different ways to express the same intent.
Morsbach relies heavily upon Thompson on Real Property for the basic rule in such situations, as here, where the railroad is afforded a private right of eminent domain to aid its right of way acquisitions:
A grant of a right of way to a railroad company is the grant of an easement merely, and the fee remains in the grantor .... It is held that a deed conveying land to a railroad for a right of way gives the railroad no more rights than it would have acquired by condemnation .... 1 Thompson on Real Property, § 420.
Morsbach, 152 Wash. at 574.
While the deed in Morsbach contained the words "right of way,” and those specific words do not appear in the deeds considered in this case, there is no doubt that the purpose of the conveyance was for operation of a railroad only, and all Washington cases14 construing deeds to *454railroad companies executed in the early 1900s have found easements, regardless of form.
Unless we are to disregard Judge Learned Hand’s admonition that we should not "make a fortress out of the dictionary,”15 I suggest we fulfill the intention of the parties to these early nineteenth century deeds, not fault farmers for not rewriting the preprinted deeds drafted by the railroad as we think Philadelphia lawyers might.
The majority cites "Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973 (1966),” Majority op. at 436, but does not discuss the principal case in the annotation, Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 370 P.2d 419, 6 A.L.R.3d 962 (1962). That case is especially significant because it follows a long line of consistent cases back to Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208 (1905) as did the leading Washington case, Morsbach. Abercrombie is the mother of all railroad cases in both jurisdictions. Sanders faithfully follows Abercrombie and summarizes the general, rule that railroad rights of way are easements, unless the deed clearly, unambiguously, and absolutely indicates otherwise.16
The deed in Sanders was very similar in form to the deeds here. The words "right of way” did not appear anywhere. The reference to the purpose of the grant, construction, and operation of a railroad does not appear *455in the grant of the land itself, but only after the word "together” in the section authorizing the railroad to encroach on other land owned by the grantor. This is analogous to the deeds in our present case which grant " 'a fee simple title to said strip of land, together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain.’ ” Majority op. at 435 (quoting Clerk’s Papers (Bailey) at 532).
Rejecting basically the same arguments which the majority accepts here, the Kansas Supreme Court repaired to the fundamental guiding principle and its reason.
We have held that when land, is devoted to railroad purposes it is immaterial whether the railway company acquired it by virtue of an easement, by condemnation, right-of-way deed, or other conveyance. If or when it ceases to be used for railway purposes, the land concerned returns to its prior status as an integral part of the freehold to which it belonged prior to its subjection to use for railway purposes. This court has uniformly held that railroads do not own fee titles to narrow strips [of land] taken as right-of-way, regardless of whether they are taken by condemnation or right-of-way deed. The rule is in conformity with this state’s long-standing public policy and gives full effect to the intent of the parties who execute right-of-way deeds rather than going through lengthy and expensive condemnation proceedings. [Citing Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208 (1905), other citations omitted.]
Sanders, 189 Kan. at 541-42, 370 P.2d at 423 (emphasis added).
To summarize, the intent of the parties is controlling as to whether the parties intended to grant a railroad right of way or transfer a fee title. The evidence of that intent is derived from (1) deed language taken as a whole, (2) circumstances surrounding the execution of the deed, and (3) the subsequent conduct of the parties. While the majority concedes, as it must, the purpose of this conveyance was to convey a railroad right of way based upon these enumerated factors, the majority derails when it claims *456identifying the purpose of the conveyance does not resolve the issue:
There is no question Milwaukee acquired the property for railroad purposes under these deeds. Identifying the purpose of the conveyance, however, does not resolve the issue at hand because the railroad can own rights of way in fee simple or as easements. Roeder, 105 Wn.2d at 571; Harris, 120 Wn.2d at 738.
Majority op. at 440. While Roeder and Harris do indeed stand for the proposition that a railroad can own rights of way in fee simple or as easements (as do Abercrombie and Sanders), neither case supports the purported proposition that "[i]dentifying the purpose of the conveyance, however, does not resolve the issue . . . .” Majority op. at 440 (emphasis added). Of course it does. Morsbach clearly holds a deed to a railroad should be "construed as a whole and in the light of the purpose for which it was made . . . .” Morsbach, 152 Wash. at 567. If there were nothing in the deed to suggest that the grant of this strip of land was for the purpose of constructing a functioning railroad, then the majority might have an argument. However, where it follows from language in the deed and/or extrinsic circumstances that the conveyance was for right of way purposes, the conveyance is construed as an easement because only an easement is necessary to fulfill that purpose. Were it the intent of the parties to grant a fee, the deed would have simply done so without reference to a railroad use, or eminent domain.
Is not that the "intent” we seek to determine? If the majority is not looking for the intended purpose of the conveyance, what is it looking for? I’m sure farmer Brown wouldn’t understand the majority’s logic on this point.
As the majority itself admits, the evidence of intent to transfer the appropriate property interest for the purpose of a railroad right of way is quite overwhelming whether that purpose (or intent) be discerned from the deed language, the circumstances surrounding the execution of the deed, or the subsequent conduct of the parties.
*457Most of these deeds are on preprinted forms drafted by the railroad. The railroad was a sophisticated, well financed, and organized party, undoubtedly represented by counsel. Landowners stood at a disadvantage to railroads in the early 1900s. It approached the landowners to purchase their land after it had already laid out or even built its rail line over the land.17 See A.E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973, 1034-38 (1966) (citing Gates v. Missouri, K. & T. Ry., 13 F. Supp. 466 (Okla. 1934) (deed in lieu of condemnation conveys a fee); Highland Realty Co. v. City of San Rafael, 46 Cal. 2d 669, 298 P.2d 15 (1956) (where railway built before the conveyance in lieu of condemnation proceeding, it is an easement)). The railroad and the landowners knew that the railroad possessed the power of eminent domain and would end up in possession of the right of way, if it were not already. These were not arm’s-length transactions between parties of equal bargaining power. For these reasons, the deeds, at least the preprinted portions of them, must be construed against the railroad. "[C]ontract language ... is construed most strongly against the party who drafted it, or whose attorney prepared it.” Guy Stickney, Inc. v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7 (1966) (citations omitted). "[A] deed reference to a 'right of way’ for road or railway purposes is usually construed as conveying only an easement, since most rights of way are indeed easements.” Roger A. Cunningham, et al., The Law op Property § 11.1, at 718 (1984). "[T]he wise drafter [here, the railroad] will make clear what sort of interest is intended.” Id. at *458718.18 Construing these deeds against the drafter buttresses the easement conclusion.
The deeds taken together also evidence multiple acquisitions of interests in contiguous parcels, suggesting a railroad use consistent with an easement, but inconsistent with a fee title normally associated with larger parcels for forest land, orchards, or hotels. Compare Swan, 37 Wn.2d at 536 (adjacent right of way indicative of extension). The actual consideration19 is nominal, e.g., $10.00. This is more consistent with the lesser estate of an easement than the greater fee estate. Of course the grantee of the deed is a railroad company, and, for the most part, railroad companies operate railroads. The property itself is " 'a strip of land, one hundred feet in width ....’” Majority op. at 434 (quoting Clerk’s Papers (Bailey) at 532). This is consistent with a railroad use and inconsistent with other uses. Compare King County v. Hanson Inv. Co., 34 Wn.2d 112, 208 P.2d 113 (1949) (where a fee title was found in part because it was a large triangular-shaped parcel of property, not a narrow strip of land). See Majority op. at 437. The deeds generally reference "over and across.” This language is certainly indicative of a railroad right of way *459and inconsistent with an absolute fee which would convey, for example, the mineral rights as well, which are not "over,” but "under.”
Were this not enough, the deeds actually define the land grant in terms of " 'fifty feet in width on each side of the center line of the Railway of said Company, as now located and established over and across said land.’ ” Majority op. at 434 (quoting Clerk’s Papers (Bailey) at 532). Railway means railway, not trail. The deeds mention " 'extra widths for excavations, embankments, depositing waste earth, and borrowing pits . . . ., the right to protect cuts which may be made on the land . . ., [and] the right to erect and maintain portable snow fences ....,’ ” etc., all of which unmistakably indicate a railroad use. Id.
To view this from another perspective, is it reasonable to believe these parties intended any use but a railroad given the language of the deed?
Finally the deeds also grant " 'a fee simple title to said strip of land, together with all rights, privileges and immunities that might be acquired by the exercise of the right of eminent domain.’ ” Id. Although this reference to a fee title could be consistent with a determinable fee (which terminates upon railroad abandonment and yields the same result as an easement upon abandonment), see Morsbach, 152 Wash. at 568, the great weight of authority does not make the reference to the fee title dispositive in any event. See King County v. Squire Inv. Co., 59 Wn. App. 888, 892-94, 801 P.2d 1022 (1990), review denied, 116 Wn.2d 1021, 811 P.2d 219 (1991).
However, the reference to eminent domain is a very important indication of right of way intent.
First, there would be no reason for the reference, and these words would be mere surplusage, if it were the intent of these parties to simply grant the railroad an absolute fee title. There is nothing which could be added to an absolute fee estate by eminent domain beyond that which is not already there.
Second, the reference to eminent domain infers this *460deed was given in lieu of that which could be acquired through eminent domain, i.e., only an easement. The fact that the railroad laid out or even built the railway over and across the land before acquiring title shows that they intended to take by eminent domain or the threat thereof. This conclusion is not changed by the fact that Neitzel v. Spokane Int’l Ry., 65 Wash. 100, 117 P. 864 (1911) was decided shortly after these deeds were executed and appears to be the first definitive holding from the Washington State Supreme Court to that effect. Neitzel did not purport to announce a new principle of law but to recognize an existing one. Washington Constitution article I, section 16 (amend. IX), from the date of its adoption in 1889, as well as the uniform law in virtually every other state jurisdiction, all predating these deeds, held railroads might acquire easements only by eminent domain. Nietzel, 65 Wash. at 110-11.
There is a reason railroads may acquire only an easement, not a fee title, by eminent domain. The reason is that an easement (or determinable fee) is all that is necessary for the railroad to accomplish its public purpose. The seizure of more than that which is necessary to accomplish a public purpose is prohibited by the Washington declaration of rights, Const, art. I, § 16. The railway could have obtained a right of way easement for railroad purposes through exercise of its eminent domain power but it could not have obtained a fee. (Nor could it have obtained any interest in land for use as a recreational trail through eminent domain.) Once again, this express reference to eminent domain is indicative of an intent to grant a railroad right of way by easement rather than an absolute fee. Additionally, it is also an extrinsic circumstance even absent the express deed reference.
Aside from the actual language of the deed, other factors seem almost self-evident in their implication of railroad right of way intent. The "circumstances surrounding the execution of the deed” include buying up many similar parcels of land for a railroad right of way on pre*461printed railroad deed forms, often using the same Seattle notary who apparently traveled to the landowners with the railroad agent. Clerk’s Papers (Bailey) at 742. Of course the subsequent conduct of the parties is precisely what one would expect from a right of way intention: construction and use of a railroad line.
The majority claims property owners were more interested in the benefits of rail service than obtaining fair value for their property. I doubt that, since one probably enjoys railroads more if they go across someone else’s land. However even if the majority’s point was well taken, property owners have now been deprived of the benefit of rail service by the railroad’s abandonment of the line. In the State’s hands all these property owners have left to look forward to are interlopers building campfires and leaving behind their trash, easy access to trespassers, and loss of personal privacy—not benefits from rail service. If these deeds granted a fee, the motive, purpose, and intent for granting that fee vanished when the tracks were torn up. But if an easement was granted the property reverts upon abandonment to the landowner and there is no problem. If so, farmer Brown was not so dumb after all.
Would farmer Brown have sold his property to this railroad in fee simple absolute for $10.00 if (1) the property were to be used for a public trail, not rail, and (2) the railroad would not have been able to forcibly acquire the property by eminent domain absent farmer Brown’s consent?
I do not here dwell on the specifics of the other deeds and transactions, finding my divergence from the majority miles up the track from these specifics. Suffice it to say that appropriately defined principles will yield the same result in each case.
I do, however, concur in the result that fee simple absolute title to the so-called "charter parcels,” the former railroad rights of way, is vested in the State of Washington, but write separately to briefly state the essence of the holding.
*462Unlike the other "deed parcels” at issue in this case, these narrow strips of land underlying the former railroad rights of way were never a part of the adjoining property owners’ (abutters’) chain of title. Their only claim to the land is under a statute, 43 U.S.C.A. § 912, passed by Congress, which in effect made a conditional promise of a future gift to abutters. That condition, a declaration of abandonment of the railroad right of way by Congress or a court, never occurred. Abandonment in fact (non-use) and a declaration of abandonment are two very different legal statues. In the Milwaukee Railroad Restructuring Act, 45 U.S.C.A. §§ 901-922, Congress prevented the condition from ever occurring by authorizing a sale prior to any declaration of abandonment. Alternatively, this act could be viewed as a partial repeal of 43 U.S.C.A. § 912, which authorized the gift, at least with respect to these particular rights of way. Either way, abutters acquired no vested rights in the land and no title to the charter parcels. What Congress promised to give abutters with one hand, it took away with the other. Congressional improvidence, if any, is beyond the power of this court to remedy. But fulfillment of private intent is our charge.
Judge Friel’s discussion of this topic in his memorandum opinion is a benchmark of excellence.
Scott v. Wallitner, 49 Wn.2d 161, 162, 299 P.2d 204 (1956) (citing Morsbach v. Thurston County, 152 Wash. 562, 278 P.2d. 686 (1929); Swan v. O’Leary, 37 Wn.2d 533, 225 P.2d 199 (1950); A.M.S., Annotation, Deed to Railroad Company as Conveying Fee or Easement, 132 A.L.R. 142 (1941)).
Morsbach, 152 Wash. at 571; Roeder, 105 Wn.2d at 572; Veach, 92 Wn.2d at 573.
In every case where this court has considered a deed conveying an interest in a narrow strip of land to a railroad company we have found only easements. See Biles v. Tacoma O. & G H. R.R., 5 Wash. 509, 32 P. 211 (1893); Reichenbach v. Washington Short Line Ry., 10 Wash. 357, 360, 38 P. 1126 (1894); Pacific Iron *454Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 111 P. 578 (1910); Neitzel v. Spokane Int’l Ry., 65 Wash. 100, 117 P. 864 (1911); Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686 (1929); Swan v. O’Leary, 37 Wn.2d 533, 225 P.2d 199 (1950); Veach v. Culp, 92 Wn.2d. 570, 599 P.2d 526 (1979); Zobrist v. Culp, 95 Wn.2d 556, 627 P.2d 1308 (1981); Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 P.2d 855 (1986); Lawson v. State, 107 Wn.2d. 444, 730 P.2d 1308 (1986); see also King County v. Squire Inv. Co., 59 Wn. App. 888, 801 P.2d 1022 (1990), review denied, 116 Wn.2d 1021, 811 P.2d 219 (1991).
Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945).
Our cases also consider extraneous circumstances regardless of deed language, no matter how clear. Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 742-43, 844 P.2d 1006 (1993) (citing Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).
The preprinted railroad deed language specifies " 'HEREBY CONVEYING a strip, belt or piece of land fifty feet in width on each side of the center line of the Railway of said Company, as now located and established over and across said land.’ ” Majority op. at 434 (quoting Clerk’s Papers (Bailey) at 532) (emphasis added). As Judge Friel noted: "It was not an uncommon instance for the formal acquisition of the railroad to occur after the railroad was built and in use.” Mem. Decision by Judge Friel (Bailey) at 6; Clerk’s Papers (Bailey) at 742.
Generally, as a last resort in deed interpretation we construe against the grantor. Apparently, this rule is premised on the custom that the grantor prepares the deed. In Harris, the Court of Appeals held that that rule of construction was not helpful because the grantee had drafted the proposed deed language in the purchase and sale agreement. Harris v. Ski Park Farms, Inc., 62 Wn. App 371, 375, 814 P.2d 684 (1991), cert. denied, 510 U.S. 1047, 114 S. Ct. 697, 126 L. Ed. 2d 664 (1994).
Deed language omitted from the majority opinion makes it clear $5.00 or $10.00 was the total, actual consideration: "And said Grantor . . . covenant[s] and agreefs] that said grants are upon no other consideration than that named herein . . . .” Clerk’s Papers (Bailey) at 532. While it is the custom today to state nominal consideration in deeds, it apparently was not the custom in the early 1900s. See also 6 A.L.R.3d 1036-39 (citing Esso Standard Oil Co. v. Texas & New Orleans Ry., 127 So. 2d 551 (La. Ct. App. 1961) (same consideration as recommended in prior condemnation proceedings, easement); Hodges v. Owings, 178 Md. 300, 13 A.2d 338 (1940) (grantor anxious to have railroad built and nominal consideration, easement); see also A.E. Korpela, Annotation, Deed to Railroad Company as Conveying Fee or Easement, 6 A.L.R.3d 973, 1038-39 (1966) (discussing seven cases where fair market value paid resulted in a fee, five cases where nominal consideration resulted in easements, and three cases where form of deed and four corners interpretation outweighed nominal consideration in favor of finding a fee).