¶42 Although the majority claims that it merely "builds" upon Justice Charles W. Johnson's comprehensive approach in Brown v.State, 130 Wn.2d 430, 924 P.2d 908 (1996), majority at 263 n. 5, that is unfortunately not true. Instead it tears down the framework constructed there. Brown's analysis provides a framework for resolving the question whether a grant in a deed to a railway is of an easement or fee simple interest. The crucial starting point is the presumption that "where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, [the court]must find that the grantors intended to convey fee simpletitle unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed." Brown,130 Wn.2d at 437 (emphasis added). Whether a property owner has met the burden of showing intent that an easement, instead, has been conveyed, and thus has overcome the presumption, is determined according to a three-part analysis identified inBrown. This inquiry includes, among other things, examination of any language that relates to purpose or use or otherwise limits the conveyance, as well as language indicating conveyance of a right of way rather than a strip of land. Id. at 438. Thus, the parties' use of the words "right of way" in a deed is accounted for in Brown's analysis.
¶43 The majority expressly recognizes that Brown "has largely reconciled the conflicting presumptions and case law" that had previously led to disarray and conflicting decisions in this area. Majority at 263 n. 5. But the majority then proposes the existence of two opposing presumptions, *Page 280 i.e., the presumption in Brown that a fee simple has been conveyed arising from use of a statutory warranty deed form and language conveying a strip of land, and a second presumption not included in Brown, i.e., that an easement has been conveyed arising from use of the words "right of way" in the granting and habendum clauses. Both presumptions cannot be applied in the same case in any coherent way, because if there is no other evidence of intent contrary to the presumption, the presumption dictates the result. This must be so because, in a case like this one, the first presumption would lead to the conclusion that a fee simple interest was conveyed, while the second presumption would lead to the conclusion that an easement interest was conveyed.
¶44 The majority thus embraces conflicting presumptions and so returns the law to the state of disarray that preceded Brown. Given that the court in Brown exhaustively examined the case law in this area and carefully and thoughtfully set forth an analysis designed to provide for consistent, thorough, and careful decision making, it is unfortunate that the majority departs from Brown under the guise of "building" on that analysis.
¶45 Not only is the majority's approach inconsistent withBrown, it is inconsistent with legislative intent. RCW64.04.030, which provides the form for a statutory warranty deed, states, like its predecessor statutes did, that a warranty deed substantially in the form provided and "`duly executed, shall be deemed and held a conveyance in fee simple.'" See also Darrin v.Humes, 60 Wash. 537, 538, 111 P. 767 (1910) (citing and quoting REM. BAL. CODE § 8747 (a predecessor to RCW 64.04.030) which stated that "a warranty deed, when `duly executed, shall be deemed and held a conveyance in fee simple'"); LAWS OF 1886, § 3, at 177-78 (same language). Thus, when this court in Brown declared that the starting presumption for a deed in statutory warranty form is that a fee simple was conveyed, it carried *Page 281 out the intent manifest in the warranty deed statute.22 But the majority, in concluding that use of the words "right of way" gives rise to a second presumption that trumps the presumption of a fee simple conveyance, ignores long standing express legislative intent.
¶46 Finally, the majority's approach is unnecessary. As mentioned, the analysis set out in Brown adequately addresses the effect of the parties' use of the words "right of way" in the deed and provides for consideration of whether use of these words shows intent to convey an easement. There is no need to resort to a second presumption arising from use of those words in the granting and habendum clauses.
¶47 Correct application of the framework in Brown, beginning with the presumption that a fee simple interest was conveyed and then considering all the factors and circumstances that the court identified in Brown for deciding whether that presumption has been overcome, leads to the conclusion that the original parties to the 1905 deed intended that the deed convey a fee simple interest, not an easement. Accordingly, I dissent.
¶48 Moreover, even if one assumes for the sake of argument that an easement rather than a fee was conveyed, the installation by Level 3 Communications, LLC (Level 3), of a fiber optic telecommunication cable on the railroad line was a permissible incidental use for which no additional compensation was due to Kershaw Sunnyside Ranches, Inc. (Kershaw). The majority's conclusion that the incidental use doctrine does not apply rests on its erroneous view that a proviso in RCW 80.36.040 applies and requires Level 3 to exercise the right of eminent domain before installing underground lines along the right of way. But the proviso does not apply where it is the railroad's right to use its "easement" that is at issue, as here, rather than a telecommunications company's right to utilize the right of way. *Page 282 ANALYSIS ¶49 It is undisputed that the 1905 deed between the parties' predecessors in interest was in the form of a statutory warranty deed. The deed conveyed "a strip of land seventy five feet wide, in, along, over and through the hereinafter described land . . . [s]aid strip of land being a certain strip of land seventy five feet wide across" and describing the location of the land. Clerk's Papers (CP) at 654. Thus, the deed carries the presumption of a conveyance of a fee simple interest because it was in the form of a statutory warranty deed and conveyed a definite strip of land. See Brown, 130 Wn.2d at 437; RCW64.04.030. Accordingly, the question is whether there is sufficient evidence to overcome this presumption and show that the conveyance of an easement, instead, was intended. This determination is to be made by applying the three-part analysis set out in Brown. First, the language of the deed is examined under factors set out in Brown and derived from Swan v.O'Leary, 37 Wn.2d 533, 535, 225 P.2d 199 (1950). Significantly, the court in Brown specifically and expressly said that these factors must be considered to determine "whether the property owners have met their burden of showing that the original parties intended to adapt the statutory form to grant" an easement rather than a fee simple. Brown, 130 Wn.2d at 438 Thus, the court inBrown contemplated that these factors are not, contrary to the majority's characterization, majority at 265, mere guidelines for reading railroad deed language, but instead they are utilized to decide whether the presumption that a fee simple was conveyed has been overcome.
¶50 The factors are:
Brown, 130 Wn.2d at 438 (citing Swan, 37 Wn.2d at 535-46). In addition to applying these factors and considering the language of the deed, a court must also consider the circumstances surrounding the execution of the deed and the subsequent conduct of the parties to decide whether the presumption of a fee simple conveyance has been overcome. Id.(1) whether the deed conveyed a strip of land, and did not contain additional language relating to the use or purpose to which the land was to be put, or in other ways limiting the estate conveyed; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip *Page 283 thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal; and (7) whether the conveyance did or did not contain a habendum clause, and many other considerations suggested by the language of the particular deed.
¶51 Turning first to the language of the deed and considering the first and second Brown-Swan factors, the deed conveys a definite strip of land, 75 feet wide. The granting clause also states that the land is "to be used . . . as a right of way for a railway forever, together with the perpetual right to construct, maintain and operate a railway or railways over and across the same." CP at 654. Use of the term "right of way," in and of itself, does not establish intent to grant an easement only because "a railroad can own rights of way in fee simple or as easements." Brown, 130 Wn.2d at 440. However, if the term is used to mean a limitation on the use of the property, then it may indicate intent to convey an easement. Brown,130 Wn.2d at 440-41, 441-42. There is thus ambiguity in the granting clause because, while it describes conveyance of a strip of land, it also refers to use of a right of way for railroad purposes. With respect to the third factor, however, and conversely, the deed did not convey merely a right of way over a tract of land but instead conveyed a definite strip of land.
¶52 Given such ambiguity, the use of the term "right of way," even as a limitation on use of the land, does not necessarily favor the conclusion that an easement was conveyed. Instead,Brown is clear that while such language *Page 284 may determine the outcome in a particular case, the out-come depends upon all of the language in the deed considered in light of the Brown-Swan factors, the circumstances surrounding the execution of the deed, and the subsequent conduct of the parties. It must be remembered that while the court in Brown recognized that language respecting a grant of a right of way for the purpose of a railway is significant, and may indicate intent that an easement has been conveyed, Brown does not state that any presumption of an easement thereby arises. Brown in fact contemplates that the court will no longer rely on conflicting presumptions as the majority unfortunately does. Instead, Brown emphasizes, as does the warranty deed statute, RCW 64.04.030 and its predecessors, that the starting point in this case is the presumption that a fee simple interest was conveyed.
¶53 Turning to the fourth factor, while the granting clause states that the railroad is granted the "right to construct, maintain and operate a railway" over the land, the deed does not state that only this privilege is granted. As to the fifth factor, there is no language in the deed providing that if the railroad ceased to operate, the land would revert to the grantor.23 The absence of a reverter clause does not render this Brown-Swan factor inapplicable, contrary to the majority's view, majority at 268, but instead favors the conclusion that a fee simple interest was conveyed. Indeed, the deed here not only does not contain a reverter clause, it affirmatively states that the land is to be held by the grantee, its successors or assigns "forever." CP at 654. The sixth factor concerns the consideration for the conveyance. Here, the consideration expressed, $1,000, was a substantial amount of money in 1905 when the deed was executed. See Brown,130 Wn.2d at 444 (consideration of $1,310 expressed in a deed executed between 1906 and 1910 was substantial). The seventh factor relates to *Page 285 whether a habendum clause exists. The 1905 deed contains a habendum clause that favors conveyance of a fee simple because it recites that the grantors conveyed "TO HAVE AND TO HOLD the said right of way, strip of land, easements, privileges and appurtenances to it . . . forever." CP at 654-55 (emphasis added). The majority agrees this factor favors the grant of a fee simple interest. In addition, the deed sets out obligations of the railroad to construct and maintain crossings over the strip of land. As the court in Brown observed, such securing of easements to the grantors is consistent with conveyance of a fee simple and would likely be unnecessary if the railroad only held a right of way as an easement. Brown, 130 Wn.2d at 442 n. 9.
¶54 Contrary to the majority's conclusion, application of theBrown-Swan factors to the language of the deed does not lead to the conclusion that the presumption that a fee simple interest was conveyed has been overcome. This is particularly so given the conveyance of a definite strip of land, the affirmation that the strip of land was to be held by the grantee, its successors and assigns "forever," and the substantial consideration expressed in the deed. The parties have not presented evidence of any circumstances surrounding the execution of the deed or subsequent conduct of the parties that overrides the presumption either.24
¶55 I would hold that the 1905 deed conveyed a fee simple interest.
¶56 Even if, however, one assumes that an easement was conveyed instead, Level 3's installation of underground fiber optics cables along the railroad right of way is a permitted use under the incidental use doctrine. The majority, *Page 286 however, misapplies RCW 80.36.040 to preclude the cable installation absent Level 3's exercise of the right of eminent domain. The problem with the majority's approach is that it mixes up the rights of telecommunications companies and the separate rights of railroad companies.
¶57 Under article XII, section 19 of the Washington Constitution a telecommunications company has the right to construct and maintain telegraph and telephone lines within the state through the power of eminent domain. RCW 80.36.010 implements this constitutional grant of eminent domain power. RCW 80.36.030 provides that telecommunications companies may appropriate land necessary for its telecommunications lines, including portions of railroad companies' rights of way. RCW 80.36.040 provides that telecommunications companies have the right to construct and maintain telecommunications lines for public traffic on any public road, street, or highway and along any railroad corporations' rights of way. RCW 80.36.050 declares that every railroad operating in the state is a "post road," and the corporation or company owning the railroad must allow telephone and telegraph companies to construct and maintain lines along the right of way. The proviso in RCW 80.36.040 relied on by the majority provides, however, that if the grant of a right of way to the railroad was not a public grant, the right to construct and maintain lines along the railroad right of way can be obtained only through exercise of the power of eminent domain.
¶58 In contrast, the incidental use doctrine concerns the right of a railroad company to use its easement to conduct not only railroad related activities but also any other incidental activities that are not inconsistent with and do not interfere with the operation of the railroad. Danaya C. Wright Jeffrey M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, UtilityLicenses, and the Shifting Scope of Railroad Easements from theNineteenth to the Twenty-First Centuries, 27 ECOLOGY L.Q. 351, 421 (2000). Thus, where a railroad company enters an agreement with a third party telecommunications company to install fiber optic cable *Page 287 along the railroad's right of way, the question is not whether the telecommunications company has lawfully exercised its right to install the cable, but rather whether the railroad company has lawfully exercised its right as holder of the easement to permit an incidental use of its right of way. A different question would be presented if the railroad company did not agree to installation of the cable — in such a case the provisions of the constitution and the statutes regarding a telecommunications company's right to install the cable along a railroad's right of way would come into play, and whether the telecommunications company would need to exercise the right of eminent domain would depend upon whether the grant of the right of way to the railroad was a public grant.
¶59 As a result of confusing the two distinct rights, the majority has applied a statutory proviso that does not apply in this case at all.
¶60 Because the proviso in RCW 80.36.040 does not apply, the question remains whether installation of fiber optic cable is a use that is permitted under the incidental use doctrine. Underlying the incidental use doctrine as it applies to railroad rights of way is the principle that such rights of way are unique and often include "`exclusive control of all the land within the lines.'" Wright Hester, 27 ECOLOGY L.Q. at 421 (quoting GrandTrunk R.R. v. Richardson, 91 U.S. (1 Otto) 454, 468,23 L. Ed. 356 (1875)); see Morsbach v. Thurston County, 152 Wash. 562,569, 278 P. 686 (1929) ("[a] railroad right of way is a very substantial thing . . . more than a mere right of passage . . . more than an easement"); N. Pac. Ry. v. Tacoma Junk Co.,138 Wash. 1, 6, 244 P. 117 (1926) (quoting Roby v. N.Y. Cent. Hudson River R.R., 142 N.Y. 176, 180, 36 N.E. 1053 (1894), with approval for the proposition that the owner of the railroad easement is "`entitled to the exclusive use, possession, and control of the land, and the owner of the fee has no right to use, occupy, or interfere with the same in any manner whatever'"). *Page 288
¶61 In State ex rel. York v. Board of County Commissioners,28 Wn.2d 891, 903, 184 P.2d 577 (1947), the incidental use doctrine was applied in this state to public highway rights of way. There, fee owners over whose property certain streets and roads ran as easements sought a writ of mandamus compelling a county board to rescind franchise agreements that allowed an electric company to install power lines on the public roads. The court held that highways are dedicated to the public use, and "[s]ubject to this primary use, highways may be put to any of the numerous incidental uses suitable to public thoroughfares, and with those uses the owner of the abutting land has no right to interfere." Id. at 903. The court explained that for the incidental use doctrine to apply, the use "must have some element of public benefit, and must not be inconsistent with the public use to which the highways are dedicated." Id. at 905. The landowners are entitled to compensation only if the incidental use creates an "unreasonable encroachment["] on their interests.Id. at 903.
¶62 While the parties have not cited Washington cases where the incidental use doctrine has been applied to railroad rights of way, the doctrine should apply. RCW 80.36.050 designates railroad rights of way as "post roads," as noted. The legislature has thus equated them to public roads and highways. This court has also treated railroad rights of way as "public highway[s], created for public purposes." Lawson v. State, 107 Wn.2d 444,449, 730 P.2d 1308 (1986) (citing Puget Sound Elec. Ry. v. R.R.Comm'n, 65 Wash. 75, 84, 117 P. 739 (1911)). By analogy to cases involving public highways, installation of fiber optic cable along a railroad right of way is an incidental use that imposes no additional burden on the servient estate. See McCullough v.Interstate Power Light Co., 163 Wash. 147, 148, 150-51,300 P. 165 (1931) (installation along public highways of poles and wires for carrying electricity is an incidental use for public highways and poses no additional burden on servient estate). Fiber optic cable lines have an element of public benefit, and their installation is not *Page 289 inconsistent with the public use to which railroad rights of way are dedicated. Given the railroad's exclusive right to use its easement, no additional burden is imposed on the servient estate. Other courts have concluded that installation of fiber optic cable along a railroad right of way does not exceed the scope of the easement or constitute an additional burden on the servient estate. See, e.g., Int'l Paper Co. v. MCI Worldcom NetworkServs., Inc., 202 F. Supp. 2d 895, 899-903 (W.D. Ark. 2002);Hynek v. MCI World Commc'ns, Inc., 202 F. Supp. 2d 831, 834-39 (N.D. Ind. 2002); Mellon v. S. Pac. Transp. Co.,750 F. Supp. 226, 229-31 (W.D. Tex. 1990).
¶63 I would hold that the installation of fiber optic cable along the right of way is a permitted incidental use and that therefore the installation of the underground cable along the right of way did not constitute a trespass. Level 3 was not required to exercise its eminent domain power before laying the fiber optic cable within the right of way.
¶64 For the reasons stated, I dissent from the majority opinion.
C. JOHNSON and OWENS, JJ., concur with MADSEN, J.