dissenting.
I respectfully dissent from the majority decision. In my view, the decision in Hefty v. All Other Members of the Certified Settlement Class, 680 N.E.2d 843 (Ind.1997), its predecessors and progeny, and a fair reading of the deeds at issue dictate that the Railroad was granted easements and not fee simple in the parcels.
As noted by the majority, generally, use of the phrase “right of way” imports the conveyance of an easement only. See Tazian v. Cline, 686 N.E.2d 95, 98 (Ind.1997); Hefty, 680 N.E.2d at 855; Brown v. Penn Central Corp., 510 N.E.2d 641, 644 (Ind. 1987). Also, courts examine the amount of *893the consideration paid to determine whether the grantors intended to convey a fee simple or an easement. Tazian, 686 N.E.2d at 99. If the amount of consideration is nominal or expressed as a benefit to be obtained by the future construction of the railroad, the consideration is indicative of an intent to convey an easement. Id.
Here, in my opinion, both deeds convey only a “right of way” for nominal consideration. Given that the public policy of Indiana favors finding easements rather than conveyances in fee simple, see Hefty, 680 N.E.2d at 854, and the above mentioned factors, I would vote to affirm the trial court in all matters.