(dissenting) — Like the majority, I agree this case turns on the language of the easement. The easement was granted "for the purpose of running and operating a Railroad thereover", and would revert to the grantor if the grantee "shall at any time cease or fail to use the right of way ... for the purpose of running and operating a Railroad over the same for the continuous period of 12 consecutive months".
It is undisputed that the Interstate Commerce Commission did not grant authority to abandon the railroad line which ran over the easement in question until July 1, 1971. It is further undisputed the defendant operated its first train over the tracks in question on June 3, 1972. Finally, it is undisputed that until July 1, 1971, the Burlington Northern was in the words of the majority "obligated under the Interstate Commerce Commission regulations or orders to furnish freight transportation over this route to any person who might request it." In other words, until July 1, 1971, the only "purpose" for which the right-of-way in question could have been put to use by the grantee (Burlington Northern) was "running and operating a Railroad".
The fact that no trains ran over the right-of-way from *563June 5, 1970 to July 1, 1971 is immaterial. The instrument relied upon by the majority does not say trains had to run or operate over the right-of-way, only that it had to be used for the purpose of running and operating a railroad. Given the Interstate Commerce Commission regulations, there is no escaping that the only purpose for which the right-of-way could be used was for running and operating a railroad.
It is clear from the language of the easement that the parties contemplated a reversion to the grantor if the property was not used for the purpose of running and operating a railroad for more than 12 months. There is nothing in the easement to indicate the limitation of "12 consecutive months" was a requirement that trains in fact run on the track — only that the right-of-way must be used for that purpose. When that was the only purpose for which the right-of-way was in fact and in law available until July 1, 1971 and when railroad operations were resumed by June 3, 1972, it is apparent to me the requirements of the easement were met by the Burlington Northern and its successor, the defendant.
Although I would use other reasoning, I would affirm the Court of Appeals.
Utter and Hicks, JJ., concur with Dolliver, J.
Reconsideration denied July 10, 1981.