(dissenting).
Because I believe that Norton v. Duluth Transfer Ry., 129 Minn. 126, 151 N.W. 907 (1915), and Chicago Great W. R.R v. Zahner, 145 Minn. 312, 177 N.W. 350 (1920), are controlling and that the cases cited by the majority are distinguishable from this case in important respects, I respectfully dissent. As noted by the majority, the meaning our court accords “right of way” as used in the 1898 deed is outcome determinative because of the Marketable Title Act (hereinafter “MTA”), which is only applicable to and extinguishes interests that convey title, not easements. Minn. Stat. § 541.023 (2002).1 Applying the reasoning set forth in our precedent to the plain language of the 1898 Walker/Joyce deed (hereinafter “1898 deed”), in my view, suggests a conclusion that the interest conveyed by the grantors was an easement that was, in turn, abandoned.
The majority presents an accurate explanation of the distinction between a fee simple determinable and an easement, an analysis that becomes less clear when a deed references both “land” and a “right.” This confusion is often rooted in a deed’s use of the phrase “right of way,” which has a twofold meaning. This twofold meaning was addressed by the United States Supreme Court in Joy v. City of St. Louis, 138 U.S. 1, 48, 11 S.Ct. 243, 34 L.Ed. 843 (1891), when it articulated two possible interpretations of “right of way” as follows: “[The term ‘right of way’] sometimes is used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their road-bed.” However, the paramount concern in determining the rights of parties arising from a deed, as articulated by this court on numerous occasions, is that we must look to the intent of the parties, and the intent is to be gathered, not from any particular provision or clause of the document, but from an examination of the document as a whole, construing all of its provisions together. See e.g., Cement, Sand & Gravel Co. v. Agricultural Ins. Co. of Watertown, N.Y., 225 Minn. 211, 216, 30 N.W.2d 341, 345 (1947); Norton, 129 Minn, at 130, 151 N.W. at 908; Witt v. St. Paul & N.P. Ry. Co., 38 Minn. 122, 123, 35 N.W. 862, 864-65 (Minn.1888).
Thus, in order to discern what interest the 1898 deed conveyed, we must examine the intent of the grantors of the 1898 deed and Minnesota case law to determine whether a fee simple determinable or an *429easement was conveyed. To begin, we turn to Norton, the precedent of our court that interprets virtually identical deed language as that at issue here. The granting language of the Norton deed provided as follows:
“Witnesseth: That the said parties of the first part, in consideration of the sum of thirteen hundred and twenty-five dollars to them in hand * * * do, by these presents, grant, bargain, sell, and convey unto the said party of the second part, its successors and assigns, all that tract or parcel of land lying and being in the county of St. Louis, and state of Minnesota * * ⅜.”
129 Minn. at 130, 151 N.W. at 908. Like the 1898 deed at issue in the instant case, following a description of the land conveyed, the Norton deed set forth a haben-dum clause that read:
“To HAVE AND TO HOLD THE SAME * * * SO long as the same shall be used as a right of way for tracks and side tracks and a railroad way for its railroad cars, locomotives and trains and for proper appendages to such track or tracks and railway, and for any other uses consistent with or embraced in the purposes and general nature of the business of said grantee * *
Id. Examining the deed as a whole, we held in Norton that the language of the deed evinced the parties’ intention to convey an easement, stating, “The deed contains no language indicative of an intention that an absolute and unqualified title should pass to the grantee.” Id. at 131, 151 N.W. at 908. We acknowledged the “limitations upon the estate” in the haben-dum clause, and went on to hold:
The only conclusion, as it seems to us, is that the parties intended by the deed to convey to the company an easement only, and to vest in the company the right to hold and use the land so long as it was devoted to the purpose stated, and no longer.
Id. In reaching this holding we noted the absence of the word “forever” in the granting clause, which we viewed as a significant word, typically indicating the transfer of title. Id.
Subsequent to our decision in Norton, we interpreted even less explicit language than used in Norton as conveying an easement — and not a fee interest — to a railroad company. In Zahner, 145 Minn, at 314, 177 N.W. at 350, we held that a deed conveyed an easement when it first stated that the land in dispute was conveyed to the grantee, “its successors and assigns, forever,” and went on to convey, “such portions of lots three and four being deemed necessary and to be used for a track contemplated and to be laid by said Chicago Great Western Railway Company on said land for commercial purposes.” Id. In that case, we determined that the conveyance was an easement even though the granting clause contained the term “forever,” which we had typically interpreted as conveying a fee interest. See id. at 314, 177 N.W. at 351.
In the instant case, the grant of conveyance language expressly states that the conveyance is only for “so long as the said strips of land shall be used for Right of Way,” and does not include the term “forever.” Given the nearly identical language of the 1898 deed before us and the language at issue in the Norton deed, as well as our broad view of what constitutes an easement in Zahner, I would conclude that the 1898 deed conveys an easement.
The majority argues that Zahner and Norton are not on point because both cases deal with possible fee simple absolutes. This assertion by the majority is overstated. In Zahner, the court referred only to a “fee,” and did not specify whether the “fee” considered was absolute, de*430terminable, or otherwise. 145 Minn. at 314, 177 N.W. at 350. In Norton, it was the appellant who framed the argument as one between an absolute fee title and an easement. We, however, framed the appellant’s argument in Norton as follows: “That the Norton deed to the transfer company conveyed an absolute fee title limited only as to use, namely, railroad right of way purposes * * 129 Minn. at 129, 151 N.W. at 908. An “absolute fee title limited only as to use” is a fee simple determinable. See id. Within that framework — fee simple determinable versus easement — we held that, “The deed contains no language indicative of an intention that an absolute and unqualified title should pass to the grantee.” Id. at 131, 151 N.W. at 908. We were free to conclude that the conveyance was a fee simple determinable, but did not, and instead held it to be an easement. Id. Consequently, contrary to suggestions by the majority, Zahner and Norton are not distinguishable on these grounds.
Further, the majority’s contention that Norton and Zahner can only provide “limited guidance” in the determination of this case because they never considered the distinction between an easement or a fee simple determinable, due to the fact that the court did not need to make such a distinction previous to enactment of the MTA, is erroneous and somewhat circular in reasoning. In determining whether an easement or fee simple determinable is created we look to the language of the deed to discern the intent of the parties, not subsequent legislation that could not have played a role in the intention of the granting party. Our case law consistently focuses on the intention of the parties as the predominant deciding factor in determining the type of interest conveyed by an instrument, and not subsequent legislation enacted decades after a deed is drafted. See, e.g., Cement, Sand & Gravel Co. v. Agric. Ins. Co., N.Y., 225 Minn. 211, 216, 30 N.W.2d 341, 345 (1947); Norton, 129 Minn, at 130, 151 N.W. at 908; Witt v. St. Paul & N. Pacific Ry., 38 Minn. 122, 127, 35 N.W. 862, 864-65 (1888). In other words, the fact that there was no MTA when NoHon was decided is immaterial as to whether the conveyance created an easement or a fee simple determinable. Rather, the enactment of the MTA is significant as to what happens after an easement or fee simple determinable is created. It is not significant nor helpful in determining whether the parties conveyed an easement or fee interest in the first instance.
Further support for my conclusion that the parties intended to convey an easement can be found in a separate provision of the 1898 deed allowing for the construction of snow fences. The deed authorizes the railroad company to erect snow fences on both sides of the conveyed property, or within 150 feet of the railway’s center line. The specific language used stated:
And with the right to said Company, its successors and assigns to protect cuts which may be made on said lands, by erecting on both sides of, or within one hundred and fifty feet from the said center line, Portable snow Fences.
If the conveyance now in dispute had been a fee simple determinable, as suggested by the Department of Natural Resources (hereinafter “DNR”) and the majority, the grantees would have had title to the property and would not need permission, as given in this clause, to erect snow fences within one hundred fifty feet of the center line of the railway. More clearly stated, the 1898 deed first conveys a 100-foot wide piece of property. If this conveyance had been intended to be a fee simple determinable, the deed would not have had to also provide for an easement *431to build snow fences within that 100-foot corridor and extending further out to the sides. Instead, if the conveyance were a fee simple determinable, the deed would have only had to provide an easement of “X feet” beyond the borders of the 100-foot corridor. Consequently, the fact that an additional use of the land is allowed within the portion of the land already conveyed — -for snow fences instead of mere operation of a railway — suggests that the grantors intended to convey an easement in the first conveyance rather than a fee simple determinable. The snow fences are an additional easement, or other possible use, of the land conveyed.
The majority ignores this point and uses reasoning that is internally inconsistent. The majority first concludes that the deed creates a 100-foot fee simple determinable and states that this conclusion is supported by the fact that the drafters of the deed knew how to create an easement because of the language it used to create the snow fence easement. It then glosses over this fact, noting simply that the snow fence easement language gives the railroad a 150-foot easement-over property the majority has just said was given in fee to the railroad.2
Finally, in dismissing the importance of Norton and Zahner, two cases involving the issue of whether an easement to a railroad was conveyed, the majority relies heavily on Consol. Sch. Dist. No. 102 v. Walter, 243 Minn. 159, 66 N.W.2d 881 (1954), and an Iowa Supreme Court case, Lowers v. United States, 663 N.W.2d 408 (Iowa 2003). Walter involved the conveyance of a trust of real property by Ebenezer Ayres and his wife to Common School District No. 29, whose ownership preceded that of Consolidated School District No. 102. 243 Minn. at 160, 66 N.W.2d at 882-83. The deed conveyed the real property to the school district in trust “for the use, intent and purpose of a site for” a schoolhouse. Id., 66 N.W.2d at 882. The deed further specified that if the schoolhouse ceased to be used for the citizens of the school district as such, the trust “shall cease and determine and the said land shall revert to [the Ayres].” Id. (emphasis added). Focusing on the words “determine” and “revert,” we held that although not technically precise, the conveyance of interest “more closely resembles that used in a conveyance of a determinable fee.” Id. at 163, 66 N.W.2d at 884. In addition to the fact that Walter involved the conveyance of real estate in trust, the deed contained no similar language to the 1898 deed at issue in the instant case. For example, the Walter deed had no “grant, bargain, s[ale][nor] conveyance]” of “land” language, no mention of a “right of way,” no separate habendum clause, no use of the phrase “so long as,” and the deed used the phrase “shall revert” in its limiting language — a strong indication of a fee simple determinable. See id. at 160, 66 N.W.2d at 882.
We also stated in Walter that in the Norton and Zahner cases “the court properly gave effect to the unmistakable intent of the parties” and that “[b]eeause of the *432particular factual situations in those cases, we do not feel they have application here.” Id. at 162, 66 N.W.2d at 883. While the majority relies heavily on Walter and implies that Walter is similar in context to this case, the dissimilarity of the Walter facts, the distinctions in the deed language, and the court’s own statements do little to shore up the majority’s reasoning.
Lowers is of equally nominal value to the issues before us. While it is true that the Iowa Supreme Court held that a deed granting a narrow tract of land to a railroad company conveyed a defeasible fee rather than an easement, the court based its reasoning on the absence of particular language that can be found in the 1898 deed. See 663 N.W.2d at 410-11. Specifically, the court held that the conveyance in that ease was a fee simple determinable because “a line of cases * * * [holding] that a conveyance for right of way is presumed to grant only an easement” needed “some reference to right-of-way in the language defining the interest being conveyed” to prevail, and the conveyance at issue did not include reference to a right of way.3 Id. at 411. This was obviously the “lynch pin” for the Iowa Supreme Court, because in concluding that the deed did not convey an easement, the court stated, “No mention of a right of way, either in terms or by words of necessarily equivalent meaning, is to be found in any of the deeds [at issue].” Id. (quoting Des Moines City Ry. v. City of Des Moines, 183 Iowa 1261, 159 N.W. 450, 452 (1916)). Conse-
quently, Lowers is inapposite and irrelevant to this case, where the 1898 deed before us clearly conveyed “strips of land [that] shall be used for Right of Way.” (Emphasis added).
Moreover, in addition to the absence of “right of way” language, the Iowa Supreme Court noted that the habendum clause of the deed at issue did not “state any limitation on the interest conveyed. It provides that the railroad company shall ‘Have and Hold the same...forever.’” Id. This is a significant distinction from the 1898 deed in this case, which lacks the word “forever” and instead states that the conveyance shall “cease and terminate if the Railway is removed from the said strips.” Given the clear import of the Lowers decision, it is troubling that the majority cites to Lowers and lifts language out of it to support its position. The Iowa Supreme Court’s reasoning and the deed itself clearly undermine the conclusions reached by the majority.
Finally, the other cases cited by the majority for the proposition that a right of way deed conveyed fee title are distinguishable from this case in one obvious and important way. Each of the cases dealt with deeds that did not contain any limiting language — they were merely grants to railroad companies with no language similar to that in the habendum clause of the 1898 deed — and most of the courts noted that this was an important factor in reaching their decisions.4 See, *433e.g., King County v. Rasmussen, 299 F.3d 1077, 1086 (9th Cir.2002); Grill v. W. Virginia R.R. Maintenance Auth., 188 W.Va. 284, 423 S.E.2d 893, 894-95 (1992); Maberry v. Gueths, 238 Mont. 304, 777 P.2d 1285, 1288 (1989). Therefore, those cases are of little value to us when interpreting deed language which clearly limited the conveyance by stating that it was to “continue in force so long as the said strips of land shall be used for Right of Way, and for Railway purposes; but to cease and terminate if the Railway is removed from the said strips.”
Accordingly, given the intent of the parties as recorded in the deed’s language, our case law, and the distinctions that can be drawn between the facts before us and those set forth in the cases relied on by the majority, I would hold that the limiting language of the 1898 deed conveyed an easement. Like the majority, I too am supportive of the trail system developed in our state. Nonetheless, I strongly believe that such public policy concerns must at all times be anchored in the law as it exists. For that reason, the majority’s over-reliance on one law review article to support its public policy reasoning is troubling, particularly when taken in combination with the nonexistent and/or meaningless distinctions it makes when comparing similar deed language and the decided case law. Our responsibility is to decide the issues at hand in the context of the law as it is. To hold otherwise is to overturn previous case law, and the majority admits no such alteration in the law.
Because I would hold that the 1898 deed conveyed an easement, the issue of whether the easement has been abandoned would also have to be addressed, because if it has been abandoned, respondents would have title to the property at issue. Abandonment may occur when “the owner of the dominant estate has made no use of [an easement] and his [or her] conduct is such as to evidence intention to abandon.” United Parking Stations, Inc. v. Calvary Temple, 257 Minn. 273, 278, 101 N.W.2d 208, 212 (1960). Mere failure to use an easement does not necessarily extinguish it. Simms v. Fagan, 216 Minn. 283, 291, 12 N.W.2d 783, 787 (1943). A claim of abandonment can be upheld only where nonuse is accompanied by affirmative and unequivocal acts indicative of an intent to abandon and is inconsistent with the continued existence of the easement. Town*434ship of Sterling v. Griffin, 309 Minn. 230, 236, 244 N.W.2d 129, 133 (1976). The easement holder’s intention to abandon “need not appear by express declaration, but may be shown by acts and conduct clearly inconsistent with an intention to continue the use of the property for the purposes for which it was acquired.” Norton, 129 Minn, at 132, 151 N.W. at 909.
Here, the easement was conveyed for the purpose of operating a railroad right of way. The removal of the railway from the corridor in 1986 or 1987 was clearly inconsistent with an intention to continue using the property for the operation of a railroad right of way. Because Burlington Northern Railroad Company’s (hereinafter “BNRC”) interest, as set forth in the ha-bendum clause, terminates “if the Railway is removed from the said strips,” the removal of the railway from the corridor in 1986 or 1987 would constitute abandonment of the easement.
In this respect, this case again resembles Norton. In Norton, where the language of the deed was strikingly similar to the 1898 deed, and the railway had been removed from the corridor, this court held that:
In the case at bar the right of way was granted to the transfer company for and so long as it continued to occupy and use the same for railroad purposes. The grantee was a public service corporation, charged with certain duties and obligations in supplying facilities to other like corporations. By the abandonment of the road, by taking up and removing the track from the line in question, the Northern Pacific Co. relieved itself from the discharge of those duties and obligations.
129 Minn, at 132, 151 N.W. at 909. Applying the same reasoning set forth in Norton, I would conclude that the BNRC abandoned the easement in 1986 or 1987 and did not have any interest to transfer to the DNR in 1991.
In summary, I would hold that the 1898 deed conveyed an easement to the BNRC, which was abandoned when “the Railway [was] removed from the said strips.” Because the railway was removed in 1986 or 1987, I would hold that the easement was abandoned.
. Subdivision 6 of the MTA, which provides exceptions to the general rule that a party must file notice of its interest in the possession of real estate — and specifically excludes railroads from the exception' — refers to "reservations or exceptions of land for right-of-way or other railroad purposes contained in deeds of conveyance made by a railroad company or by trustees or receivers thereof.” The majority, in a footnote, acknowledges that this subdivision does not help this court "de-terminen the parties' intent as to the nature of the 1898 Walker/Joyce deed,” but then goes on to state that it rebuts the suggestion of a "clearly established presumption” that a grant to a railroad company that has a limitation based on use, and uses the phrase "right of way,” conveys an easement, because the subdivision would not be necessary if such a presumption existed. No such presumption has been articulated nor exists in Minnesota law. The court of appeals stated below that when interpreting a deed a court must look to the intent of the parties and construe all provisions of the instrument together, which affirms the notion that no such presumption exists. State v. Hess, 665 N.W.2d 560, 563 (Minn.App.2003). More importantly, however, the MTA only supports the majority's assertion insofar as the majority argues that there is no presumption that any conveyance to railroad is an easement. The MTA does not support the majority’s assertion that the MTA presumes the possibility of right of way conveyances being more than easements.
. The majority also suggests that the release of dower rights by the grantors, which is not legible in the deed, indicates the grantors' intent to convey a title in fee. However, while the majority cites to other jurisdictions, a search of Minnesota law reveals we have never held that a release of dower rights is an indication of a grantor's intent to convey a fee interest rather than an easement. Further, the Arkansas case cited by the majority, stating that the presence of a release of dower rights in a deed may suggest the conveyance of a fee interest, actually holds that the conveyances at issue were easements, despite the release of dower rights. See Brewer & Taylor Co. v. Wall, 299 Ark. 18, 769 S.W.2d 753, 756 (1989).
. While the title of the document in Lowers admittedly was “Rt. of Way Deed” the Iowa Supreme Court made a point of noting that the caption of a legal document does not effect or limit the interest in the body of the document. 663 N.W.2d at 411 (citing Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 300 (Iowa 1994) (construing an instrument titled "lease” as a mere license)).
. In King County v. Rasmussen, the 9th Circuit noted:
In virtually all cases where Washington courts have found only an easement, the granting or the habendum clauses contained such language [limiting the use of the land to a specific purpose].” See Swan v. O'Leaty, 37 Wash.2d 533, 225 P.2d 199 (1950) (granting premises "for the purpose of a Railroad right-of-way”); Morsbach v. Thurston County, 152 Wash. 562, 278 P. *433686, 687 (1929) (conveying a “right of way for the construction of said company’s railroad”); Pacific Iron Worlcs v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 111 P. 578 (1910) (holding that deed providing “to have and to hold the said premises ... for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors” granted easement); Reichenbach v. Washington Short Line Ry„ 10 Wash. 357, 38 P. 1126 (1894) (construing deed which provided "so long as the same shall be used for the operation of a railroad” as an easement); King County v. Squire Inv. Co., 59 Wash.App. 888, 801 P.2d 1022 (1990) (granting premises to railroad "so long as said land is used as a right-of-way by said railway Company, Expressly reserving to said grantors their heirs and assigns all their riparian rights ...”). 299 F.3d at 1086.
In Brown v. State, 130 Wash.2d 430, 924 P.2d 908, 912 (1996), the Washington Supreme Court stated, when discussing a previous case, “Recognizing a railroad can hold rights of way in fee simple or as easements, we held the deed granted an easement based on the specifically declared purpose that the grant was a right of way for railroad purposes, and there was no persuasive evidence of intent to the contrary.” (Citations omitted).
Consequently, under the majority’s reasoning Minnesota would be at odds with the laws of other states, which hold that specific limiting language in a right of way deed constitutes the conveyance of a mere easement.