Recall and Right of Way
- Coalition for a New Spokane, et al. v. Vicky Dalton et al. (Per Curiam)
(Holding that an order from the Supreme Court, even without an opinion, is a decision.) - Kershaw Sunnyside Ranches v. Yakima Interurban Lines Assoc., et al (Bridge, J.)
(Finding that burial of fiber optic cable along a railroad was trespass because it was not incidental use and the railroad had only purchased an easement not a fee interest due to the language specifying “right-of-way”)
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The case here is an interesting one arising, yet again, from the recall of Spokane’s former mayor, Jim West. The suit was brought by a group of Spokane voters challenging the validity of signatures supporting the recall petition. The group alleges that signature collection began too early because signature collection may only begin on the day after the Supreme Court issues its decision on any challenges. The Coalition’s arguments are: (1) The court hadn’t issued a “decision” only an “order”, and (2) a Supreme Court decision isn’t final until the court has disposed of petitions for re-hearing.
Before tackling those interesting issues, the court spends some time on a challenged to the group’s standing to challenge the signatures. I wasn’t able to follow the specific challenge to standing from the analysis in the opinion, but the ending seems fairly bland: “This court has held that voters have sufficient interest to bring an action for mandamus in a case involving an election. See State ex rel. Harvey v. Mason, 45 Wash. 234, 237, 88 P. 126 (1907).”
The dance of “decision”, “order”, and “opinion” is the very hair-splitting that gives lawyers a bad name. I have to give credit to the petitioners here for running the argument especially as it would attack the recent actions of the same court. That’s moxie. Predictably, though, moxie gets a wry grin and quick exit.
The decision of the court here seems to be grounded very solidly on practical grounds. The state’s constitution requires that all decisions of the court be written and accompanied by full explanations. However, the Revised Code requires the court to dispose of all recall matters within 30 days of the district court’s decision. (Appeals courts must be done within 15 days of the district court creating a functional 15 days for the Supreme Court.) The court here could either issue their order on time with a hasty opinion, deliver it late with a solid opinion, or separate the two as they sensibly do here. There is no discussion about how long is an acceptable time between the order and the opinion.
The Coalition’s second argument, that it isn’t over until rehearing has been denied and a mandate terminating further review is entered, is dismissed on linguistic grounds.
When drafting, RCW 29A.56.150(2), the legislature did not use the term ‘mandate’ or ‘final decision.’ Instead it allowed the collection of signatures to begin on the day after the issuance of this court’s ‘decision.’
However, the grounds might as well been practical given the “emergency” nature of recalls.
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The facts of the case are simple. The Kershaw family entered into an agreement with a railroad in 1905. The Kershaw’s still have their farm, the railroad still has its tracks – so far so good. A few years ago, the railroad allowed a telecommunications firm to lay fiber optic cable along their tracks. The family is now suing the railroad in order to recover damages from what they consider a trespass and what the railroad considers a legitimate use of its prerogative.
The two questions before the court are: Did the railroad acquire the land itself or only an easement? If they only own an easement, is the cable an incidental use?
The majority opinion is against the railroad on both questions. They find that the repetitive use of the phrase “right-of-way” implies that the railroad only purchased the ability to run a railroad and nothing else. However, the opinion claims to follow the 1996 opinion in Brown v. State, 924 P.2d 908, but Charles Johnson who wrote that opinion is in the dissent here. Similarly, Madsen who concurred before dissents here and Sanders who dissented now concurs. Only Justice Alexander concurred in both opinions. (The other present Justices where not then on the court.) All I can say is that this area of the law continues to be murky.
Here is the Seven Factor Test they claim to use to evaluate if an agreement in the standard fee-simple transfer form actually grants only an easement:
- Does the agreement describe a strip of land and limit it to railway use?
- Does the agreement describe a strip of land without restrictions?
- Is it described as a right of way and not a strip at all?
- Is it granted only for railroad construction, maintainence, and use?
- Is there a reversion clause?
- Was the consideration substantial or nominal?
- What is in the habendum and other language?
Here is the test I think they use:
- Was the parcel described as a right-of-way or a strip?
- If it is right-of-way, is it in the granding/habendum areas or in the legal description/obligations areas?
- Is the purpose of the grant clearly specified?
- Is there a reversion clause?
- Are certain ownership rights specifically reserved?
- Was the consideration substantial or nominal?
- Was it completed before or after 1911?
- What is the size and shape of the tract?
- What did the parties intend?
In other words, I think the court is still flying by the seat of their robes here.
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