Tri-County Metropolitan Transportation District v. Portland General Electric Co.

985 P.2d 222, 161 Or. App. 388, 1999 Ore. App. LEXIS 1259
CourtCourt of Appeals of Oregon
DecidedJuly 7, 1999
DocketC96-0474CV; CA A98567
StatusPublished
Cited by1 cases

This text of 985 P.2d 222 (Tri-County Metropolitan Transportation District v. Portland General Electric Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tri-County Metropolitan Transportation District v. Portland General Electric Co., 985 P.2d 222, 161 Or. App. 388, 1999 Ore. App. LEXIS 1259 (Or. Ct. App. 1999).

Opinion

LANDAU, P. J.

Our task in this case is to determine who owned a narrow strip of land that the Tri-County Metropolitan Transportation District (Tri-Met) condemned to make way for its Westside Light Rail Project. To the owner go the condemnation proceeds. Ownership is disputed on the basis of language in a 1960 deed granting title to a farm on which the strip is located “excepting” the narrow strip of land. Appellant, the successor in interest to the grantor, contends that, the narrow strip having been excepted from the grant, it was retained by the grantor and therefore belongs to his successor in interest. Respondent, the successor in interest to the grantee, contends that, because the excepting language was ineffective, the narrow strip was not retained by the grantor and was instead granted with the rest of the farm to the grantee and its successors in interest. We conclude that the language in the 1960 deed “excepting” the narrow strip of land means what it says and that, in consequence, the successor in interest to the grantor is entitled to the condemnation proceeds.

The relevant facts are not in dispute. Rachel Hawthorn owned a farm located in Washington County. In 1908, she granted to the Oregon Electric Railway (OER) a 60-foot-wide easement over the farm, to permit OER to run freight and a commuter rail service between Portland and Washington County. The agreement granting OER the easement also permitted OER to enter and leave the premises and required OER to construct a depot, two open crossings with cattle guards, and other facilities on the Hawthorn property. Those facilities were to be confined “as far as possible” to the easement corridor, but the easement agreement left open the possibility that construction could spill over onto land beyond the easement itself.

OER operated a regular schedule of passenger and freight trains beginning in 1908. It continued regular operations until 1933, when it discontinued its passenger service altogether. OER continued limited freight service until the 1970s.

[392]*392Meanwhile, in 1933, Harold Ray purchased the Hawthorn farm and, over the years, added several other parcels of land to it. He also granted various easements over the property, including an easement to Portland General Electric (PGE) in 1942 and an easement to OER in 1951, which allowed an additional 15 feet on either side of the 1908 right-of-way to lay gravel and to grade for support of the earlier right-of-way.

In 1960, Ray sold his property to the Hawthorn Farm Company and several individual investors. The warranty deed conveyed the property, described by metes and bounds, subject to the following clause:

“EXCEPTING, however, from the above described area, that portion of the Oregon Electric Railroad right-of-way lying within the boundaries thereof; containing a net area of 411.544 acres, more or less, SUBJECT to that certain easement granted to the Oregon Electric Railway Company [granted in 1951].”

The deed also contained a covenant of title declaring that Ray was “lawfully seized in fee simple of the above granted premises free from all encumbrances except the following * * At that point, the deed listed, among other things, the 1908 easement to OER, the 1941 easement to PGE, and the 1951 easement to OER.

Sometime after 1960, the individual purchasers sold their interest in the property to Hawthorn Farm Company. In 1978, Hawthorn Farm Company conveyed its interest in the property to the Quadrant Corporation (Quadrant).

In 1996, Tri-Met initiated this condemnation action to acquire, among other things, the portion of the old Hawthorn Farm that had been granted to OER. Tri-Met named as defendants Quadrant, the heirs of Harold Ray (who had since died),1 and PGE. The trial court determined that PGE had abandoned its interest in the 1941 easement and was not entitled to any condemnation proceeds. PGE did not appeal that determination. Quadrant and the estate then both moved for summary judgment on the issue of their competing [393]*393ownership claims. The trial court determined, that, notwithstanding the excepting clause of the 1960 warranty deed, Harold Ray never intended to retain title to the narrow strip on which OER was permitted to operate. The court concluded that Quadrant owns the property and is entitled to the condemnation award from Tri-Met and entered summary judgment accordingly.

The estate appeals, arguing that the trial court erred in failing to give effect to the terms of the 1960 warranty deed, which excepted from the grant of property to Quadrant’s predecessors in interest the narrow strip of land on which OER had been granted a right-of-way. Quadrant contends that, under State ex rel Dept. of Trans, v. Tolke, 36 Or App 751, 586 P2d 791 (1978), rev den 286 Or 149 (1979), there is a “constructional preference” against such excepting clauses.

In Tipperman v. Tsiatsos, 327 Or 539, 964 P2d 1015 (1998), the Supreme Court explained the legal principles that govern the construction of instruments creating an interest in land, in that case, an easement:

“First, in such cases, ‘[i]t is the duty of the court to declare the meaning of what is written in the instrument.’ Minto v. Salem Water Etc. Co., 120 Or 202, 210, 250 P 722 (1926). Further, the court will look beyond the wording of the instrument ‘only where there is an uncertainty or ambiguity.’ Fendall v. Miller, 99 Or 610, 619, 196 P 381 (1921). If the wording at issue is uncertain or ambiguous, then the court must determine the intent of the original parties by examining the relevant surrounding circumstances.”

Id. at 544-45. The court further explained that, only as a “last resort,” when ambiguity persists — after an examination of the language and the surrounding circumstances — is it appropriate to rely on a rule of construction. Id. at 545. In examining the language of the instrument creating an interest in land, we give words their ordinary meaning, unless the context otherwise suggests that a different meaning was intended. Id. at 548.

With those principles in mind, we turn to the 1960 warranty deed that is the subject of the parties’ dispute. That deed granted to Quadrant’s predecessors in interest the [394]*394Hawthorn Farm, “EXCEPTING * * * that portion of the Oregon Electric Railroad right-of-way” that was conveyed in 1908. Excepting clauses are common in conveyancing instruments and generally have the effect of “tak[ing] something out of the thing granted that would otherwise pass by the deed.” Rall et ux. v. Purcell, et ux., 131 Or 19, 21, 281 P 832 (1929). The excepting clause in the 1960 warranty deed therefore strongly suggests that Ray, the grantor, intended to grant title to everything except the land on which OER exercised its right-of-way.

The balance of the excepting clause confirms that conclusion. It stated that the effect of the excepting clause was to convey a “net area” of approximately 411 acres. The word “net” generally refers to a quantity arrived at after deductions. See Webster’s Third New Int’l Dictionary, 1519 (unabridged ed 1993) (defining “net” as “free from all * * * deductions”). It seems fairly clear that to produce a “net area” granted to Quadrant’s predecessors required the deduction of some acreage in the first place.

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Cite This Page — Counsel Stack

Bluebook (online)
985 P.2d 222, 161 Or. App. 388, 1999 Ore. App. LEXIS 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-county-metropolitan-transportation-district-v-portland-general-orctapp-1999.