BNSF RAILWAY COMPANY, a Delaware corporation, d/b/a BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Appellant (Defendant),
BOX CREEK MINERAL LIMITED PARTNERSHIP, a Wyoming limited partnership, Appellee (Plaintiff).
from the District Court of Converse County The Honorable John
C. Brooks, Judge
Representing Appellant: Lori A. McMullen and Clayton H.
Gregersen of Crowley Fleck PLLP, Sheridan, Wyoming. Argument
by Ms. McMullen.
Representing Appellee: Dan B. Riggs, Amanda K. Roberts, and
J. Kyle Hendrickson of Lonabaugh and Riggs, LLP, Sheridan,
Wyoming. Argument by Mr. Riggs and Mr. Hendrickson.
DAVIS, FOX, and KAUTZ, JJ., HILL, J. (Ret.), and RUMPKE, D.J.
RUMPKE, DISTRICT JUDGE.
Box Creek Mineral Limited Partnership (herein "Box
Creek") filed suit against BNSF Railway Company (herein
"BNSF") for declaratory judgment and to quiet title
on the mineral rights in lands conveyed by two deeds in
1913. The parties disputed whether the two deeds
passed a fee simple estate from Box Creek to BNSF, thereby
conveying the underlying mineral estate, or if the deeds
merely conveyed an easement in fee simple, whereby the
minerals would not pass to BNSF.
The district court found the deeds ambiguous and denied
summary judgment. Following a bench trial, the district court
found that "the parties intended an easementlike
conveyance rather than a fee simple interest."
Consequently, the district court quieted title to the mineral
estate in Box Creek. BNSF appealed. For the reasons set forth
below, we affirm the district court's decision.
We agree with Box Creek's statement of the dispositive
issues, which we restate as:
1. Did the right of way deeds convey the underlying mineral
2. Did the district court properly admit the testimony of
Marc Strahn as expert witness testimony?
HISTORY AND RELEVANT FACTS
Box Creek filed an action for declaratory judgment and
seeking to quiet title to the mineral rights underlying real
property in Converse County. Box Creek claimed the deeds did
not convey the minerals underlying the railroad. In response,
BNSF generally denied Box Creek's claims and argued that
the mineral estate passed to BNSF's predecessor in
Box Creek designated Marc Strahn as its expert witness. In
his report, Strahn described his methodology in determining
the intent of the parties when a deed is unclear. After
looking at the deed itself, Strahn examined the surrounding
title to see if those documents indicate the parties'
intent. Then, Strahn asked questions concerning the
circumstances surrounding the execution of the instrument
including whether there was mineral activity in the area at
the time of the conveyance. In this case, Strahn also
examined the historical practices surrounding property
conveyances used by persons in Wyoming.
Before trial, BNSF moved to exclude the expert report and
testimony. Citing this Court's familiar Bunting
standard, BNSF argued that Strahn's testimony not only
lacked a sufficiently reliable methodology, but also that the
testimony would not be helpful to the finder of fact. Box
Creek opposed the exclusion of its expert. In general, Box
Creek argued that Strahn's experience as a landman
researching mineral conveyances allowed him to "testify
as to his observations of the language utilized in the two
deeds and historical conveyancing standards." In
reaching his opinions regarding the parties' intent as to
the deeds at issue, Strahn reviewed the deeds and 27
documents affecting title to the minerals at issue. All 27
documents post-dated the conveyances by at least 37 years.
The district court held a hearing on BNSF's motion to
exclude Strahn's testimony. Following the hearing, the
district court denied BNSF's motion finding in
toto that "Mr. Strahn's report is sufficiently
reliable and he is properly qualified as an expert under
W.R.E. 702. Defendant is certainly free to explore Mr.
Strahn's qualifications in cross examination." After
denying cross motions for summary judgment, the district
court conducted a bench trial. BNSF properly preserved its
objection to Strahn's testimony by filing a pretrial
motion in limine and objecting to the testimony at
Following a bench trial, the district court found the deeds
constituted "an easement-like conveyance, rather than a
fee simple interest." Consequently, the district court
quieted title to the minerals in Box Creek. BNSF filed a
timely notice of appeal.
Generally, the evidence at trial was undisputed. In large
part, as explained below, the evidence consisted of testimony
as to what part (or parts) of the deeds the district court
should emphasize in determining the intent of the parties
from two ambiguous instruments.
This case involves two deeds drafted by BNSF. On July 10,
1913, Box Creek's predecessors in interest, the Douglas
Canal Company and John Morton and S.E. Morton, executed two
Right of Way Deeds in favor of Big Horn Railway Company,
BNSF's predecessor in interest. The Converse County Clerk
recorded the deeds on July 19, 1913 (Deeds 42338 and 42339).
The parties titled each deed as a "Right of Way
Deed." The granting clauses in each deed states that Box
Creek "does hereby grant, bargain, sell and convey"
an interest in the real property to BNSF. The grant is to
BNSF's "successors and assigns." Then, each
deed described the property conveyed.
Both deeds granted BNSF "[a] strip of land one hundred
and fifty (150) feet wide, it being seventy-five (75) feet
wide on each side of the center line of the railroad of said
railroad company as the same is now
located." These conveyances are described as going
"over and across" certain lands. Box Creek also
conveyed "a strip of land two hundred (200) feet wide,
it being one hundred (100) feet wide on each side of the
center line of the said railroad" in different sections.
Again, these conveyances are described as going "over
and across" certain lands. In Deed 42338, BNSF received
"a strip of land" described as containing a little
more than 41 acres "for station ground purposes."
Each conveyance required the railroad to provide crossings
and a means of irrigation. In Deed 42339, the
"conveyance is made with the understanding that the said
Railroad Company shall provide crossings across its
right of way and track, and means of irrigating the land on
either side of the right of way above described . .
. ." (Emphasis added.) In Deed 42338, "the
conveyance is made on condition that said Railroad Company
shall provide crossings across its right of way and track,
and means of irrigating the land on either side of
said right of way." (Emphasis added.)
Each deed's habendum clause grants BNSF the right
"TO HAVE AND TO HOLD the land above described unto the
said Railroad Company, its successors and assigns
forever." The same paragraph continues that:
[a]nd in addition to the right of way described
above, it hereby grants for itself, and its successors
and assigns, the right to said railroad company to erect and
maintain a snow fence, where the same may be deemed
necessary, for the term of four months, each and every year
after the date of this instrument, at any point within one
hundred feet on either or both sides of the center line of
said railroad, as now located on said above described land.