733 A.2d 1055 (1999) 355 Md. 110

CHEVY CHASE LAND COMPANY et al.
v.
UNITED STATES et al.

Misc. No. 24, Sept. Term, 1998.

Court of Appeals of Maryland.

July 29, 1999.

*1058 Whayne S. Quin (Paul J. Kiernan, Wilkes, Artis, Hedrick & Lane, Chtd., for Columbia Country Club, all on brief), Washington, DC, for appellants.

Sean H. Donahue, Lois M. Schiffer, Asst. Atty. Gen.; Andrew M. Eschen, all on brief, Washington, DC, for Environment and Natural Resources Div., Dept. of Justice.

Henri F. Rush, Evelyn G. Kitay, Office of the General Counsel, all on brief, Washington, DC, for Surface Transp. Bd.

Diane R. Schwartz-Jones, Associate County Atty. (Charles W. Thompson, Jr., County Atty., Marc P. Hansen, Chief, Div. of General Counsel, all on brief), Montgomery County, for defendant-appellee Montgomery County.

Andrea C. Ferster, Cornish F. Hitchcock, Richard B. Nettler (Robins Kaplan Miller & Ciresi, LLP), Washington, DC, amicus curiae for Rails-to-Trails Conservancy.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ. *1056

*1057 CHASANOW, Judge.

This case comes to us by a certified order pursuant to Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article, §§ 12-603 to 12-609 from the United States Court of Appeals for the Federal Circuit. That court seeks our resolution of the parties' state law property disputes so that it may determine whether an uncompensated taking of private property has occurred in violation of the Fifth Amendment of the United States Constitution.^[1] The questions pertain to a right-of-way in Montgomery County called the "Georgetown Branch" that was granted to a railroad in 1911 and that has been converted for use as a hiker/biker trail under the federal "Rails-to-Trails" Act (the Act).

Specifically, the case requires that we construe a 1911 deed from appellant Chevy Chase Land Company of Montgomery County (CCLC or the land company) to the Metropolitan Southern Railroad Company (MSRC or the railroad),^[2] which is a predecessor in interest to the right-of-way now owned by appellee Montgomery County (the County). Additional parties to this appeal include appellant Columbia Country Club (Country Club), which claims an interest in the right-of-way for which it should be compensated, and appellee the United States, which along with the County was named as a defendant in this takings *1059 claim. The certified questions are as follows:

1. Under Maryland law, did the 1911 deed convey an interest in fee simple absolute or an easement?

2. If the deed conveyed an easement, is the easement subject to any limitations as a matter of law?

3. If the deed conveyed an easement, has the easement been abandoned as a matter of law since its conveyance and, if so, when?

We examine each of the certified questions, in seriatim.

Addressing the first question in Part II, we conclude that the 1911 deed granting a "right-of-way" to the railroad conveyed an easement. The use of the "right-of-way" language provides a strong indication that the parties intended to convey an easement as opposed to an estate in fee simple absolute. We find nothing in the deed to indicate that anything more than a right of passage was intended, particularly in light of the deed's separate grant "in fee simple" of other land upon which a passenger station was to be located. Our conclusion is confirmed by the circumstances of the conveyance, including the 20-year existence of the railway and the nominal consideration paid by the railroad for the right-of-way. Moreover, the conveyance of the right-of-way in fee simple would not have furthered any purpose of the railway not served by its conveyance as an easement and could adversely affect the public's interest in the best use of the land. See Part II.B., infra.

Regarding the second certified question, we conclude in Part III that use of the right-of-way as a recreational trail falls within the scope of the easement. The language of the deed includes no express limitations on the use of the right-of-way; rather, it indicates through its use of terms such as "free" and "perpetual" that the parties contemplated general use of the land as a way of passage through Montgomery County. In light of our decisions holding that easements for public highways are subject to reasonable changes in mode of transportation and the railroad's status as a highly regulated public service corporation, recreational trail use of a general use right-of-way is within the legally anticipated scope of the 1911 deed. Finally, the use of the right-of-way as a trail poses no unreasonable burden on the underlying fee simple estate, as it is self-evident that bikers and walkers inflict less of a burden on a right-of-way than a freight railroad.

In Part IV we explain why, as a matter of law, the railroad did not abandon its easement prior to assigning it to Montgomery County in 1988. To the extent that the appellants' arguments regarding abandonment hinge on their contention that the scope of the easement is limited to railroad purposes, our holding in Part III also disposes of this issue. Even if appellants' abandonment arguments are not contingent upon a more limited scope, there is insufficient evidence for appellants to meet their burden of proving abandonment. When determining whether there is an abandonment, the fact that the easement is regulated by federal railroad law is a circumstance that may be relevant to the intent to abandon. The railroad's actions in conformance with federal law cannot supply the decisive and unequivocal act necessary to prove that it abandoned its state law property interest. This is particularly the case when the railroad's actions were entirely consistent with an intent to sell the right-of-way and when a finding otherwise would mean that the railroad intended to violate federal law, exposing itself to criminal and civil liability, when no evidence would support the finding of such an intent. Finally, appellants presented no other evidence that would be sufficient to support a finding of abandonment.

I. BACKGROUND

A. Factual Background

The stipulated facts show the following. The property alleged to have been taken *1060 and for which the appellants seek compensation is a strip of land approximately one mile long and 100-feet wide, spanning some 12 acres in Montgomery County, Maryland, that lie on either side and across Connecticut Avenue in Chevy Chase. The mile-long stretch is a segment of an approximately 6.4 mile former railroad line in Montgomery County known as the Georgetown Branch, which runs from Silver Spring southwesterly into the District of Columbia.

The land company was founded in 1890 in part to develop the residential area now known as Chevy Chase and it then owned all the land relevant to this case. In 1891, the land company and the railroad entered into an agreement whereby the land company would convey the "right-of-way" over the mile-long stretch of land and a second parcel "for the purposes of a passenger and freight depot." As part of the agreement, the railroad agreed to erect a passenger station on the second parcel to cost not less than $4,000 (or it would contribute $4,000 toward the land company's construction of the station), to build the tracks to Connecticut Avenue on or before August 31, 1891, and to charge the land company half rates on freight delivered over the line. The railroad missed the August 31, 1891, deadline, but built that portion of the line in 1892, while the rest of the line was not completed until 1910; it never built the passenger and freight station nor did it pay the $4,000 toward the land company's construction of the station. In 1909, the Country Club bought more than 125 acres of land from the land company primarily for use as a golf course. The deed conveyed the property in two separate parcels described by metes and bounds with one parcel on each side of the railroad's right-of-way.

In 1911, after the railroad line had been constructed and in operation for 19 years, the land company executed a deed conveying to the railroad, "its successors and assigns, a free and perpetual right of way" over the land referred to in the 1891 agreement. The deed also conveyed, in "fee simple," the parcel of land on which the depot was to have been built. The railroad paid $4,000 for the conveyance, and the deed stated that the 1891 agreement was "mutually abrogated, canceled and set aside, and the [railroad] is hereby released and discharged from the obligation... of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars." See Part II.C.1.

The railroad used the right-of-way for shipping freight continuously from 1892 until 1985, when damage to a bridge on the right-of-way prevented its use. Between 1969 and 1985, however, traffic over the line had decreased by over 90%. In 1983, in conformance with federal law, the railroad posted a notice on the Georgetown Branch that it would be the subject of an abandonment application before the Interstate Commerce Commission (ICC). A series of internal corporate decisions were made by the railroad in 1984 and 1985 to abandon service over the Georgetown Branch. On April 9, 1986, the railroad applied to the ICC for authorization to abandon rail service on the line, as required by federal regulation. See 49 U.S.C. § 10903 (1988);^[3] 49 C.F.R. §§ 1152.20-22; and Part IV.A.2. The ICC issued a tentative decision on February 25, 1988, permitting abandonment on condition that the railroad continue to maintain the right-of-way in order to facilitate the possible acquisition of the right-of-way for public use pursuant to the Rails-to-Trails Act, which is codified at 16 U.S.C. § 1247(d)(1988)(see footnote 3).

After the ICC's tentative decision, Montgomery County began discussions with the railroad about acquiring the right-of-way for a light-rail system as well as a hiker/biker path pursuant to the Rails-to-Trails *1061 Act. On December 12, 1988, the ICC approved the purchase and transfer of use of the right-of-way to Montgomery County. Four days later the railroad conveyed the entire Georgetown Branch to Montgomery County by quitclaim deed for the County's payment of $10 million. As described in more detail in Part IV.A.2., as a result of the ICC's actions pursuant to the Act, regulatory abandonment of the railroad right-of-way was delayed indefinitely.

We will provide more facts as we examine each of the certified questions. Additional facts are also available in the opinion of the federal trial court, Chevy Chase Land Co. of Montgomery v. U.S., 37 Fed.Cl. 545 (1997).

B. Summary of Arguments and Case History

The plaintiffs/appellants assert that the 1911 deed conveyed an easement. They further argue that the proposed use of the easement as a hiker/biker trail is beyond its scope, which they contend is limited to railroad uses. Alternatively, they contend that the easement was abandoned prior to the railroad's conveyance of the quitclaim deed to the County. Accordingly, appellants conclude that a reversion of the easement occurred and that they own the right-of-way unencumbered by any other interest. Thus, they are seeking compensation in federal court for the "taking" of their interest in the right-of-way by Montgomery County under the Rails-to-Trails Act.

Defendants/appellees Montgomery County and the United States, on the other hand, argue that the 1911 deed conveyed to the railroad an interest in the right-of-way in fee simple absolute and therefore the appellants have had no interest in the property since 1911. Alternatively, should the deed be found to have conveyed an easement, they contend that the use of the right-of-way as a hiker/biker trail pursuant to federal law is within the scope of the easement and that the railroad never abandoned the easement. Accordingly, they conclude that no taking occurred. We are concerned only with the state law property issues and not with the takings claim itself.

The United States Court of Federal Claims (CFC), where appellants filed their takings claim, found in favor of Montgomery County and the United States. Chevy Chase Land Co. of Montgomery, supra. The CFC concluded that the 1911 deed conveyed a fee simple absolute and granted summary judgment in favor of appellees. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 565-75. Although that conclusion disposed of the case, the CFC went on, in dicta, to conclude that if it was an easement that was conveyed, the easement was abandoned by the railroad prior to its conveyance to the County. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 575-80. Also in dicta, the CFC stated that the language of the 1911 deed did not limit the scope of the easement to railroad purposes (thereby implying that the use as a hiker/biker trail would not cause a reversion) but that if the deed were limited to railroad purposes, the proposed use would be beyond the scope of the easement, thereby causing a reversion giving rise to a takings claim. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 585-87. The land company and the Country Club appealed to the United States Court of Appeals for the Federal Circuit, which certified the state law property questions to this court.

II. THE RAILROAD'S PROPERTY INTEREST

The first question asks whether the 1911 deed conveyed an interest in fee simple absolute or an easement. The question requires that we construe the 1911 deed between the land company and the railroad. We begin with a summary of the principles involved in construing a deed. We then consider how the courts of this State and other states have construed the phrase "right-of-way." We then apply *1062 those principles to the deed conveyed by the land company to the railroad.

A. Basic Principles of Deed Interpretation

In construing a deed, we apply the principles of contract interpretation. Buckler v. Davis Sand, Etc., Corp., 221 Md. 532, 537, 158 A.2d 319, 322 (1960). These principles require consideration of "`the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution,'" Calomiris v. Woods, 353 Md. 425, 436, 727 A.2d 358, 363 (1999)(quoting Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 388, 488 A.2d 486, 488 (1985)). At least initially, the construction of a deed is a legal question for the court, and on appeal, it is subject to de novo review. Calomiris, 353 Md. at 433-35, 727 A.2d at 362-63. "It is a cardinal rule in the construction of deeds that `the intention of the parties, to be ascertained from the whole contents of the instrument, must prevail unless it violates some principle of law.'" D.C. Transit Systems v. S.R.C., 259 Md. 675, 686, 270 A.2d 793, 798-99 (1970)(D.C. Transit I) (quoting Marden v. Leimbach, 115 Md. 206, 210, 80 A. 958, 959 (1911)). Thus, we must consider the deed as a whole, viewing its language in light of the facts and circumstances of the transaction at issue as well as the governing law at the time of conveyance.

B. Right-of-Way

In railroad parlance, "the term `right of way" has two meanings: in one sense it is `the strip of land upon which the track is laid'; in the other sense it is `the legal right to use such strip,' and in this sense it usually means the right of way easement." Ma. & Pa. RR. Co. v. Mer.-Safe, Etc., Co., 224 Md. 34, 36-37 n. 1, 166 A.2d 247, 248 n. 1 (1960)(quoting Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379 (1931)). See also Joy v. City of St. Louis, 138 U.S. 1, 44, 11 S.Ct. 243, 256, 34 L.Ed. 843, 857 (1891)("[T]he 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."). Cf. Philip A. Danielson, The Real Property Interest Created In a Railroad Upon Acquisition of Its "Right of Way," 27 ROCKY MTN. L.REV. 73, 74 (1954)(noting the two meanings and stating that "[i]n law [right of way] is synonymous with `easement'—a legal concept").

Nevertheless, it has generally been held by courts of this and other states that "deeds which in the granting clause convey a `right of way' are held to convey an easement only." Deed to Railroad Company as Conveying Fee or Easement, Annotation, 6 A.L.R.3d 973, § 3, at 977 (1966); The Real Property Interest Created In a Railroad Upon Acquisition of Its "Right of Way," 27 ROCKY MTN. L.REV. at 84 ("[I]f the conveyance is of a `right of way,' or of land `for a right of way,' the courts tend to find an easement ")(emphasis in original; footnote omitted). As explained in Professor Elliott's 1907 treatise on railroad law:

"`Right of way,' in its strict meaning, is `the right of passage over another man's ground;' and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee-simple of lands to be used for a railway or any other kind of way."

2 ELLIOTT ON RAILROADS § 1158, at 628 n. 77 (3d. ed.1907)(quoting Williams v. Western Union Railway Company, 50 Wis. 71, 5 N.W. 482, 484 (1880)). See also Richfield Oil Corp. v. Chesapeake & Curtis Bay Railroad Co., 179 Md. 560, 572, 20 A.2d 581, 587 (1941); D.C. Transit I, 259 Md. at 688, 270 A.2d at 799 (both quoting ELLIOTT ON RAILROADS).

*1063 Maryland courts have often construed deeds of "rights-of-way" to railroads as easements or have used the terms "easement" and "right-of-way" synonymously. See, e.g., D.C. Transit I, 259 Md. at 689, 270 A.2d at 800 ("The addition of the language for `a right of way' in the habendum clause ... makes clear the intent of the parties to grant an easement .... ")(emphasis in original); Richfield Oil Corp., 179 Md. at 572, 20 A.2d at 587-88 (quoting 2 ELLIOTT ON RAILROADS § 1158, at 627-28 (3d ed. 1907))("`Where the intention to convey a fee does not appear, as in case of the conveyance of a "right of way" for the railroad through certain lands, the company takes an easement only.'"); Greenwalt v. McCardell, 178 Md. 132, 136, 12 A.2d 522, 524 (1940)("Where a right of way is established by reservation, the land remains the property of the owner of the servient estate, and he is entitled to use it for any purpose that does not interfere with the easement.")(emphasis added); Miceli v. Foley, 83 Md.App. 541, 570, 575 A.2d 1249, 1264 (1990)("Absent an express intention to convey a fee, a grant of a right of way to a railroad is generally considered to be an easement."). Our cases are consistent with those of other jurisdictions.^[4]

The general rule that the terms "right-of-way" and "easement" are synonymous came about because the rule is consistent with the likely intent of the parties to a deed when the term "right-of-way" is used. As we observed in Green, Tr. v. Eldridge, 230 Md. 441, 448, 187 A.2d 674, 678 (1963): "The fact that the word `easement' was not used to designate the property interest passing is not of particular significance, since use of the phrase `right of way' is generally understood to mean that only an easement is being granted." See also Pub. Serv. Commn. v. Gas Etc. Corp., 162 Md. 298, 312, 159 A. 758, 763 (1932)(quoting Bosley v. Susquehanna Canal, 3 Bland 63, 67 (1830))("`A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use....'").

Furthermore, policy considerations support interpreting the conveyance of a "right-of-way" to a railroad as an easement where the intent to convey an estate in fee is not clearly expressed. A great number of railroad corridors have been abandoned in recent years. See Preseault v. ICC, 494 U.S. 1, 5, 110 S.Ct. 914, 918, 108 L.Ed.2d 1, 10 (1990)(observing that the nation's railway *1064 system has lost about 130,000 miles of track since 1920 and noting that "experts predict that 3,000 miles will be abandoned every year through the end of this century")(footnote omitted). Whether a right-of-way is construed as an estate in fee simple or an easement has significant implications for the utility of the land upon abandonment. If the deed of a right-of-way is construed as an estate in fee simple, the railroad will retain the right-of-way even after it is no longer used for any transit purposes—effectively severing otherwise contiguous pieces of property, and for no useful purpose. As the Indiana Supreme Court has explained:

"Public policy does not favor the conveyance of strips of land by simple titles to railroad companies for right-of-way purposes, either by deed or condemnation. This policy is based upon the fact that the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they are severed[ ] is obviously not necessary to the purpose for which such conveyances are made after abandonment of the intended uses as expressed in the conveyance, and that thereafter such severance generally operates adversely to the normal and best use of all the property involved."

Ross, Inc. v. Legler, 245 Ind. 655, 199 N.E.2d 346, 348 (1964). See also The Real Property Interest Created In a Railroad Upon Acquisition of Its "Right of Way," 27 ROCKY MTN. L.REV. at 74 (observing that construing a right of way as an easement "seems socially more desirable, since it helps clear titles and prevents long narrow strips of agricultural land from being separated from the adjoining farms, with attendant waste and inconvenience."). We have previously recognized that the construction of a right-of-way as a fee simple would not further any significant interest that is not served by construction as an easement. See D.C. Transit I, 259 Md. at 688, 270 A.2d at 800 (construing a deed to a railroad as an easement in part because it would not serve any useful purpose to convey "a strip of land 80 feet wide" as an estate in fee); Ma. & Pa. RR. Co., 224 Md. at 37, 166 A.2d at 249 (following the "general rule ... that a railroad company acquires only an easement in a right of way by prescription .... [because] the nature of the user by the railroad requires no more than an easement in the right of way"). See also Daugherty v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952)(holding that a deed conveying a strip of land for a right-of-way created an easement rather than a fee primarily because the parcel would be useful for little else because of its shape); Hartman v. J. & A. Development Co., 672 S.W.2d 364 (Mo.Ct.App.1984)(recognizing that long narrow strips of land serve little or no function other than for easements or rights-of-way).

This is not to say that a deed conveying a "right of way" to a railroad cannot convey an estate in fee simple. It is well settled that a deed to a railroad, even though it characterizes the grant as conveying a right-of-way, may convey an estate in fee simple. See Hodges v. Owings, 178 Md. 300, 303, 13 A.2d 338, 339 (1940)(observing that the railroad's charter authorized it to take an estate in fee). However, when a deed conveying a right-of-way fails to express a clear intent to convey a different interest in land, a presumption arises that an easement was intended. "The logical rule ... is that where the deed is ambiguous and the granting clause is not specific, references to the interest being conveyed as a right-of-way gives rise to a presumption that an easement was intended." Danaya C. Wright, Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana, 30 IND. L.REV. 723, 740 (1997). See also Miceli, 83 Md.App. at 571, 575 A.2d at 1265 ("As there is insufficient evidence to rebut the presumption that a condemning railroad takes an easement, we hold that the railroad did not acquire a fee simple absolute in the property at issue.")

*1065 C. Application to the 1911 Deed

1.

The deed in question was executed on March 22, 1911, and recorded on April 4, 1911. In pertinent part, the granting clause of the deed states:

"[T]he said party of the first part [the land company] for and in consideration of the sum of FOUR THOUSAND (4,000) DOLLARS, to it paid by the said party of the second part, does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as `Parcel A' and does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, in fee simple, the land and premises, hereinafter designated as `Parcel B`...." (Emphasis added).

The deed then provides a metes and bounds description of Parcel A, the "right-of-way," and Parcel B, the land granted in "fee simple." Parcel A is summarized as "being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company...." (Emphasis added). The granting clause pertaining to Parcel A is made subject to an "existing right of way for highway and other purposes over what is known as Connecticut Avenue Extended."

The deed's warranty clause states:

"AND the said party hereto of the first part hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite."

Finally, the deed provides that

"in consideration of the execution and delivery of this Deed, and of the payment of the consideration herein expressed, the ... agreement entered into on [April 21, 1891] ... is mutually abrogated, canceled and set aside, and [MSRC] is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by ... [CCLC] of a passenger station on the hereinbefore described parcel of land designated as Parcel "B"; and the said [MSRC], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC] from any obligation ... to erect or cause to be erected the passenger station aforesaid."

As the cases just reviewed demonstrate, and as appellees and the CFC acknowledge, we have consistently construed conveyances of rights-of-way to railroads as easements and not estates in fee simple. The use of the term "right of way," however, does not ipso facto create an easement; rather the language of the deed must be viewed as a whole in the context of the entire transaction. As explained next, we believe that the express language of the deed in light of the circumstances makes sufficiently clear the intention of the land company and the railroad to create an easement. See Desch v. Knox, 253 Md. 307, 310-11, 252 A.2d 815, 817 (1969)(holding deed conveyed "right-of-way" based on the language of the deed); Fedder v. Component Struct. Corp., 23 Md.App. 375, 380, 329 A.2d 56, 60 (1974)(holding that the "intention of the parties [to convey an easement was] crystal clear" when deed conveyed a "right-of-way" and "[w]hen the simple language of the contract is considered in the surrounding circumstances.") We first examine the language of the deed itself and only then turn to the circumstances of the conveyance.

2.

Initially, we note what is obvious about the deed. The granting clause does not state that a piece of land is being conveyed nor does it provide any indication that an *1066 estate in fee simple was intended to be conveyed. The language "free and perpetual" sheds no light on whether a nonpossessory or possessory interest is being conveyed, since an estate in fee or an easement may be "free and perpetual." See Md.Code (1974, 1996 Repl.Vol.), Real Property Art., § 4-105 ("[E]very grant or reservation of an easement passes or reserves an easement in perpetuity."). Rather, the granting clause of the deed directly conveys a "right of way." The appellees therefore have a high hurdle to overcome in order to demonstrate that the term right-of-way was used "in [the] unusual sense ... [of] an absolute purchase of the fee-simple of lands...." 2 ELLIOTT ON RAILROADS § 1158, at 628 n. 77 (3d ed.1907)(quoting Williams, 5 N.W. at 484).

That hurdle is elevated upon further examination and a contrasting of the deed's dual granting clauses. The two granting clauses each declare the land company's intent to "hereby grant and convey." First, the land company conveyed "a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as `Parcel A.'" Second, the land company conveyed to MSRC "in fee simple, the land and premises, hereinafter designated as `Parcel B.'" Appellees contend that because each clause contains the word "grant" the land company intended to pass an estate in fee simple even though the first clause grants a "right of way" while the second clause conveys the "land and premises" in "fee simple." The CFC concluded that the use of the term "fee simple" in reference to Parcel B merely referenced duration of the estate conveyed and not the estate itself. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 571. Relying in part on extrinsic evidence, the CFC concluded that the language "fee simple" in reference to Parcel B was synonymous with the term "perpetual" in reference to Parcel A and thus both granting clauses conveyed estates in fee. Id.

We believe that the CFC's and appellees' construction of the deed is overly strained. If the land company intended to convey estates in fee over both parcels, it would have been unnecessary to include two separate granting clauses. Moreover, given that two granting clauses were used, if they had intended to convey the same interest, we believe the author of the deed would have used the same language. Neither the CFC nor appellees explain why different language was used if the intent was to convey the same interest in both parcels. To hold that both Parcel A and Parcel B conveyed estates in fee would be to ignore what we believe is self-evident from the deed: that the parties intended to convey different interests, one for the "right of way" designated as Parcel A and the other for "the land and premises" in "fee simple" and designated as Parcel B. If the intent was to convey Parcel A as an estate in fee, no drafting hurdles would have prevented making such intent explicit. Cf. United States v. 1.44 Acres of Land, Etc., Montgomery County, Md., 304 F.Supp. 1063, 1071 (D.Md.1969)(applying Maryland law)("[A] legal draftsman ... would not use such [right-of-way] language to convey a fee title to a railroad.").

Appellees further attempt to bootstrap the description of Parcel A as a "parcel of land" into the granting clause to show that an estate in fee of the right-of-way was intended to be conveyed. As noted above, the description of Parcel A is found in a separate paragraph of the deed, which summarizes Parcel A as a "parcel of land... being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company."

We disagree as to the implications of the language "parcel of land" in the description of "Parcel A" in the deed. The language is used in the portion of the deed establishing the location of the right-of-way, not the interest granted. Language used in a descriptive clause is less important *1067 than the language of the granting clause in denoting what interest in land is conveyed by a deed. See Marden, 115 Md. at 209, 80 A. at 959 (observing that, when determining the interest conveyed by a deed, in the case of conflict the granting clause generally prevails over the habendum clause). Indeed, the granting clause for Parcel B explicitly stated that what was being conveyed was "the land and premises" while the disputed grant was of a "right of way ... over the land and premises." (Emphasis added). Furthermore, as discussed next, in previous cases we have construed language similar to the "parcel of land" language upon which appellees rely. In these cases the deed language was found not in a descriptive clause but in the granting clause itself, and we nevertheless found that the deed conveyed an easement in lieu of the reference to the interest as a "right-of-way."

In Green, the deed was entitled a "Right of Way Deed." 230 Md. at 447-48, 187 A.2d at 677. The granting clause conveyed in fee simple "`the free and uninterrupted use, liberty and privilege of, and passageway in and along a certain right of way....'" Despite the reference to the grant in "fee simple," we concluded based on the entire instrument and the circumstances of the transaction that the deed granted an easement only, "with the fee remaining in the original grantor, his heirs and assigns." Green, 230 Md. at 448, 187 A.2d at 677.

Another example is East Wash. Railway v. Brooke, 244 Md. 287, 223 A.2d 599 (1966). In that case, the granting clause of the deed conveyed a " strip of land for a right of way through said