MOSK, J., Concurring and Dissenting. The question before us is whether a deed conveying “the right of way for the construction, maintenance and operation of a Steam Railroad, upon over and along [a] tract and parcel of land . . . over and through the lands of grantors” transferred an easement or a defeasible fee. The majority correctly conclude that the foregoing language shows a transfer of an easement to the grantee. But their ultimate conclusion that the deed conveyed fee title is erroneous. They reach that conclusion because they are unduly absorbed in certain other language in the deed and incorrectly conclude that it renders the deed ambiguous and hence subject to consideration of extrinsic evidence.
Facts
On October 31, 1888, W. Dunn caused a deed to be recorded in the Los Angeles County land records:
“This Indenture made this 24th day of October 1888, by and between The Redondo Land Company, a corporation, and Charles Silent, a resident of the County of Los Angeles, State of California, parties of the First part, and
“The Redondo Beach Railway Company, a Corporation, party of the Second part.
“Witnesseth: That said parties of the First part for and in consideration of the sum of One Dollar to them in hand paid by said party of the Second part, the receipt of which is hereby acknowledged do by these presents remise, release and quit-claim unto said party of the second part the right of way for the construction, maintenance and operation of a Steam Railroad, upon over and along the following tract and parcel of land, situated, lying and being [251]in the County of Los Angeles, State of California, and described as follows, to-wit, Being a strip of land of the uniform width of 100 feet, 50 feet thereof being on each side of and parallel to the center line of location of The Redondo Division of the California Central Railway, over and through the lands of grantors, situated in the N.W. Va of Sec. 19, T. 3 S. R. 14 W. S.B.B.M.; The N.E. Va and S. Vi of Sec. 24; and the N. J/2 and S.E. Va of Sec[.] 25 T. 3 S. R. 15 W. of S.B.B.M.; said center line being more fully described as follows, to-wit: [legal description], containing an area of 32.46 acres of land, more or less.
“Said parties of the First part reserve to themselves and except from the operation of this conveyance for a ware-house and ware-house storage purposes, a space of 200 feet in length, lying next adjacent to and midway between the ends of the side track now constructed upon said right of way and extending to the next adjacent boundary line of said right of way for the full length of said 200 feet.
“This Grant is made upon condition that the side-track now constructed upon said right of way shall be maintained and shall be used as a Station to receive and discharge freight; that such convenient crossings, not less than four, shall be made and maintained, with sufficient cattle guards, at such point on said right of way, as may be necessary for the full use and enjoyment of the lands adjoining said right of way, and so as to give access to and from the lands on either side thereof; that such culverts shall be constructed and maintained as may be necessary for the free passage of water across the same, and so located that the lands adjacent to said right of way will not be flooded on account of the roadbed of said railroad forming an embankment, and upon failure to comply with said conditions, or any of them, said right of way to revert to said parties of the first part and their successors in interest.
“To have and to hold all and singular the rights aforesaid unto said party of the second part and its assigns and successors forever, subject however to and upon the terms and conditions aforesaid.
“In Witness Whereof, the said The Redondo Land Company has caused these presents to be executed by its President and its Secretary and caused its seal to be hereto affixed, and said Silent has hereto set his hand and seal the day and year first above written.”
“The Redondo Land Company.
“By, D. McFarland
[252]“President.
“By, Hugh W. Vail
“Secretary.
“Chas. Silent [Seal]”
The Court of Appeal described the proceedings in this case: “The instant action was commenced on December 31, 1987, when real parties filed suit. Their fourth amended complaint alleged causes of action to quiet title, for inverse condemnation and ejectment and damages. Both the City and Santa Fe answered. [<]D The superior court trifurcated the issues of liability, heir-ship and damages. On December 23, 1992, the court issued its statement of decision on liability. It found that the right-of-way acquired by Santa Fe’s predecessor via the 1888 deed was an easement; that Santa Fe’s interest in the easement ceased upon its abandonment of the railway line; that the City’s and Santa Fe’s conduct with respect to [an agreement to sell the right of way] constituted a taking by inverse condemnation for which they were jointly liable; and real parties had no interest in that portion of the right of way extending into Hermosa Beach, such property having been conveyed in fee to Blanton Duncan by the [Redondo Land Company].”
The Court of Appeal further stated, “[b]oth the City and Santa Fe filed petitions for writ challenging the trial court’s decision. . . .”
I
Interpretation of a deed ordinarily is a question of law that we undertake de novo. (Faus v. City of Los Angeles (1967) 67 Cal.2d 350, 360 [62 Cal.Rptr. 193, 431 P.2d 849].)
The trial court found that “[t]he ‘right of way’ conveyed to the Redondo Beach Railway Company in the 1888 deed constituted an easement.” It was correct.
“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .” (Civ. Code, § 1639, italics added.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” {Id.., § 1638, italics added.) “The cardinal requirement in the construction of deeds and other contracts is that the intention of the parties as gathered from the four corners of the instrument must govern.” (Machado v. Southern [253]Pacific Transportation Co. (1991) 233 Cal.App.3d 347, 352 [284 Cal.Rptr. 560], italics added.) The foregoing rules are crucially important in the case of a recorded deed, for it provides public notice that successors in interest and innocent third parties may need to rely on for centuries. For that reason, whatever the parties may have intended, it is the language used in the resulting conveyance that must govern “if possible . . . .” (Civ. Code, § 1639.)
Hence, if the language of a conveyance unambiguously states the nature of the interest conveyed, there is no need to turn to extrinsic evidence bearing on that question. (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1132 [235 Cal.Rptr. 857]; cf. Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 [69 Cal.Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373].) In fact it is highly undesirable to do so, because considering extrinsic evidence undermines the public’s ability to rely on recorded notice of interests in land. Considering such evidence must be reserved for those instances in which “application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning.” (Siegel v. Hackler (1957) 181 Kan. 316, 319 [310 P.2d 914, 917], italics added.)
It has been said that “[w]ords ... do not have absolute and constant referents” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d at p. 38), but that is probably least true of the venerable terms of art describing interests in land. So although we must read the deed with an understanding of what its terms meant to drafters of railroad conveyances in 1888 (see Smiley v. Citibank (1995) 11 Cal.4th 138, 150, 151-153 [44 Cal.Rptr.2d 441, 900 P.2d 690] [definition of term must be inferred from context of statute’s enactment in 1864]), we do so aware of the ancient pedigree of such terms as “right of way.”
When we adhere to the foregoing principles, it becomes plain on independent review that the 1888 deed conveyed an easement and that there is no need to consider extrinsic evidence to divine the meaning of the words therein.
The granting clause conveys an interest in land consisting of a “right of way” to build a railroad. For $1 the grantors did “remise, release and quit-claim ... the right of way for the construction, maintenance and operation of a Steam Railroad, upon over and along [a] tract and parcel of land . . . over and through the lands of grantors . . . .”
The foregoing language gave the railroad a servitude on land (Civ. Code, § 801) rather than an estate in it (id., § 761). It was universally understood at [254]the time that such language conveyed only a right of way—i.e., an easement {id., § 801, subd. 4). Indeed, a railroad law treatise relied on similar uses of language in advising practitioners on how to write a deed conveying an easement as opposed to fee simple title. When drafting an “Ordinary Deed to Railroad Company, passing a Fee Simple” (Baldwin, American Railroad Law (1904) p. 609), the text should “grant, bargain, sell and confirm unto the . . . Railroad ... a certain parcel of land . . . described as follows . . . .” {Id. at p. 610.) To instead convey “only a Right of Way” {ibid.), the drafter is instructed to “[i]nsert in [the previously quoted text] in the granting clause, just before the description of the land conveyed, ‘a right of way for railroad purposes over and upon,’ and add to the habendum clause, ‘for use only for railroad purposes.’ ” {Ibid.)
As the majority’s analysis may fairly be read to acknowledge, a conveyance of a “right of way” “over” the grantor’s land is a conveyance of an easement. This must be so, because the language shows that the land company conveyed an appurtenant use to the railroad. (Civ. Code, § 801 [“right[s]-of-way” “may be attached to other land as incidents or appurtenances, and are then called easements”]; see Corea v. Higuera (1908) 153 Cal. 451, 454-456 [95 P. 882].) After all, “land cannot be appurtenant to land”; only a “thing incorporeal” can be. (Harris v. Elliott (1836) 35 U.S. (10 Pet.) 25, 54 [9 L.Ed. 333, 344].) Hence the undeviating body of California law explaining that language of this type conveys an easement. (Highland Realty Co. v. City of San Rafael (1956) 46 Cal.2d 669, 676 [298 P.2d 15] (Highland) [grant of “ ‘right of way for the construction and use of said Railroad upon, over, and along a strip of land . . . described as follows . . .’” “conveyed ... an easement, and nothing more”]; Ocean Shore Railroad Co. v. Doelger (1954) 127 Cal.App.2d 392, 394, 399-400 [274 P.2d 23] [“plaintiff was granted ‘a surface right of way, for railroad purposes only, over’ [a] 60-foot strip . . . upon certain conditions therein expressed”; easement conveyed]; Moakley v. Los Angeles Pacific Ry. Co. (1934) 139 Cal.App. 421, 422, 425 [34 P.2d 218] [deed conveyed “ ‘a right of way for railroad purposes over and along all that certain lot, piece or parcel of land’ ”; easement conveyed].)
This was the universal rule when the deed was recorded, although a variety of prepositional language was used. (Atlantic & P. R. Co. v. Lesueur (1888) 2 Ariz. 428 [19 P. 157, 158, 160] [grant of “ ‘the right of way through the public lands ... for the construction of a railroad and telegraph’ ” conveyed “a grant of an easement as defined by the law” and “was not a grant of the fee”]; Cincinnati, L, St. L. & C. Ry. Co. v. Geisel (1889) 119 Ind. 77 [21 N.E. 470] [deed to “ ‘release, relinquish, and forever quitclaim to the . . . Railroad ... the right of way for so much of said railroad, being eighty [255]feet wide, as may pass through the following described piece, parcel, or lot of land’ ” conveyed an easement]; Illinois Cent. R. Co. v. Houghton (1888) 126 111. 233 [18 N.E. 301, 302] [dictum] [conveying, “ ‘for the purpose of constructing, maintaining and operating thereon a . . . railroad .... the right of way over and through said tract’ ” granted an easement]; Brown v. Young (1886) 69 Iowa 625 [29 N.W. 941].) In East Alabama Railroad Co. v. Doe (1885) 114U.S. 340, 342-343, 350 [29 L.Ed. 136, 137, 139-140, 5 S.Ct. 869], decided some three and one-half years before the indenture at bench was recorded, the court held that an 1860 indenture conveying “ ‘unto the said railroad company ... the right of way over which to pass at all times . . . and particularly for the purpose of running . . . thereon a railroad’ ” conveyed “merely a right of way for a railroad”; “[n]o fee in the land was conveyed”; “[w]hat [the railway] acquired was merely an easement in the land
The rule did not appear to change in the decades following the recording of the deed. (Incorporated Town of Ackley v. Central States E. Co. (1928) 206 Iowa 533 [220 N.W. 315, 317] [deed operating to “‘release to the said [railway] company the right of way through any lands I own’ ”; easement conveyed]; Branch v. Central Trust Co. (1926) 320 Ill. 432 [151 N.E. 284, 287] [“[t]he grant to a railroad company of a right of way over, through, and upon land described does not convey the fee to any part of the land described . . .”]; Walker v. Illinois Cent. R. Co. (1905) 215 Ill. 610 [74 N.E. 812, 813-814] [deed to “ ‘grant, bargain, sell... for the purpose of constructing, maintaining, and operating thereon a single or double track railroad ... the right of way for the same over and through the following tracts or parcels of land . . . [description]”’; easement conveyed].)
The 1888 deed’s unvarying and repeated use of the term “right of way” without reference to a conveyance of “land” or “title” is simply fatal to any conclusion that fee title was conveyed. “The general principle that a deed to a railroad company which conveys a ‘right’ rather than a strip, piece, parcel, or tract of ‘land’ (usually a right of way but occasionally the right or privilege of constructing, operating, or maintaining a railroad) must be construed as conveying an easement rather than a fee has been applied or recognized in numerous decisions.” (Annot., Deed to Railroad Company as Conveying Fee or Easement (1941) 132 A.L.R. 142, 172-173.) “All authorities agree that the grant of a ‘right of way’ confers only an easement in the land.” (Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co. (1913) 106 Tex. 94 [157 S.W. 737, 739]; see also Annot., Deed to Railroad Company Covering Right of Way, but Otherwise Appearing to Be Absolute Conveyance, as Conveying Fee or Easement (1933) 84 A.L.R. 271.)
It is different, of course, when “land” or a “parcel” is conveyed. (Machado v. Southern Pacific Transportation Co., supra, 233 Cal.App.3d 347, 351, 361 [256][deed granted a “ ‘certain strip or parcel of land for a right of way for a standard gauge railroad’ ” and habendum clause referred to “ ‘premises’ fee title conveyed]; Concord & Bay Point Land Co. v. City of Concord (1991) 229 Cal.App.3d 289, 293, 295 [280 Cal.Rptr. 623] [deed conveyed “ ‘certain property’ ” “ ‘more particularly described as’ ” “ ‘parcel three[,]’ ” a “ ‘strip of land sixty (60) feet in width’ ”; “the deed clearly grants an estate in land”]; Faus v. Pacific Electric Ry. Co. (1956) 146 Cal.App.2d 370, 380 [303 P.2d 814], disapproved on another point in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2 [44 Cal.Rptr. 767, 402 P.2d 839] [deeds “not of a right of way ‘upon, over, and along a strip of land[] ’ .... were grants of the entire land for the purpose of use as a way for an electric railroad” (italics added)]; Moakley v. Blog (1928) 90 Cal.App. 96, 99 [265 P. 548] [deed conveying to railroad “ ‘all that certain lot, piece or parcel of land . . . bounded and particularly described as follows’ ”; fee title conveyed].) But here, in sharp contrast, “[t]he deed literally, from beginning to end, provides for a ‘right-of-way’. These words appear [eight] times therein.” (Rock Island, A. & L. R. Co. v. Gournay (1943) 205 La. 125 [17 So.2d 8, 11], rehg. den. (1944) 205 La. 164 [17 So.2d 21] [holding easement conveyed].)
Finally, the provision of the 1888 deed that the right-of-way was to be used for “a Steam Railroad” supports the conclusion that it transferred an easement. (Highland, supra, 46 Cal.2d 669, 676 [ “ ‘for the construction and use of said Railroad’ ”]; Keokuk County v. Reinier (1939) 227 Iowa 499 [288 N.W. 676, 677, 678] [grant “ ‘for all purposes incident and necessary to the construction and operation of a railroad’ ” conveyed right-of-way rather than fee]; Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., supra, 157 S.W. 737, 738 [“ ‘ “for the purpose of constructing, operating and maintaining its railroad’””]; Fitchburg R. Co. v. Frost (1888) 147 Mass. 118 [16 N.E. 773, 775] [“ ‘for railroad purposes only’ ”; easement conveyed]; see also Baldwin, American Railroad Law, op. cit. supra, p. 610 [drafter should “add to the habendum clause, ‘for use only for railroad purposes’ ”].) Naturally, language of limitation can also reveal that a defeasible fee was conveyed. (Epworth Assembly v. Ludington & N. Ry. (1926) 236 Mich. 565 [211 N.W. 99, 102] [deeds for “ ‘railroad purposes’ ”; but “[i]n neither deed is the land conveyed for a right of way”].) Such is not the case here, however: a “right of way” was conveyed “for ... a Steam Railroad . . . .”
II
So far I believe that the majority and I largely agree. They lead themselves astray only when they begin to place undue emphasis on certain other language in the deed.
First, they conclude that because the term “quit-claim” appears in the indenture, a rule of construction supports the view that fee title was conveyed. What they fail to understand, however, is that any interest in land that [257]can be conveyed by deed is conveyable by quitclaim deed. This includes an easement. (Westlake v. Silva (1942) 49 Cal.App.2d 476, 478-479 [121 P.2d 872].) It even includes a reversionary interest such as a right to recover possession on breach of condition subsequent. (Thornton v. Middletown E. Corp. (1937) 21 Cal.App.2d 707, 708-710 [70 P.2d 234]; see Civ. Code, § 1046.)
It is true that the grantors in Westlake held no more than an easement. But cases construing quitclaim deeds by the apparent or stated holder of fee title as conveying an easement to a railroad are many. (Estate of Rockafellow v. Lihs (Iowa Ct.App. 1992) 494 N.W.2d 734, 735-736; Veach v. Culp (1979) 92 Wn.2d 570 [599 P.2d 526, 527-528]; Vandalia R. Co. v. Topping (1916) 62 Ind.App. 657 [113 N.E. 421, 422-424] [construing statute]; Cincinnati, H. & D. Ry. Co. v. Wachter (1904) 70 Ohio St. 113 [70 N.E. 974, 975]; Cincinnati, I., St. L. & C. Ry. Co. v. Geisel, supra, 21 N.E. 470.) A somewhat standardized form appears to have been used for such conveyances.
Indeed, as plaintiffs explain with regard to defendants herein, the majority simply “confuse the form of the conveyance with the interest being conveyed.” The term “quitclaim” has nothing to do with the latter. It has been stated that “[a] quitclaim deed transfers whatever present right or interest the grantor has in the property.” (Westlake v. Silva, supra, 49 Cal.App.2d at p. 478.) But the term “whatever,” with its connotation of uncertainty, is the key to understanding such declarations. If the vendor simply wishes to sell an interest in land “as is,” i.e., without right of possession by the grantee, warranty of title, or other covenants implied in certain grant deeds, a quitclaim deed is the proper instrument. (See 2 Miller & Starr, Current Law of Cal. Real Estate (2d ed. 1989) § 6:5, pp. 493-494; id., § 6:12, p. 504.) The grantor may not even know what interest he or she has (see 2 Miller & Starr, op. cit. supra, § 6:12, p. 504), but may wish to divest himself or herself of it in exchange for some benefit or to avoid some detriment—e.g., in exchange for a nearby railroad, or to avoid being a defendant in a quiet title suit— without warranting title or making other assurances. If so, then a quitclaim deed is the device used. If “it has been often decided by this court that a quitclaim deed conveys the absolute fee-simple title if the party executing it had such title” (Spaulding v. Bradley (1889) 79 Cal. 449, 456 [22 P. 47]), that is likely so because the grantor wished to eliminate his or her entire estate or interest, whatever it might be, without “makfing any] assurance to the grantee that he or she actually has good title to, or even any interest at all in, the property . . . .” (6A Powell on Real Property (1995 ed.) ^ 897[1] [b], p. 81A-29.) Here, in notable contrast, the face of the deed shows unequivocally that only a right-of-way was conveyed.
Second, the majority make too much of the use of “land” in the deed. That instrument describes the right-of-way as “a strip of land of the uniform width [258]of 100 feet” and as “containing an area of 32.46 acres of land, more or less.” When the deed is read as a whole, it is clear that these definitional references are inconsequential. The right-of-way is a strip of land—it does not float in the air. The fact that an easement that consists of a burden on land is described in units of land measure does not transform it into a fee, as an appellate decision of this state has implicitly recognized. In Moakley v. Los Angeles Pacific Ry. Co., supra, 139 Cal.App. 421, a right-of-way consisting of “ ‘a strip of land 35 feet in width . . . containing 0.67 of an acre of land’ ” (id. at p. 422) was conveyed. The conveyance also provided that “ ‘said right of way and land shall immediately . . . revert’ ” (id. at p. 423) to the grantors and their heirs under certain conditions. Moakley found only the last-quoted reference to “land” controversial on the question whether fee title or an easement was conveyed (id. at p. 423), and correctly concluded that an easement was created (id. at p. 425).
Given the wealth of law explaining the meaning of the deed’s repeated references to a right-of-way and its language of appurtenance, it cannot be said that “application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning.” (Siegel v. Hackler, supra, 310 P.2d 914, 917, italics added.) Neither the quitclaim nature of the conveyance nor its mentions of “land” create so great an ambiguity.
Other observations made by the majority require only brief comment.
The majority observe that the term “right of way” may refer to land itself rather than the use of land. That is true (Machado v. Southern Pacific Transportation Co., supra, 233 Cal.App.3d 347, 354), but it is beside the point. In the 1888 deed no land was conveyed, but only a right-of-way for a railroad. That is the crucial distinction. “There is a vast difference between a grant for purposes of ‘right of way’ for a road and a grant of land ‘to be used for a road.’ The latter grant may be entirely consistent with the conveyance of a fee-simple title . . . , but the grant of land as a right of way recognizes nothing but an easement.” (Parks v. Gates (1921) 186 Cal. 151, 155 [199 P. 40].)
The majority further note that the right-of-way is given a precise legal description and its acreage is also described. Relying on Moakley v. Blog, supra, 90 Cal.App. 96, they conclude that when a deed includes a legal description of this type, it is evidence that a fee was conveyed. But Moakley is properly read as deciding that a fee was conveyed because the deed recited that the grantors conveyed to the railroad “ ‘all that certain lot, piece or parcel of land . . . bounded and particularly described as follows . . . .’” [259](Ibid.) The salient observation to be made about the 1888 deed’s legal description and acreage of the right-of-way is that it describes not “ ‘that certain lot, piece or parcel of land’ ” {ibid.), but instead the land “upon over and along” which the right-of-way extends. It appears not to have been unusual to describe the land across which an railroad easement extends, and that is what occurred here. (Moakley v. Los Angeles Pacific Ry. Co., supra, 139 Cal.App. 421, 422, 425 [deed conveyed “ ‘a right of way for railroad purposes over and along all that certain lot, piece or parcel of land . . . bounded and particularly described as follows, to wit: a strip of land 35 feet in width the center line of which is described as follows: . . . containing 0.67 of an acre of land’ easement created]; El Dorado & Wessen Railway Company v. Smith (1961) 233 Ark. 298 [344 S.W.2d 343, 344, 345] [conveying “ ‘strip of land . . . over and upon the following described land [five 40-acre tracts are described]’ ” created easement]; Rock Island, A. & L. R. Co. v. Gournay, supra, 17 So.2d 8, 10 [conveying “ ‘strip of land . . . over and upon the following described land ....[*][] [legal description] . . . said right of way hereby conveyed containing 3.81 acres’ ” created easement (italics deleted)]; Sherman v. Petroleum Exploration (Ky.Ct.App. 1939) 280 Ky. 105 [132 S.W.2d 768, 770, 772, 132 A.L.R. 137] [conveying “ ‘strip, tract or parcel of land for railroad right of way’ ” “ ‘containing [2.2] acres, more or less’ ’’ created easement].)
The majority urge that certain language of reservation in the 1888 deed supports the view that fee title was conveyed. Their discussion, however, is incomplete. The deed both “reserve[s]” and “except[s] from the operation of this conveyance” “a space” “for a ware-house and ware-house storage purposes. . . .” “Exception” and “reservation” mean entirely different things, “though the terms are often used promiscuously” (Lange v. Waters (1909) 156 Cal. 142, 146 [103 P. 889]): an exception limits the extent of the interest or estate conveyed, keeping the whole prior estate or interest in the grantor, whereas a reservation creates a new, lesser interest in a grantor conveying fee title. (See 5 Miller & Starr, op. cit. supra, Easements § 15:18, pp. 444-445; see also Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 38 [31 Cal.Rptr.2d 378].) “An exception is always of some part of the estate not granted at all. A reservation is always of something taken back out of that which is clearly granted.” (Sears v. Ackerman (1903) 138 Cal. 583, 586 [72 P. 171].) Thus it was inartful drafting to both “reserve” and “except" some land from the right of way. It is practical, however, to conclude that the parties intended to except from the right-of-way land for a warehouse, so that the land company would keep fee title to it unencumbered by any servitude. In other words, they merely limited the size of the easement to a very slight extent.
The majority also suggest that the deed’s reverter clause is evidence that a fee was conveyed. That is implausible.
[260]An easement may be conveyed subject to conditions subsequent and extinguished if they occur. (Lincoln v. Narom Development Co. (1970) 10 Cal.App.3d 619, 622-623 [89 Cal.Rptr. 128]; Dotson v. Wolfe (Fla.Dist.Ct.App. 1980) 391 So.2d 757, 759; University City v. Chicago, R. I. & P. Ry. Co. (1941) 347 Mo. 814 [149 S.W.2d 321, 326].) The deed contains three conditions requiring the right-of-way to be maintained so as to avoid diminishing the value of adjoining land. By law the easement could be extinguished only under certain general conditions. (Civ. Code, §811.) Although the statute vaguely declares that one such condition is “the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise” (id., § 811, subd. 3), the land company undoubtedly wished to require that specific conditions be met so that the right-of-way would not damage the value of adjacent land, and hence the deed provides that failing to provide proper infrastructure or maintenance would terminate the railroad’s interest.
“Of course the word ‘revert’ in its technical sense as dealing exclusively with titles should not be used in conjunction with an easement.” (Brown v. Weare (1941) 348 Mo. 135 [152 S.W.2d 649, 655, 136 A.L.R. 286].) For “an easement . . . abandoned by nonuse or use outside its limitations does not ‘revert’ to the grantor, it is simply extinguished.” (Concord & Bay Point Land Co. v. City of Concord, supra, 229 Cal.App.3d 289, 295.) But the inaccurate use of “revert” in a railway conveyance appears to be widespread. (See Brown v. Weare, supra, 152 S.W.2d at p. 655.) Hence, a deed conveying a right-of-way rather than title to land may have a reverter clause, and though the term is misused, yet an easement is conveyed. (Moakley v. Los Angeles Pacific Ry. Co., supra, 139 Cal.App. 421, 422, 423, 425 [deed conveyed “ ‘right of way for railroad purposes’ ” and provided that on abandonment “ ‘said right of way and land shall immediately thereafter revert to said first parties’ ”; easement conveyed].) In Rosecrans v. Pacific Elec. Ry. Co. (1943) 21 Cal.2d 602 [134 P.2d 245], the deed conveyed a “right of way for a railroad across the real property therein described” (id. at p. 603)—i.e., an easement—and provided that “ ‘upon . . . breach [of specified conditions] the right of way hereby granted shall revert to first party his heirs or assigns, and upon such breach, first party, his heirs or assigns shall have the right to enter upon said right of way and take possession thereof.[’]” (Id. at p. 604.)
The majority mention that the deed nowhere uses the term “easement.” It would, however, have been imprecise to do so. In addition to “[t]he right-of-way” (Civ. Code, § 801, subd. 4), many other types of appurtenant easements have been recognized in our Civil Code since 1872. These include the “right of pasture” (id., subd. 1), the “right of taking water, wood, [261]minerals, and other things” (id.., subd. 5), and even the “right of a seat in church" (id., subd. 16). The majority hint that “easement” and “right of way” may be equivalent, but they are not—“right of way” is the more specific term, and to utilize it was better drafting.
In addition to the legal principles explicated above, it would not have been practical to convey fee title to the railroad. The parties’ exhibits suggest that the strip was perhaps two or three miles long. A long strip 100 feet wide meandering through others’ adjacent land in what was remote territory (Manhattan Beach v. Cortelyou (1938) 10 Cal.2d 653, 664 [76 P.2d 483]) would not have been more valuable if held in fee simple rather than used for a right-of-way: it was landlocked and to be marketable as subdivided parcels would have required, at a minimum, the creation of many ways of necessity. “[T]he shape of the tract, a 100-foot strip, is peculiarly suited to railway purposes and to little else.” (El Dorado & Wessen Railway Company v. Smith, supra, 344 S.W.2d 343, 345.) The size and shape of the right-of-way supports the conclusion that an easement was conveyed.
Ill
Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d 33, held that extrinsic evidence must be considered to interpret the term “property” in a contract (id. at p. 36) notwithstanding any claim that “the contract had a plain meaning” (ibid.). From that holding, the case drew broad conclusions regarding the propriety of considering, “at least [as] a preliminary” matter (id. at p. 39), extrinsic evidence when presented with a written transaction that appears to contain unambiguous terms.
Such aspects of Pacific Gas & E. Co. have been criticized as “casting] a long shadow of uncertainty over all transactions negotiated and executed under the law of California.” (Trident Center v. Connecticut General Life Ins. (9th Cir. 1988) 847 F.2d 564, 569.) In the same vein, in a dissent joined by two other justices, I have criticized the “emasculation of the parol evidence rule” in Pacific Gas & E. Co. (Delta Dynamics, Inc. v. Arioto (1968) 69 Cal.2d 525, 531 [72 Cal.Rptr. 785, 446 P.2d 785] (dis. opn. of Mosk, J.).) “The problem,” I stated, “is that which devolves upon members of the bar who are commissioned by clients to prepare a written instrument able to withstand future assaults. . . . The written word, heretofore deemed immutable, is now at all times subject to alteration by self-serving recitals based upon fading memories of antecedent events. This, I submit, is a serious impediment to the certainty required in commercial transactions.” (Id. at p. 532.)
Nowhere are the foregoing criticisms more telling than in the case of a deed giving notice to the world of the boundaries and nature of ownership of [262]a plot of land. As stated, a deed may need to provide such notice for centuries, and very precise terminology and syntax have been devised for that purpose. Hence, a conveyance of a “ ‘right of way’ ” (Highland, supra, 46 Cal.2d 669, 676) transfers an entirely different interest in land from a conveyance of a “ ‘certain strip or parcel of land for a right of way’ ” (Machado v. Southern Pacific Transportation Co., supra, 233 Cal.App.3d 347, 351). To question the meaning of such precisely differentiated terminology on the basis of dubious extrinsic evidence is to undermine the reliability of notice on which the public depends.
Fortunately, Pacific Gas & E. Co. v. G. W. Thomas Dray age etc. Co., supra, 69 Cal.2d 33, is distinguishable: it did not consider a recorded instrument that, using venerable terms of art, announced interests in land to the world. We need not rely on Pacific Gas & E. Co. in a case such as this. Instead we must firmly adhere to the rule that if the language of a conveyance unambiguously states the nature of the interest conveyed, there is no need to turn to extrinsic evidence bearing on that question. (Baker v. Ramirez, supra, 190 Cal.App.3d 1123, 1132.)
The majority’s reliance on extrinsic evidence for their conclusion that the 1888 deed conveyed fee title does, however, require a response. It becomes apparent that the extrinsic evidence sheds scant light on the nature of the interest conveyed.
It has been held that when there is “ ‘no conflict’ in such extrinsic evidence as has been introduced, ‘we must make an independent determination of the meaning’ of a legal instrument.” (Faus v. City of Los Angeles, supra, 67 Cal.2d 350, 360.) The rule could be more precisely stated. If the nonconflicting extrinsic evidence consists solely of other written instruments such as contracts or deeds, we interpret their meaning and their effect on the 1888 deed de novo. If, on the other hand, the extrinsic evidence consists primarily of facts adduced through testimony at trial, we must defer to trial court findings that are based on such evidence, even if there appears to be no conflict, because the court is better positioned than are we to observe a witness’s demeanor and discern his or her credibility. Testimony can be uncontroverted and yet be presented in a fashion that is unpersuasive for reasons not evident on a written record.
Turning to the extrinsic evidence presented:
The trial court found that “[ejxtrinsic evidence also supports, but is not necessary to, such construction [of the 1888 deed as conveying an easement]. Such extrinsic evidence includes: (a) the fact that in other deeds the [263]Redondo Land Company clearly transferred fee interests but did not utilize similar language in the 1888 deed; [and] (b) the fact that the Redondo Land Company purported to convey property which included a portion of the subject right-of-way in the metes and bounds description and in the calculated acreage in a deed to Duncan . . .
If extrinsic evidence were necessary to our conclusion, we would review the instruments transferring fee interests de novo. The court was apparently referring to deeds conveying property to Blanton Duncan. Conveyances to him evidently occurred in 1895 and 1896. The record contains only transcriptions of the purported deeds and not the originals. In those transcriptions the Redondo Land Company conveys to him, respectively, “all those certain lots, pieces or parcels of land” and “all that certain lot, piece or parcel of land . . . .” There does not appear to be a stipulation that these transcriptions faithfully reproduced the originals. On independent review, however, if we were to agree that the transcriptions are proper evidence and were to construe their language, we should agree with the trial court that the language was materially different and illustrated that some years later the drafter knew how to convey a fee rather than an easement. (See Moakley v. Blog, supra, 90 Cal.App. 96, 99.)
The trial court’s finding that the Redondo Land Company conveyed part of the right-of-way in a deed to Duncan should be reviewed for substantial evidence, for it is based on surveyors’ expert testimony at trial. Substantial evidence in the record supports that finding: the surveyors testified that the legal description of the conveyance traversed the right-of-way.
The trial court found, “[w]ith respect to defendants’ arguments based on extrinsic evidence, the unrecorded indenture of 1897 . . . did not demonstrate a contrary intent in 1888 to convey more than an easement. Nor did it constitute a later conveyance to the railroad of an interest greater than an easement. [*][]... The quiet title judgment of 1901 . . . and the pleadings in the various consolidated quiet title actions ... do not demonstrate a contrary intent in 1888 to convey more than an easement. Nor do these exhibits demonstrate that the railroad ever obtained more than an easement interest.”
On independent review, it is evident that the trial court ruled correctly in part and erroneously in part. The majority observe that the unrecorded 1897 indenture modifying the 1888 deed’s infrastructure and maintenance conditions declared that the deed “shall remain a grant as therein expressed . . . .” (Italics added.) What the deed expressed, however, was a grant of an easement. In fact, the 1897 indenture referred to “the right of way in said [1888] deed granted . . . .” The 1897 indenture supports the view that an easement was conveyed.
[264]On the other hand, an amended complaint in a 1901 action to quiet title to land owned by plaintiff Redondo Land Company excepted from the suit the land underlying the conveyance to the railroad under the 1888 deed. Defendants contend that if the company still held fee title to the land, it would have included it in the suit. On independent review, we may concede that this exception provides some extrinsic evidence for that view.
The parties also discuss what is purported to be a judgment in that action. However, their exhibits contain no copy of an original document, but only a typed transcription. In the absence of a stipulation, we should not consider it to be evidence. Nor should we conclude that a memorandum of agreement regarding interests in land, apparently by the Redondo Land Company’s shareholders, shows that a fee was conveyed in 1888. To the extent that the transcription of that memorandum contained in the exhibits is competent evidence of anything, it excepted “those certain parcels of land heretofore granted by the Redondo Land Company to Blanton Duncan” and “that certain right of way heretofore granted” to the railroad. That language, differentiating between “land” and the “right of way,” does not show that the 1888 deed conveyed fee title. It suggests the contrary.
The foregoing items, to the extent they are competent evidence at all, are, as the Court of Appeal effectively concluded, trifling: they shed little light on the meaning of the 1888 deed. Perhaps sensing so, defendants emphasize a 1903 decree of dissolution of the Redondo Land Company. The decree states in part, “And it appearing further that all of the property of said corporation has been disposed of and that all of the business of said corporation has come to an end [•}[] Now therefore it is ordered and adjudged that the said corporation, The Redondo Land Company, be, and the same is hereby dissolved, and its corporate existence ended . . . .” (Capitalization altered.)
The Court of Appeal agreed to take judicial notice of the contents of the decree, but concluded that it was of “marginal” significance. Defendants insist that the 1903 decree shows not only that fee title was conveyed in 1888, but also that even if an easement was conveyed in 1888, the decree means that plaintiffs cannot now claim any title to the land.
This claim fails because it relies on evidence that the parties stipulated at trial would not be introduced. Apparently it came to the parties’ attention after trial was concluded and while appeal was pending. However, at the beginning of trial, the parties bound themselves as to the corpus of evidence to be considered in this case by stipulating that “by the time each party rests in this case the parties will have offered into evidence all documents in the [265]chain of title to the subject property or adjacent land that are pertinent to the decision of this case. [<]D The parties are unaware of any other documents. The court need not consider the possible existence of other documents. Apart from the documents offered there are no others that the parties are aware of that bear on this case or are necessary for the court to consider in arriving at a decision on this case.”
A fair reading of this stipulation is that the parties agreed to be bound by the documentary evidence presented at trial. Having entered into the stipulation, defendants may not present new evidence now. (See Estate of Cooper (1970) 11 Cal.App.3d 1114, 1119, 1122-1124 [90 Cal.Rptr. 283].) The majority grant the request for judicial notice, but it should be denied.
As the Court of Appeal concluded, “construction of the deed does not require resort to extrinsic evidence.” The material that exists, if competent or admissible evidence at all, “either does not support [defendants’] interpretation or is too attenuated to be of much relevance.”
IV
Defendant Atchison, Topeka and Santa Fe Railway Company (Santa Fe) contends that the Court of Appeal erred in affirming the trial court’s judgment that it was liable along with defendant city of Manhattan Beach (the city) in inverse condemnation for taking the land underlying the easement. Insofar as it concerns this point, Santa Fe’s contention that the Court of Appeal’s judgment should be reversed has merit.
In 1986 and 1989, in recorded documents creating and then modifying a “Park Acquisition Agreement,” the city and Santa Fe agreed essentially as follows: Santa Fe wanted to develop 2.12 acres of land lying at one end of its right-of-way for a commercial project, and the city wanted to acquire the right-of-way for a recreational trail. Santa Fe agreed to convey to the city its interest in the land over which the right-of-way ran within the city, except for the 2.12-acre parcel. The city agreed to pay $4.2 million, to give Santa Fe title to certain parcels, and to rezone the 2.12-acre parcel for commercial use. Santa Fe agreed to “indemnify ... the city . . . from any claim . . . arising out of alleged defective title to any portion or parcel of railroad right-of-way sold . . . under this agreement” (capitalization altered) up to the sum of (1) the $4.2 million purchase price of the right-of-way and (2) the value of the parcels to which the city was giving it title. The parties agreed that if any claim of disputed title over the right-of-way was presented to the city, Santa Fe could begin, at its own expense, eminent domain proceedings in the city’s name to acquire the claimant’s interest. Finally, the city agreed to rezone the right-of-way for “Open Space Recreation.”
[266]At trial, virtually no evidence regarding the acquisition agreement was introduced. Nor was there much discussion of the point at closing argument. Nevertheless, in the trial court’s statement of decision it determined, in essence, that the acquisition agreement showed that Santa Fe actively participated in taking plaintiffs’ land and therefore it was liable under the authority of Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659 [39 Cal.Rptr. 903, 394 P.2d 719].
Because the trial court based its determination largely (and probably entirely, given the dearth of evidence presented at trial) on the acquisition agreement, it decided a question that was either a question of law—the interpretation of a written instrument (Faus v. City of Los Angeles, supra, 67 Cal.2d 350, 360)—or was a mixed question of law and fact that was primarily legal. Its ruling should be subjected to independent review.
Under that standard, it appears that the trial court’s interpretation of the agreement was erroneous. The acquisition agreement’s provisions are designed to facilitate the transfer of the right-of-way from Santa Fe, as private seller, to the city as buyer, in exchange for which the former would be paid, given other land, and allowed to develop its 2.12-acre parcel. Santa Fe appears to be correct that nothing in the agreement shows that it took the land underlying the right-of-way for public use: if any entity did so, it was the city. Contrary to the trial court’s and the Court of Appeal’s reasoning, the acquisition agreement created no joint project to develop the right-of-way: Santa Fe wanted to be rid of it. Although the agreement declares that Santa Fe “seeks to transform undeveloped property in [the city] into developed property in accordance with the plan for the Project,” elsewhere the “Project” was defined as “all Project areas east of Sepulveda Boulevard”— i.e., the 2.12-acre parcel.
Article I, section 19, of the California Constitution provides: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.” As Santa Fe persuasively argues, a private seller cannot be liable in inverse condemnation merely because it conveys an interest in land to a municipality that converts the land to a public use. And that is all that the acquisition agreement provides for. It is true that in Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 662, we held that a railroad can be liable in inverse condemnation when it acts alongside the state to cause an interest in land to be condemned. But [267]Breidert is distinguishable. There the railroad “was an active joint participant in closing [a] crossing” (ibid.) for the public benefit, creating a cul-de-sac where the crossing once gave property owners access to the network of public streets. No such “active joint participat[ion]” (ibid.) in creating a park appears in the acquisition agreement before us. The city alone is liable to plaintiffs for any taking of their land that may have occurred. Because plans for future appropriations of interests in land do not give rise to a cause of action in inverse condemnation (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 119-120 [109 Cal.Rptr. 799, 514 P.2d 111]), it is unnecessary to analyze liability for future takings of land or interests therein, including those accompanying or following future eminent domain or other proceedings.
Conclusion
Whether the 1888 deed conveyed a defeasible fee or an easement is not an arcane academic question. With railroad rights of way currently being converted to other uses, sometimes with the possibility of resuming their original function, it is of considerable practical importance to interpret deeds of this type correctly. (See 16 U.S.C. § 1247(d) [converting railroad rights of way to trails and preserving them for future rail use]; 23 U.S.C. § 101(a), final par. [“term ‘transportation enhancement activities’ ” includes “preservation of abandoned railway corridors”]; 49 U.S.C. former § 10906, now § 10905 [entitled “[offering abandoned rail properties for sale for public purposes”].) The majority’s interpretation is erroneous.
The Court of Appeal’s judgment should be reversed insofar as it concludes that Santa Fe is jointly liable with the City of Manhattan Beach in inverse condemnation. In all other respects, its judgment should be affirmed.