Charles E. Barnett                                                 John M. Hedges
Kay, Casto, Chaney, Love & Wise                      Charleston, West Virginia
Charleston, West Virginia                                    Attorney for Amicus Curiae
Attorney for the Appellees                                   Elk River Rails-To-Trails
                                                                           Foundation, Inc.; Mountain
Jan L. Fox                                                           State Wheelers Bicycle
Deputy Attorney General                                     Club, Inc.; North Bend
Charleston, West Virginia                                     Rails-To-Trails Foundation,
Attorney for Appellants                                         Inc.; West Virginia Rails-
                                                                            To-Trails Council;
                                                                           Greenbrier River Association, Inc.; Greenbrier
                                                                           River Watershed Association, Inc.; Monongahela
                                                                           River Trails Conservancy,
                                                                           Ltd.; and West Virginia
                                                                           Scenic Trails Association,
                                                                           Inc.

The Opinion of the Court was delivered PER CURIAM.

Per Curiam:

    The defendants, the West Virginia Railroad Maintenance Authority, a public corporation, and Robert Trocin, Commissioner of the Department of Commerce, appeal an order of the Circuit Court of Kanawha County which granted the plaintiffs' motion for summary judgment. The case involves a civil action instituted to determine the ownership of a 100-foot wide strip of land which is part of what is commonly known as the Greenbrier River Trail. The defendants contend that the contested strip of land was conveyed by a general warranty deed to the Greenbrier Railway Company in 1899. The plaintiffs contend that the 1899 deed conveyed only an easement for a right-of-way across property which they now own.

    The property in question was conveyed to the Greenbrier Railway Company, a corporation, by deed dated July 8, 1899, from William L. McNeel and Mary L. McNeel, his wife. That deed is recorded in the Office of the Clerk of the County Commission of Greenbrier County in Deed Book No. 53, at page 522. The granting clause of the deed states that the McNeels "do hereby sell and grant unto the said Railway a strip of land for a right-of-way one hundred (100) feet wide through the lands of the parties of the first part, situate in the District of Falling Springs, in Greenbrier County, State of West Virginia[.]" The habendum clause of the deed states: "To have and to hold said strip of land unto said Railway for a right of way, its successors and assigns forever." The deed does not contain any reverter clause, nor does it contain any clause which expressly or impliedly forfeits the land upon the discontinuance of its use by the Greenbrier Railway Company or its successors in interest. Moreover, the deed contains a covenant of general warranty.See footnote 2

    The contested strip of land is one of several strips acquired for the construction of a railroad, which became known as the "Greenbrier Line," running along the Greenbrier River from Caldwell in Greenbrier County to a place at or near Durbin in Pocahontas County. The railroad was constructed and was operated for many years either by the Greenbrier Railway Company or its immediate successor in title, the Chesapeake and Ohio Railway Company (C & O Railway), a Virginia corporation.

    In March 1975, C & O Railway applied to the Interstate Commerce Commission (ICC) for permission to abandon a portion of the Greenbrier Line. The contested strip of land was a part of the railroad line upon which service was to be discontinued. The ICC granted its permission, and service was discontinued. However, C & O continued to hold the title to the property until it was conveyed to the West Virginia Railroad Maintenance Authority by deed dated June 20, 1980.See footnote 3

    The circuit court apparently based its ruling on the fact that, at the time the McNeel deed was made, the Greenbrier Railway Company obtained 48 similar deeds, 39 of which contained clauses identical to the granting and habendum clauses in the McNeel deed. The circuit court stated that 30 of these deeds were made on preprinted forms, and, while the McNeel deed is handwritten, it contains verbatim the same language as the preprinted forms. Based on this reasoning, the circuit court concluded that the McNeel deed was prepared by the Greenbrier Railway Company and that any ambiguity must, therefore, be resolved in favor of the plaintiffs.

    The circuit court then found that the use of the contested strip of land for recreational purposes was not a part of the purpose for which the easement was created. The defendants appeal from the findings of the circuit court and seek a declaration that they are the owners of the contested strip of land in fee simple.
    
    On appeal, we granted several organizations the right to file an amicus curiae brief. A brief was filed on behalf of Elk River Rails-To-Trails Foundation, Inc.; Mountain State Wheelers Bicycle Club, Inc.; North Bend Rails-To-Trails Foundation, Inc.; West Virginia Rails-To-Trails Council; Greenbrier River Association, Inc.; Greenbrier River Watershed Association, Inc.; Monongahela River Trails Conservancy, Ltd.; and West Virginia Scenic Trails Association, Inc.

See generally 23 Am. Jur. 2d Deeds § 265 (1983).

    In Killgore v. Cabell County Court, 80 W. Va. 283, 92 S.E. 562 (1917), this Court considered a grant of land to a railroad. The deed stated that the land was granted "for the construction of a double track of railway." 80 W. Va. at 284, 92 S.E. at 562. The plaintiffs claimed that the deed therefore granted only an easement. The Court, however, noted that "[i]t has been held in many cases that words used in a deed declaratory of the purpose for which the land is granted do not have the effect of limiting the estate granted by the deed. [Citations omitted.]" 80 W. Va. at 286, 92 S.E. at 563. The Court held that the deed conveyed a fee simple absolute estate.

    Other jurisdictions have also found creation of a fee simple estate, despite reference in a deed to the purpose of the conveyance as a right-of-way. In Maberry v. Gueths, 238 Mont. 304, 777 P.2d 1285 (1989), the court examined a grant of land to a railroad and found creation of a fee simple, despite reference to the land as a right-of-way. The deed considered in that case contained language in the habendum clause similar to that before us now, namely "to have and to hold . . . its successors and assigns forever." 238 Mont. at ___, 777 P.2d at 1288. The Court found that "[t]he language relating to use as a railroad right of way is merely descriptive as to use and not as a limitation on the grant." 238 Mont. at ___, 777 P.2d at 1288. See also Machado v. Southern Pac. Transp. Co., 233 Cal. App. 3d 347, 284 Cal. Rptr. 560 (1991); Mississippi Cent. R. Co. v. Ratcliff, 214 Miss. 674, 59 So. 2d 311 (1952); Arkansas Improvement Co. v. Kansas City S. Ry. Co., 189 La. 921, 181 So. 445 (1938); Johnson v. Valdosta, M. & W. R. Co., 169 Ga. 559, 150 S.E. 845 (1929). See generally Annot., 6 A.L.R.3d 973 (1966).

    In this case, as well, the words "for a right-of-way" in the deed are not limiting, but are merely descriptive. The deed clearly "grant[s] unto the said Railway a strip of land," and not simply a right to use the land. (Emphasis added). The granting clause states that the grantors "do hereby sell and grant unto the said Railway a strip of land for a right-of-way." The habendum clause gives to the grantee the right "[t]o have and to hold said strip of land unto said Railway for a right of way, its successors and assigns forever." Examining the deed as a whole, as required by Hall, supra, we must conclude that the deed creates a fee simple, not merely an easement.

    We, therefore, conclude that summary judgment was improperly granted. Accordingly, we reverse the decision of the circuit court and hold that the defendants own the land in fee simple.

                                        Reversed.

                    /s/ B.M. Yeager, N.P."