George Rose Smith, Justice.
The appellants, husband and wife, filed this suit to quiet their title to part of a recently abandoned railroad right-of-way and to cancel a deed by which the railway company had purportedly conveyed the disputed part of the right-of-way to the appellee Pearson. This appeal is from a final order sustaining a demurrer to the appellants’ complaint, for failute to state a cause of action. The key question is whether the property description in the 1954 deed by which the appellants acquired their land must be said as a matter of law to have conveyed no interest whatever in land lying within the boundaries of the railroad right-of-way. Inasmuch as we have concluded that such a rigid interpretation of the deed is not necessarily the proper construction of its language, we hold that the demurrer to the complaint should have been overruled.
According to the complaint, with its exhibits, in 1881 certain landowners executed a right-of-way deed to the Frisco Railroad’s predecessor, “for the purpose of constructing and operating said Railway and the necessary conveniences and uses thereto attaining.” The easement appears to have been 300 feet wide for a distance of 1,500 feet and 100 feet wide for the remaining length of the grantors’ 80-acre tract. The deed provided that if the grantee ceased to use the land for the specified purposes the title would revert to the grantors or their heirs or assigns.
Apparently both the right-of-way and contiguous lands were thereafter platted as lots and blocks within the city of Fayetteville. In 1954 the appellants purchased lots that were abutted at the rear by the railroad right-of-way. The warranty deed to the appellants described the property as a certain Lot 12 and part of Lot 11, “except that part of it in the Frisco Railroad right-of-way.” The railroad company was then still claiming the right-of-way.
In 1968 the Frisco abandoned part of its right-of-way and by quitclaim deed conveyed it to the appellee Pearson. (The deed to Pearson also included Lot 16, but in their brief the appellants have relinquished the claim which their complaint originally asserted to that lot.) We are not now concerned about whether the Frisco’s deed actually conveyed title to Pearson, for the appellants must recover on the strength of their own title.
The disputed question of law centers upon the quoted language in the appellants’ deed, “except that part of it in the Frisco Railroad right-of-way. ” At the outset it is essential to bear in mind the sound distinction, recognized by our decisions, between a description purporting to stop at the edge of an abandoned right-of-way and one purporting to stop at the edge of a right-of-way still in use. We considered the former type of description in Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636 (1951), where the grantor’s deed to the appellees contained a metes and bounds description extending to the edge of an abandoned railroad right-of-way and thence along that right-of-way for a given distance. In reluctantly holding that the grant did not extend to the center of the abandoned strip we said:
The appellees insist that the legal effect of their deed is to convey to the center line of the abandoned right-of-way, and several cases from other jurisdictions are cited to support this contention. In practical effect there is much to be said in favor of this view, since the opposite rule often leaves in the grantor the ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way, street, alley, etc.
The appellants rely chiefly upon Fordyce v. Hampton, 179 Ark. 705, 17 S.W. 2d 869 [1929], and with some reluctance we concede that case to be controlling. There we held that although a conveyance of land bounded by an alley is usually presumed to carry title to the center line, the presumption does not arise when the alley has been vacated or abandoned. In the opinion we recognized the fact that two lines of authority exist and chose the rule that the grantee takes to the center of an abandoned easement only when the grantor explicitly expresses that intention. Those of us who are joining in this opinion do . not think the doctrine of the Fordyce case to be a desirable one, since a grantor does not ordinarily intend to retain title to an abandoned right-of-way that is of little practical value. But the Fordyce case laid down a rule of property .... If the rule is to be changed it should be done by legislation that operates prospectively rather than by judicial decision that is retroactive.
The rule, however, is — and should be — entirely different when the right-of-way is still in use. In that situation the conveyance extends to the center of the right-of-way unless a contrary intention is clearly stated. Thompson explains the sound reasons for the rule:
The intent to convey to the middle line of the highway arises from the presumption that the adjoining owners originally furnished the land for a right-of-way in equal proportions; and from the further presumption that such owner, in selling land bounded upon the highway, intended to sell to the center line of the street, and not to retain a narrow strip which could hardly be of use or value except to the owner of the adjoining land. The public policy of discouraging separate ownership of narrow strips of land is the basis for the rule.
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The presumption that a deed carries to the center of an abutting road applies to private as well as public roads. It also applies to railroad rights-of-way.
Thompson on Real Property, § 3068 (Repl., 1962).
As Thompson indicates, the rule favoring an extension of the conveyance to the center line of the right-of-way, “unless a contrary intention is clearly stated, ” rests upon two strong practical circumstances in its favor. First, that interpretation gives effect to what is almost certainly the intention of the parties. Among scores of similar statements the following comments upon the element of intention are typical:
In Barker v. Lashbrook, 128 Kan. 595, 279 P. 12 (1929), the court sensibly observed that “it is difficult to conclude that businesslike people, able to own, sell, and buy land, could reasonably have had in mind, at the time of the sale and purchase, the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency.”
In Brown v. Weare, 348 Mo. 135, 152 S.W. 2d 649 (1941), it was said: “We cannot conceive that it was the intention of the grantor to retain the title to the servient estate in the strip over which the right of way ran while disposing of the abutting land. Furthermore, as pointed out in Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379, the term ‘ “right of way” has two meanings in railroad parlance — the strip of land upon which the track is laid — and the legal right to use such strip.’ See also, Tiffany Real Property, 3d. Ed., § 772. The grantor must have intended to except the use only.”
Again, the principle was by no means overstated in Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir.
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George Rose Smith, Justice.
The appellants, husband and wife, filed this suit to quiet their title to part of a recently abandoned railroad right-of-way and to cancel a deed by which the railway company had purportedly conveyed the disputed part of the right-of-way to the appellee Pearson. This appeal is from a final order sustaining a demurrer to the appellants’ complaint, for failute to state a cause of action. The key question is whether the property description in the 1954 deed by which the appellants acquired their land must be said as a matter of law to have conveyed no interest whatever in land lying within the boundaries of the railroad right-of-way. Inasmuch as we have concluded that such a rigid interpretation of the deed is not necessarily the proper construction of its language, we hold that the demurrer to the complaint should have been overruled.
According to the complaint, with its exhibits, in 1881 certain landowners executed a right-of-way deed to the Frisco Railroad’s predecessor, “for the purpose of constructing and operating said Railway and the necessary conveniences and uses thereto attaining.” The easement appears to have been 300 feet wide for a distance of 1,500 feet and 100 feet wide for the remaining length of the grantors’ 80-acre tract. The deed provided that if the grantee ceased to use the land for the specified purposes the title would revert to the grantors or their heirs or assigns.
Apparently both the right-of-way and contiguous lands were thereafter platted as lots and blocks within the city of Fayetteville. In 1954 the appellants purchased lots that were abutted at the rear by the railroad right-of-way. The warranty deed to the appellants described the property as a certain Lot 12 and part of Lot 11, “except that part of it in the Frisco Railroad right-of-way.” The railroad company was then still claiming the right-of-way.
In 1968 the Frisco abandoned part of its right-of-way and by quitclaim deed conveyed it to the appellee Pearson. (The deed to Pearson also included Lot 16, but in their brief the appellants have relinquished the claim which their complaint originally asserted to that lot.) We are not now concerned about whether the Frisco’s deed actually conveyed title to Pearson, for the appellants must recover on the strength of their own title.
The disputed question of law centers upon the quoted language in the appellants’ deed, “except that part of it in the Frisco Railroad right-of-way. ” At the outset it is essential to bear in mind the sound distinction, recognized by our decisions, between a description purporting to stop at the edge of an abandoned right-of-way and one purporting to stop at the edge of a right-of-way still in use. We considered the former type of description in Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636 (1951), where the grantor’s deed to the appellees contained a metes and bounds description extending to the edge of an abandoned railroad right-of-way and thence along that right-of-way for a given distance. In reluctantly holding that the grant did not extend to the center of the abandoned strip we said:
The appellees insist that the legal effect of their deed is to convey to the center line of the abandoned right-of-way, and several cases from other jurisdictions are cited to support this contention. In practical effect there is much to be said in favor of this view, since the opposite rule often leaves in the grantor the ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way, street, alley, etc.
The appellants rely chiefly upon Fordyce v. Hampton, 179 Ark. 705, 17 S.W. 2d 869 [1929], and with some reluctance we concede that case to be controlling. There we held that although a conveyance of land bounded by an alley is usually presumed to carry title to the center line, the presumption does not arise when the alley has been vacated or abandoned. In the opinion we recognized the fact that two lines of authority exist and chose the rule that the grantee takes to the center of an abandoned easement only when the grantor explicitly expresses that intention. Those of us who are joining in this opinion do . not think the doctrine of the Fordyce case to be a desirable one, since a grantor does not ordinarily intend to retain title to an abandoned right-of-way that is of little practical value. But the Fordyce case laid down a rule of property .... If the rule is to be changed it should be done by legislation that operates prospectively rather than by judicial decision that is retroactive.
The rule, however, is — and should be — entirely different when the right-of-way is still in use. In that situation the conveyance extends to the center of the right-of-way unless a contrary intention is clearly stated. Thompson explains the sound reasons for the rule:
The intent to convey to the middle line of the highway arises from the presumption that the adjoining owners originally furnished the land for a right-of-way in equal proportions; and from the further presumption that such owner, in selling land bounded upon the highway, intended to sell to the center line of the street, and not to retain a narrow strip which could hardly be of use or value except to the owner of the adjoining land. The public policy of discouraging separate ownership of narrow strips of land is the basis for the rule.
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The presumption that a deed carries to the center of an abutting road applies to private as well as public roads. It also applies to railroad rights-of-way.
Thompson on Real Property, § 3068 (Repl., 1962).
As Thompson indicates, the rule favoring an extension of the conveyance to the center line of the right-of-way, “unless a contrary intention is clearly stated, ” rests upon two strong practical circumstances in its favor. First, that interpretation gives effect to what is almost certainly the intention of the parties. Among scores of similar statements the following comments upon the element of intention are typical:
In Barker v. Lashbrook, 128 Kan. 595, 279 P. 12 (1929), the court sensibly observed that “it is difficult to conclude that businesslike people, able to own, sell, and buy land, could reasonably have had in mind, at the time of the sale and purchase, the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency.”
In Brown v. Weare, 348 Mo. 135, 152 S.W. 2d 649 (1941), it was said: “We cannot conceive that it was the intention of the grantor to retain the title to the servient estate in the strip over which the right of way ran while disposing of the abutting land. Furthermore, as pointed out in Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379, the term ‘ “right of way” has two meanings in railroad parlance — the strip of land upon which the track is laid — and the legal right to use such strip.’ See also, Tiffany Real Property, 3d. Ed., § 772. The grantor must have intended to except the use only.”
Again, the principle was by no means overstated in Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir. 1939), where the court declared: “If construed as appellees would have it, a result both unreasonable and clearly unintended would have been produced.For it is inconceivable that Gregory, plaintiffs’ grantee, would have bought a tract of land split into two tracts by a small narrow strip which the Canal Company was not only authorized to use as a lateral, but if appellees are right, appellees would be entitled, under the restrictions in the Canal deed, to close up and occupy and thus cut appellant’s land in two.
“If construed as appellant contends it should be, every part of the deed would be harmonized and reconciled, and a result would be produced both reasonable and without doubt, in accordance with what the parties to the deed intended.”
Secondly, as Thompson, supra, says, there is a sound public policy discouraging the separate ownership of narrow strips of land. The Kansas court, after reviewing the development of the established rule at common law, aptly summarized the considerations of public policy: “Experience revealed that separate ownership of long narrow strips of land distinct from the territory adjoining on each side, was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.” Bowers v. Atchison, Topeka, & S.F. Ry., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228 (1925).
We recognized and applied the rule in McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444 (1937). There the description in a deed ran in a southerly direction “to a street; thence in a westerly direction along the north line of said street” for a given distance. After recognizing the rule that a conveyance describing land as being bounded by a street or highway is generally held to indicate an intention to convey to the center thereof, we said: “When, in 1926, the appellant McGee purchased lot 8, so situated, and so described in the deed by specific measurements, projecting appellant’s south line to the north line of Nance avenue, she nevertheless acquired a fee to the center of Nance avenue. This, for the reason that there were no expressions showing an intent to limit the grant in a manner contrary to the general rule of construction. ” (Italics supplied.)
In the case at hand the chancellor reasoned that the pivotal language in the deed, “except that part of [the described lots] in the Frisco Railroad right-of-way,” could not be interpreted in any way except as an exclusion of the land itself from the deed. There are two answers to that point of view. First, a reference to the right-of-way can refer to the easement only, rather than to the entire fee simple. See Thompson, supra, § 3069. Secondly, such language may be intended to except the easement from the grantor’s warranty rather than to reserve the entire servient estate to the grantor. Thompson, § 3094. In this connection we may observe that the language of the granting clause in the appellants’ deed, “do hereby grant, bargain and, sell,” constitutes an express warranty in Arkansas. Ark. Stat. Ann. § 50-401 (Repl. 1971).
Judge William Howard Taft, in a statement that has been quoted many times, explained why the courts go to extreme lengths in construing narrowly such clauses as the one now in controversy: “The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard then the older cases.” Paine v. Consumers’ Forwarding & Storage Co., 71 F. 626 (6th Cir. 1895).
Yet there is nothing unfair about such a strict interpretation of the language, because the draftsman of the deed has been put on notice by scores of cases that he must express his intention to reserve the servient estate so clearly that no reasonable construction can avoid his meaning. In the case at bar the draftsmen excepted that part of the lots “in” the railroad right-of-way. That language appears to be no stronger than the explicit metes and bounds description which we construed in McGee v. Swearengen, supra, yet we held the McGee conveyance to extend to the center of the street. Similarly, in Kassner v. Alexander Drug Co., 194 Okla. 36, 147 P. 2d 979 (1943), the deed described only the north 120 feet of two lots, but the court held that the conveyance extended to the center of an abutting railroad right-of-way on the south. Again, in the Shell case, supra, the grantor described a tract as containing 162 acres, “except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.” Despite the grantor’s arguable intent to convey only 156.4 acres, the court held that his deed conveyed the entire 162 acres, subject to the rights-of-way.
There is no end to the examples that might be found in the authorities (with a few contrary cases) to illustrate the rule that the grantor must clearly and unmistakably state his intention to reserve the servient estate underlying the right-of-way. We find it hard to believe that the draftsman of the deed to these appellants, had he been familiar with the law and had he meant to effect the reservation contended for by the appellee, would have contented himself with the language that he selected. It would have been so much simpler for him to have explicitly stated that the grantors were reserving to themselves the entire servient estate within the boundaries of the railroad right-of-way. Any number of methods of similarly expressing affirmatively the pivotal intention to reserve an interest come readily to mind.
Finally, the case reaches us on demurrer to the complaint. When the description in a deed is doubtful the court may put itself in the position of the parties and interpret the language used in the light of attendant circumstances. Schweitzer v. Crandell, 172 Ark. 667, 291 S.W. 68 (1927). Although we think the better construction of the deed now in controversy to be that argued for by the appellants, we ought not to foreclose the possibility that extrinsic proof may be of assistance. The record does not disclose what reservations or exceptions were contained in the chain of title between the execution of the right-of-way deed to the railway company in 1881 and the execution of the warranty deed to the appellants in 1954. We do not know how much of Lots 11 and 12 were subject to the Frisco’s easement. Although the Frisco’s deed to the appellee shows that the company’s “main track” is still upon that part of the original easement that is contiguous to the land purportedly conveyed by the Frisco to the appellee, we have no idea whether that fact indicates that the various references to the “right-of-way” may have had some reference to the strip occupied by the tracks rather than to land susceptible of being used for other railway purposes. All the foregoing questions relate to evidentiary matters not required to be included in the appellants’ complaint. It is clear that the case is not one to be decided upon demurrer, upon the sole basis of a 12-word clause in the appellants’ deed and without regard to what may prove to be enlightening extrinsic proof.
Reversed, the demurrer to be overruled.
Fogleman, Jones and Holt, JJ., dissent.