Conway v. Crowell Land & Mineral Corp.

635 So. 2d 544, 93 La.App. 3 Cir. 1158, 1994 La. App. LEXIS 923, 1994 WL 113148
CourtLouisiana Court of Appeal
DecidedApril 6, 1994
Docket93-1158
StatusPublished
Cited by9 cases

This text of 635 So. 2d 544 (Conway v. Crowell Land & Mineral Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conway v. Crowell Land & Mineral Corp., 635 So. 2d 544, 93 La.App. 3 Cir. 1158, 1994 La. App. LEXIS 923, 1994 WL 113148 (La. Ct. App. 1994).

Opinion

635 So.2d 544 (1994)

Bryant W. CONWAY, et al., Plaintiff-Appellant,
v.
CROWELL LAND & MINERAL CORP., Defendant-Appellee.

No. 93-1158.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1994.

*545 W. Bernard Kramer, Donald Charles Theriot, for Bryant W. Conway et al.

Richard B. Crowell, for Crowell Land & Mineral Corp.

Before KNOLL, COOKS and WOODARD, JJ.

WOODARD, Judge.

This lawsuit arises out of a dispute of the ownership of three tracts of immovable property located in Rapides Parish, Louisiana.

FACTS

This property dispute involves three tracts of immovable property situated in Rapides Parish, Louisiana to wit:

*546

Plaintiffs, Mr. Bryant W. Conway and Mrs. Lynn Martin Conway, initiated this suit as a possessory action seeking to have recognized their rights to the possession of Tract 3 and the 100 foot wide railroad tram traversing Tract 1. Plaintiffs also sought an order maintaining them in possession. The defendant, Crowell Land and Mineral Corporation, answered the suit, asserting ownership of Tract 3 and the railroad tram as it traverses Tract 1. Thus, this action was converted into a petitory action, pursuant to La.Code Civ.P. art. 3657. Subsequently, the plaintiffs amended their petition seeking to have the court fix the boundary lines between the properties owned by the parties.

The trial court recognized the plaintiffs as owners of Tracts 1 and 2, containing 99.743 acres, according to the survey by Willis Engineering. Further, the trial court adjudicated to defendant the 100 foot wide railroad tram traversing Tract 1, containing 3.7 acres in full ownership, and ownership of Tract 3, pursuant to the public records doctrine, containing 20.1 acres, according to the survey by Willis Engineering and set the boundaries of the properties owned by the parties, according to the Willis Engineering survey.

The Conways appeal and assert the following assignments of error: (1) trial court's finding that defendant acquired full ownership of the 100 foot wide railroad tram was manifestly erroneous; (2) trial court's use of the Willis plat to set the boundaries of the properties owned by the parties was an abuse of discretion; and (3) trial court's finding that defendant was the owner of Tract 3 pursuant to the public records doctrine was manifestly erroneous.

100 FOOT WIDE RAILROAD TRAM TRAVERSING TRACT 1

On May 31, 1913, Crowell and Spencer Lumber Company, Ltd., who is the ancestor in title to the defendant, and Mr. W.H. Whatley, who is the ancestor in title to the plaintiffs, executed two deeds. In the first deed, Crowell sold Tract 2 to Whatley for the price of $1.00 and other consideration that would be specified in the second deed (the Whatley deed). In the Whatley deed, Whatley executed to Crowell a 100 foot wide strip across Tract 1. The Whatley deed stipulated a consideration of $500.00 in cash and the 20 acres of land in the first deed.

The issue concerning Tract 1 is whether the Whatley deed constituted a transfer of servitude of right of way or whether the deed effected a sale of ownership translative of title. Louisiana jurisprudence has held that a railroad "right of way" *547 may be granted by either the fee title or merely a servitude of right of way. Whether the one or the other is meant in any particular instrument must be gathered from the instrument as a whole. John T. Moore Planting Co. v. Morgan's Louisiana and T.R. & S.S. Co., 126 La. 840, 53 So. 22 (1910); Arkansas Imp. Co. v. Kansas City Southern Ry. Co., 181 So. 441 (La.1938). Notwithstanding, extrinsic evidence may be considered in construing such an instrument. Arkansas Imp. Co., supra.

Porter v. Acadia-Vermilion Irr. Co., Inc., 479 So.2d 1003 (La.App. 3d Cir.1985), sets forth a multi-factor test for deciding the issue of whether ownership or a servitude has been conveyed; namely:

1. The amount of consideration recited in the deed.
2. Whether specific measurement was given to the "right of way."
3. Whether the parties claiming the fee title had an actual need for such title.
4. To whom the property was assessed and who paid the taxes on the property.
5. Whether the grant was made for a specific purpose.
6. Whether the grant was made "in perpetuity" or "forever."
7. How the parties to the conveyance or their heirs and assigns have treated the property.

The first factor of the Porter test is the adequacy of the consideration recited in the deed. At the time of the execution of the Whatley deed, Crowell (ancestor in title of defendant) conveyed to Whatley (ancestor in title of plaintiffs) a tract containing 20 acres (Tract 2) and $500.00 in cash in consideration of the 100 foot wide strip across Tract 1. This substantial consideration was not merely perfunctory, it was in proportion to the value of the land being sold. Thus, the consideration stated in the present case is indicative of an intent to convey fee title to the railroad tram. Porter, supra.

The next factor to consider is whether a specific measurement was given to the "right of way." In the present case, the disputed strip is described in the Whatley deed as follows:

A Right-of-Way, for railroad purposes, One Hundred Feet Wide, over and across the North-Half of the North-West Quarter, Section Thirteen, Township One, South of Range Two, West of the Louisiana Meridian, in the Parish of Rapides, Louisiana—the said Right-of-Way to be located as now staked out by the engineer, and entering the North-West Quarter of North-West Quarter of Section from the North, and proceeding in a South-Easterly direction through the said North West Quarter of the North-West Quarter, and entering the North-East Quarter of the North-West Quarter from the West and proceeding in a Southeasterly direction through the said North-East Quarter of the North-West Quarter, and going out of the same on the South side.

Since the disputed strip is described with exactness, this is indicative of an intent to convey fee title to the railroad tram.

Factors three and five deal with whether the party claiming ownership had an actual need for title and whether the grant was made for a specific purpose. This grant was for the specific purpose of constructing a railroad. Thus, defendant did not need the title to this property to construct a railroad on it. These are the only two factors that lend support to finding the Whatley deed merely granted a servitude.

Factor four, concerning to whom the property was assessed and who pays taxes on the property, is addressed by the Rapides Parish Assessor's records. The 100 foot wide railroad tram (3.7 acres on Tract 1) is assessed to defendant, and it has paid taxes on the railroad tram from 1914 through the present. Thus, factor four is indicative of an intent to convey fee title to the railroad tram.

The sixth factor to consider is whether the grant was made "in perpetuity" or "forever." A deed stating that the land is conveyed "forever" indicates that the parties intend to convey ownership; while a deed stating that the conveyance is "in perpetuity" is merely a grant of a servitude. Meaux v. Southdown Lands, Inc., 361 So.2d 974 (La. App. 3d Cir.1978). The deed in the present *548 case conveys the land to Crowell and Spencer Lumber Company, Ltd., defendant's ancestor in title, "forever," and thus indicates a fee title transfer.

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Cite This Page — Counsel Stack

Bluebook (online)
635 So. 2d 544, 93 La.App. 3 Cir. 1158, 1994 La. App. LEXIS 923, 1994 WL 113148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conway-v-crowell-land-mineral-corp-lactapp-1994.