Marland v. Gillespie

1934 OK 158, 33 P.2d 207, 168 Okla. 376, 1934 Okla. LEXIS 182

• Court: Supreme Court of Oklahoma
• Decided: March 13, 1934
• Docket: 21180
• Status: Published

Opinions

BAYLESS, J.

E. W. Marland, plaintiff below; appeals from a judgment of the district court of Kay county, Okla., in favor of the defendant below, Minnie Gillespie, quieting her title to certain real estate. The parties will be referred to herein as plaintiff and defendant, respectively, as they appeared in the trial court.

There is no dispute over the actual events out of which this litigation arose. The controversy revolves around a determination of the legal rights of the parties now that such events have taken place.

Hans C. R. Brodboll acquired title to the northeast quarter of section 27, T. 26 N., R. 2 E., in what is now Kay county, Okla., from the United States government by a patent dated February 18, 1898. He executed a conveyance of a strip of this land along the north side of this quarter section to the Southern Kansas Railway Company on March 24, 1898. On March 5, 1910, Brodboll and wife filed for record a plot of blocks 17, 18, 19, and 20 to Brodboll, an addition to Ponca City. The plat of this addition shows that all of the land embraced within the platted addition lies south of but adjacent to said strip of land conveyed to the railway company. Brodboll and wife deeded lot 46, block 19, of said addition to one Stanley in the year 1910. The title to this lot thereafter passed through various hands and finally vested in the defendant by a decree of the district court of Kay county, Okla., on February 5, 1927. This lot is contiguous to the strip of land conveyed to the railway company. The strip of land conveyed to the railway company was used by said railway company and its corporate successor, Atchison, Topeka & Santa Fe Railway Company, for a spur track location until sometime in the year 1924, when it was completely aban-' cloned for all railroad use. Plaintiff took a quitclaim deed from said railway company in 1925, and a quitclaim deed from the sole heir of Brodboll in 1924. He filed this suit on the 2nd day of February, 1928, claiming the title and right of possession of this property. This was disputed by the defendant, who claimed that, as abutting landowner, the portion of said land adjacent to her lot accreted to her upon abandonment by the railway company. Her claim rests upon the argument that the title conveyed by Brodboll to the railway company1 was less than that of a fee simple, and that, upon abandonment of the property for the use for which it was conveyed, the title reverted; and that the reversionary interest was possessed by her as the adjacent landowner.

The conveyance from Brodboll to the railway company reads:

“Warranty Deed.

“This indenture, made this 24th day of March, A. D., 1898, between Hans C. R. Brodboll, a single man, of Kay county, in the Territory of Oklahoma, party of the first part, and the Southern Kansas Railway Company, a corporation, party of the second part.

“Witnesseth: That said party of the first part in consideration of the sum of one thousand and no/100 dollars, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, its successors, heirs and assigns, all of the following real estate, situated in the county of Kay and Territory of Oklahoma, towit:

“A strip of land 50 feet in width off the north side of the northeast quarter (%) of section number twenty-seven (271) in township number twenty-six (26) north of range two (2) east of the Indian Meridian, and lying contiguously and south of the public highway on the north side of said quarter section. The same being for a right of way for a railroad track as the survey thereof is now located and said grantee agrees to construct two grade crossings over its track for the use of grantor, and proper water ways under its track where there is heavy fills.

“To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, forever.

“And said Hans C. R. Brodboll, for himself, his heirs, executors or administrators does hereby covenant, promise and agree to and with the said party of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple, of and in all and singular the above granted and described premises, with appurtenances; that the same are free, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever; and that he will warrant and forever defend the same unto the said party of the second part, its successors and assigns against said party of the first part, his heirs and all and every person or persons whomsoever, lawfully claiming or to claim the same.”

The defendant contends, in effect, that the language of the deed is in itself a limitation upon the estate conveyed; but, if it is not, there is no statutory power for a railway company to acquire a fee-simple title to real estate in Oklahoma.

We will direct our attention to the second of these contentions first. In determining whether there is a lack of authority on the part of a 'railway company to acquire the fee-simple title to real estate purchased for right of way, we must examine the Constitution and statutes of this state.

Section 13713, O. S. 1931 (sec. 2, art. 22, Okla. Const.), reads:

“* * s= Nor shall any corporation doing business in this state buy, acquire, trade, or deal in real estate for any purpose except such as may be located in such towns and cities and as additions to such towns and cities, and further except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed. * * *”

This is a limitation, not upon the quality of the estate, but the quantity of land to be owned, which quantity is measured by the necessity of use considering the purposes for which the corporation is chartered. Section 13436, O. S. 1931 (sec. 24, art. 2, Okla. Const.), reads in part:

“* * * ipjjg fee ;an(j taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. * * *”

The framers of our Constitution, while conferring the power of eminent domain upon common carriers, had in mind the inconvenience oftentimes done to a landowner by the exercise of this power to acquire rights of way over his land without his consent. It intended that common carriers exercising such power, that is, taking a right of way without the consent of the owner of the land, should only acquire the right of use thereof or an easement, so to speak, which ceased upon abandonment. By this proviso, recognition was given to the fact that inconvenience and the disturbance of the possession and use of one’s land by another without his consent were elements of damage or compensation in eminent domain, which, if legal, might nevertheless be inadequately provided for. By the same token the framers of our Constitution recognized that one who voluntarily conveyed his property for such a purpose for a consideration presumably voluntarily agreed upon, must have been thought to have demanded and received compensation for the resulting inconvenience, and they did not extend this limitation to such voluntary conveyances.

Section 11913, O. S. 1931, enumerates the powers conveyed upon railway corporations, and subdivision 3 thereof reads:

“Third: To acquire under the provisions of this article, or by purchase, all such real estate and other property either within or without this state, as may be necessary for construction, maintenance, and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when not required for railroad uses, and no longer necessary to its use.”

Section 11928, O. S. 1931, to the same purpose, reads as follows:

“Every railroad corporation incorporated under this article and any railroad corporation authorized to construct, operate or maintain a railroad within this state, has power and is authorized to enter upon any land for the purpose of examining and surveying its railroad, and to take, hold and appropriate so much real estate as may be necessary for the location, construction' and convenient use of its road, including all necessary grounds for buildings, stations, workshops, depots, machine-shops, switches, side-tracks, turn-tables, snow defences and water stations; all material for the construction of such road and its appurtenances, and the right of way over adjacent land sufficient to enable such corporation to construct and repair its road and the right to conduct water to its water stations, and to construct and maintain proper drains, and may obtain the right to such real estate by purchase or condemnation in the manner provided by the law.”

Section 11930, O. S. 1931, also to the same purpose, reads:

“Any railroad corporation may purchase and use real property for a price to be agreed upon with the owners thereof; or the damages to be paid by such corporation for any real property taken as aforesaid, when not agreed upon, shall be ascertained and determined as hereinafter provided.”

We find no evidence in our statutes of an intention on the part of our Legislature to limit estates in land acquired for rights of way by voluntary conveyances unqualified by their terms.

We do find that, by section 9698, O. S. 1931, our Legislature has directed:

“Every estate in land which shall be granted, conveyed or demised by deed or will, shall be deemed an estate in fee simple and of inheritance, unless limited by express words.”

This is without limitation or reservation as applied to unqualified voluntary conveyances to common carriers for any legal corporate use.

We find support in our construction of the power of railway corporations to acquire fee-simple title to real estate for railway purposes in this state in the opinions of other courts construing the parent and the same statutes. The statutes above quoted were adopted by us from South Dakota. We find that the Supreme Court of South Dakota considered and construed these statutes, and while this was after we had adopted them, nevertheless the discussion in that opinion is sound and highly persuasive. We refer to Sherman v. Sherman, 23 S. D. 486, 122 N. W. 439, and the discussion therein contained. An almost identical question was presented in the case of Gilbert v. Missouri, K. & T. Ry. Co., 185 Fed. 102, which arose in the Western District of Oklahoma and was decided by the Circuit Court of Appeals for the 8th Circuit, and we quote the following from said opinion:

“The deed in question is one of general warranty and on its face conveys a title in fee. It is conceded that the law granting the right to railroad corporations to hold and acquire real estate in Oklahoma, in force at the date of the deed herein mentioned was section 1022, Wilson’s Rev. & Ann. Stat, which is in the following language :

“ ‘To acquire under the provisions of this article, or by purchase, all such real estate and other property either within or without this territory, as may be necessary for the construction, maintenance and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation ; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when not required for railroad uses, and no longer necessary to its use.’

“This law hy necessary implication confers the power upon railroad corporations to take a fee title to land purchased for right of way or other railroad purposes. Counsel for plaintiffs in error seem to think that when it is once established that the land in question was conveyed for right of way and railroad purposes only, their ease is made; but this fact which is a conceded one in this ease by no means determines the quantity of the estate conveyed. We thus have power in the railroad company to take an estate in fee when it acquires land by purchase for railroad purposes, and we have a deed of conveyance unambiguous in terms which on its face conveys an estate in fee. This being so, we are not at liberty to go outside of the deed to ascertain the quantity of the estate conveyed thereby. ' In the case of Sherman v. Sherman, 23 S. D. 486, 122 N. W. 439, the Supreme Court of South Dakota had under consideration a statute of that state which, for the purposes of this ease, is identical with the Oklahoma law above quoted. In this case certain parties had conveyed land in South Dakota to a railroad company expressed in the instrument of conveyance itself to be for railroad purposes and no other. The land was transferred to another railroad company and leased by the latter for warehouse purposes. The former owners brought an action to quiet title and for possession. The court, however, denied the relief. The Supreme Court of South Dakota in disposing of the case used the following language:

“ ‘It seems to be quite evident that the legislative mind intended that a fee «title should pass to the railway company, and that there is no way of escaping this conclusion. It is plainly apparent from the reading of the statute that the title to be acquired under these provisions is coextensive and correlative with the .power of holding and disposition of the land so acquired. The plain intent of the legislative assembly was that a complete title should be vested in the company.

“ ‘The very wording and form of this grant in question are such as to make it clear that plaintiffs intended to convey and the company to acquire the full title contemplated by this statute — a fee-simple title.’

“Section 907 of Wilson’s Rev. & Ann. Stat. of Oklahoma provides as follows:

“ ‘Every estate in land which shall be granted, conveyed or demised by deed or will, shall be deemed an estate in fee simple and of inheritance unless limited by express words.’

“We have examined the cases cited by counsel for plaintiffs in error, but do not think they are persuasive, as they are decisions either where there were no statutes like the one in Oklahoma, or where the statute or deed of conveyance was different than the one in question in this case.

“We simply decide that, conceding the conveyance of the land in question was for railroad purposes only, still the deed that was executed for the purpose of conveying the land, when construed with reference to the laws of Oklahoma, conveyed an estate in fee.”

The defendant has cited numerous cases apparently announcing a contrary view, and among these cases is that of Santa Fe, L, & E. R. Co. v. Laune, 67 Okla. 75, 168 P. 1022, which cites and apparently relies upon the case of Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208, 1 L. R. A. (N. S.) 806. Other Kansas cases, including Midland Valley R. Co. v. Corn, 21 F. (2d) 96, are cited.

We have considered all of these Kansas cases. In each of them the court has endeavored to construe the conveyance either from its language or the proven intent of the parties, and from a statutory standpoint. In, our (opinion the discussion of the courts of Kansas as to the terms of the conveyance or the proven intent of the parties is dictum and immaterial. We find that the statutes of Kansas enumerating the powers of common carriers to acquire an estate in real estate to give them the power only:

“* * * to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance, and accommodation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance, and accommodation of its railway.” Rev. Stat. Kan. 1923, sec. 66-501.

We, therefore, find in the Kansas statutes a limitation not found in the Oklahoma statutes, which must control the estate acquired in Kansas in any event, regardless of the language of the conveyance or the proven intent of the parties. These cases cannot be authority in Oklahoma.

Referring to the case of Santa Fe, L. & E. R. Co. v. Laune, supra, we find that this court apparently erroneously relied upon these earlier Kansas eases as authority for its holding in all respects. We find the following language in the syllabus of that case:

“An instrument which is in form a general warranty deed, conveying a strip of land to defendant company for a right of way for its railroad, under the facts in this ease, did not vest an absolute title in llie railroad company; but the interest conveyed. is limited by the use for which the land is acquired, and, when that rise is abandoned, the property will revert to the original owners.”

We find no error in the rule of law announced in the first part of that syllabus as applied to the facts in that case. Not only was the intent to limit the estate conveyed found to be expressed in the conveyance itself, but in addition the plaintiff proved that the representations and statements made by the grantee to the grantor limited the estate conveyed to the purpose for which it was acquired, and that such purpose to use the estate acquired to that limited purpose only formed a part of the consideration for the conveyfancje. ''

In the case of Okla. Ry. Co. v. Severns Paving Co., 67 Okla. 206, 170 P. 216, this court in construing a dedication to the railway company, in the following language, to wit:

“Said strips of land are set aside for the exclusive use of and dedicated to the Oklahoma City & Suburban Railway, its successors and assigns, with like effect as though deeded and conveyed to said company in fee simple by separate deed”

—said: ■

“The railway company here holds an entirely different estate. Its right is not merely. an intangible privilege or an easement, but under the terms of the dedication is a fee-simple title. Under the provisions of section 511, Rev. Laws 1910, the terms of the dedication are to all intents and purposes a general warranty and sufficient conveyance to vest the fee simple of the lands described therein. Under section 1175 of this statute every estate in land conveyed by deed shall be deemed an estate in fee simple, unless limited by express words. Under section 1382 of this statute authority is given to the railway company to acquire land and to sell the samé when no longer necessary to its use * * «”

—and quotes with approval from the cases of M., K. & T. Ry. Co. v. City of Tulsa, 45 Okla. 382, 145 P. 398, and Gilbert v. M., K. & T. Ry. Co., 185 Fed. 102, 107 C. C. A. 320. Continuing, the court said:

“The dominion and control of the strip of land in question here is not in the city authorities. If the street should be vacated by the city authorities, this private right of way would not revert to the abutting owners, but would continue to be the property of the railway company. The company took the fee from the original grantors by the dedication before the abutting owners acquired their titles.”

The Supreme Court of the United States, in considering this case on appeal, 251 U. S. 104, 64 L. Ed. 168, wherein it was contended that the rule as laid down in Santa Fe, L. & E. R. Co. v. Laune, supra, was applicable, said:

“The Supreme Court of the state (Oklahoma Ry. Co. v. Severns Paving Co., 67 Okla. 206, 10 A. L. R. 157, 170 P. 216) declared : ‘The fee title to the strip of land in question here appears to be in the railway company. * * * Its right is not merely an intangible privilege or an easement, but, under the terms of the dedication, is a fee-simple title. * * * The dominion and control of the strip of land in question here is not in the city authorities. If the street should be vacated by the city authorities, this private right of .way would not revert to the abutting owners, but would continue to be the property of the railway company. The company took the fee from the original grantors by the dedication before the abutting owners acquired their titles.’ ”

The reason for the rule in Santa Fe, L. & E. R. Co. v. Laune, supra, can be justified upon the theory that this right of way was secured by and through fraudulent misrepresentations, and by the further fact that no railroad was ever established and the property was never at any time used as a right of way. However, in so far as the language of that case attempts to lay down a general rule that the estate voluntarily conveyed to a railroad company is limited by the use for which the land is acquired, the same is erroneous, and is hereby disapproved and overruled. Such a limitation upon an estate must be found in the express terms of the conveyance, or from the proven intent of the parties.

We, therefore, answer the first contention by saying that there is no constitutional or statutory limitation upon the quality of estate acquired by a common carrier, by a voluntary conveyance unqualified in its terms, for the necessary and proper carrying on of the business for which the corporation was chartered.

We next direct our attention to the first contention.

Adverting to what we have previously said, we must see whether there is evidence extraneous to the conveyance of an intent to limit the estate conveyed to the use for which it was acquired.

The defendant below made no effort to prove by evidence extraneous to the deed that the parties intended to limit the es tate conveyed by the warranty deed herein in the manner asserted by her. We have said in Herndon v. Shawnee Nat. Bank, 105 Okla. 207, 232 P. 432, that the one asserting the limitation upon an estate conveyed has the burden of proving such limitation. We must therefore look to the terms of the conveyance for this limitation if there is any such in this case.

The description of the land conveyed by this deed is complete in one sentence. Then follows the sentence of alleged limitation, as follows:

“The same being for a right of way for a railroad track as the survey thereof is now located and said grantee agrees to construct two grade crossings over its track for the use of grantor, and proper water ways under its track where there is heavy fills.”

We are unable to see in this language any limitation upon the quality of the estate conveyed. As we see this language, it is but a convenient method of expressing, as between the grantor and grantee, certain agreements made by them for the protection of their respective lands. The grantor knew the purpose to which this strip of-land would- be put by the grantee, and as a part of the transaction made arrangements that the improvements placed thereon, or the alterations of the surface thereof, should not interfere with the flow of the waters to his detriment, nor should he be deprived of his right of ingress or egress to the north or be put to any expense in providing therefor. This agreement was embodied in the conveyance, rather than being expressed in a separate contract for that purpose.

We therefore hold that the conveyance herein does not in express words limit the estate conveyed.

Having reached this conclusion, it necessarily results that the estate conveyed was a fee-simple title, that there was no reversion, and a determination of the question of whether the defendant was the owner of the reversionary interest is unnecessary.

The cause is reversed and remanded.

RILEY, O. J., and SWINDALL, ANDREWS, OSBORN, BUSBY, and WELCH, JJ., concur. McNEILL, J., dissents.