Radetsky v. Jorgensen

202 P. 175, 70 Colo. 423, 1921 Colo. LEXIS 364

• Court: Supreme Court of Colorado
• Decided: May 2, 1921
• Docket: No. 9855
• Status: Published

Opinions

Mr. Justice Allen

delivered the opinion of the court.

This is an action in ejectment brought by George Jorgensen and Lena Jorgensen against M. S. Radetsky and others, to recover a strip of land, hereinafter described. Judgment was for plaintiffs, and the defendant Radetsky brings the cause here for review.

The plaintiff in error, one of the defendants below, claims under and rélies upon a certain deed which in 1908 had been executed and delivered by the plaintiffs to The Denver, Laramie and Northwestern Railway Company, a Wyoming corporation. The plaintiffs, defendants in error here, admit the execution and delivery of the deed in question, but claim that the land was conveyed for railroad purposes only, and having ceased to be used for such purposes, all the estate in the land had reverted to them. The main question to be determined is whether, under the admitted facts, hereinafter mentioned, the deed in question conveyed an estate in fee simple, as plaintiff in error claims, or some lesser estate, such as an easement or a terminable fee, as the defendants in error contend.

Assuming, without deciding, that it is material to the question above stated, we will first determine whether The Denver, Laramie and Northwestern Railway Company, the grantee in the deed in question, had the legal capacity to purchase and hold an estate in fee simple in the land described in the deed. It is admitted, or at least not disputed, that the land was acquired and used for a railroad right of way.

The grantee company’s charter authorized the company “to obtain, acquire, hold and use any * * * real or personal property incident to, or necessary and convenient for the operation of (its railroad) or any part thereof, by purchase, lease or otherwise.”

The statute of Wyoming, the domicile of the grantee company, is or was, as pleaded by the plaintiffs, as follows:

“Every corporation * * * has power * * * to hold, purchase and convey such real and personal estate as the purpose of the corporation may require. * * *

“The powers enumerated in the preceding section, shall vest in every corporation that shall hereafter be created, although they may not be specified in the certificate, or in the act under which it shall be incorporated, but no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated.”

The statutes of this state, with reference to the power of domestic or foreign corporations to acquire real estate, are not so materially different from the Wyoming statute as to require separate mention or discussion.

The language of the charter, and of the provisions of the Wyoming statute, as above quoted, is broad enough to authorize the taking of an estate in fee simple in lands acquired for “the purposes of the corporation.” The term “real estate” as used in the statute refers to real estate as tangible property, and not merely to an estate or interest in land. The limitation is upon the quantity of land, not upon the estate in the land. This view is in harmony with the general rule, in the law of corporations, that where a corporation is empowered to acquire real estate, without limitation in point of estate, it has the right to acquire a title in fee simple. 14A C. J. 500, note 74.

The Wyoming statute is not materially different from that considered in Gilbert v. Missouri, K. & T. Ry. Co., 185 Fed. 102, 107 C. C. A. 320, where the court said:

“This law by necessary implication confers the power upon railroad corporations to taj-te a fee title to land purchased for right of way or other railroad purposes.”

In 22 R. C. L. 860, it is said:

“It has frequently been held that a railroad may, unless prohibited by statute, acquire the fee in the right of way where the deed of conveyance is sufficient for that purpose.”

In view of the considerations above' expressed, we hold that the grantee company had the authority and capacity to acquire an estate in fee simple in lands purchased for railroad purposes. In reaching this conclusion we have not overlooked the case of Lithgow v. Pearson, 25 Colo. App. 70, 135 Pac. 759, holding that a railroad acquiring a right of way by condemnation proceedings takes and can take only a terminable fee. The fact that only an easement or a terminable fee may be acquired by the exercise of the power of eminent domain, does not preclude the acquisition of an estate in fee simple by purchase from the owner. Nye v. Taunton Branch R. Co., 113 Mass. 277; Spierling v. Ohl, 232 Ill. 581, 83 N. E. 1068, 13 Ann. Cas. 430.

The principal, and the only remaining, point to be considered is whether an estate in fee simple was conveyed to the railroad company by the deed hereinbefore mentioned.

The deed is in the form of a general warranty deed. It recites, in its granting clause, that the grantors grant, bargain, sell and convey to the grantee Railway Company, “its successors and assigns forever, all the following described lot or parcels of land, * * * to-wit:

“A strip of land one hundred feet wide of which the center line of the route and line of said railway as the same is now surveyed, staked and located, is the center, being 50 ft. each side of the center line of said route, over, across and through the following described tract of land, as said route and line of said railway passes through the same, to-wit: The north east quarter of section 24,” etc.

Then follows certain agreements on the part of the grantee with reference to maintaining conduits for water and a wagon road crossing over the land conveyed. The remainder of the deed is in every respect in the form generally used to convey an estate in, fee simple, reciting, among other things, that “all the estate, right, title, interest,” is conveyed.

In 33 Cyc. 167, the text reads as follows:

“Where there has been a grant or conveyance. of land to a railroad company, the question as to what estáte or interest is thereby acquired by the company must be determined from the intention of the parties as shown by the whole instrument, taken in connection with the railroad company’s charter or governing statutes. Thus where such appears to be the intention of the parties a fee in the land and not a mere easement will be conveyed.”

Applying the rule thus stated, we cannot arrive at any other conclusion than that an estate in fee simple was conveyed. See Carr v. Miller, (Neb.) 181 N. W. 557.

In many of the cases where a railroad company was held to have acquired merely an easement or a terminable fee, and not an estate in fee simple, in the land used for a right of way, the language of the granting clause in the deed clearly supported the conclusion, and the cases are distinguishable from the instant case. Thus in Jones v. Van Bochove, 103 Mich. 98, 61 N. W. 342, the property conveyed was described as “the right of way for a railroad,” and as a reason for holding that an easem.ent only and not a fee was conveyed, the court said:

“It does not purport to convey a strip of land 40 feet wide, etc., but the right of way over a strip 40 feet wide. Cases, undoubtedly, can be found in which the operative words of the grant relate to the land itself; but such construction cannot be given to this deed.”

In the instant case, the situation is reversed; the deed does purport to convey “a strip of land,” and not merely a right of way over a strip of land.

In some cases the conveyance recited that it was “for the uses and purposes of a railroad” and on that account it was held that a determinable fee was created. 33 Cyc. 169. That situation does not exist in the instant case.

In our opinion the deed conveyed an estate in fee simple.

The judgment is reversed, and the cause remanded with directions to enter judgment against plaintiffs and for the defendant Radetsky.

Mr. Justice Teller dissents. Mr. Chief Justice Scott not participating.