Swaby v. NORTHERN HILLS REGIONAL RAILROAD AUTH.

2009 SD 57, 769 N.W.2d 798

• Court: South Dakota Supreme Court
• Decided: July 8, 2009
• Docket: 24808
• Status: Published

Opinion

769 N.W.2d 798 (2009) 2009 SD 57

James A. SWABY; Fred K. Ening Jr.; William W. Miller and Laurel D. Miller Co-Trustees under the William W. Miller Revocable Trust 50% interest and Laurel D. Miller and William W. Miller Co-Trustees of the Laurel D. Miller Revocable Trust 50% interest; Barbara J. Spector as Trustee of the Spector Living Trust and Muriel A. Hanna as Trustee under Declaration of Trust; Elwyn J. Cole; Crook Mt. Angus Ranch, Inc.; Albert R. and Lori A. Tetreault; Brian and Heidi Janz; John and Patricia Dvorak; Bobby A. and Cindy L. Ladner; Randy G. and Lori A. Fryer; William R. and Teresa Fox; David J. Fandrick; Desperado Investments, LLC; Tracy L. and Kelly J. McDaniels; and Gerald and Edith Miles, Plaintiffs and Appellees,
v.
NORTHERN HILLS REGIONAL RAILROAD AUTHORITY; South Dakota Department of Transportation; South Dakota Department of Game, Fish and Parks, Defendants and Appellants, and
Lawrence County, a political subdivision of the State of South Dakota; Dakota, Minnesota and Eastern Railroad Company ("DM & E"); and the Heirs, Devisees, Legatees, Executors, Administrators, or Creditors of the Following Deceased Individuals: Stephen W. Morgan and Frane E. Morgan, husband and wife; Christian G. Gralapp and Christiana Gralapp, husband and wife; Lyman D. Pettit and Hanna M. Pettit, husband and wife; Thomas S. Newman; Andrew Norine; Gottfried Burger; Richard Grenfell and Grace Grenfell, and John Lewis and Margaret Lewis, husband and wife; and all Persons Unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described in the amended complaint, Defendants.

No. 24808.

Supreme Court of South Dakota.

Argued November 4, 2008. Decided July 8, 2009.

Roger A. Tellinghuisen, Eric Strawn of Tellinghuisen & Gordon, PC, Spearfish, South Dakota, Attorneys for plaintiffs and appellees.

Thomas E. Brady, Dylan A. Wilde of Brady & Plumier, PC, Spearfish, South Dakota, Attorneys for defendants and appellants.

KONENKAMP, Justice.

[¶ 1.] Plaintiff landowners brought suit to quiet title to certain railroad rights of way. On cross motions for summary judgment, the circuit court quieted title in favor of the landowners. To resolve this appeal, we must interpret several 1890 deeds and the General Railroad Right-of-Way Act of 1875. We affirm in part, reverse in part, and remand.

Background

[¶ 2.] James Swaby, et al. (plaintiffs), brought a quiet title action against Northern Hills Regional Railroad Authority, et al. (NHRRA).^[1] Plaintiffs and NHRRA dispute title to certain property located in Lawrence County, South Dakota. The parties filed cross motions for summary judgment and submitted stipulated material facts. Those facts reveal that in 1890 several landowners executed deeds conveying a property interest in certain strips of land to the Fremont, Elkhorn and Missouri Valley Railroad Company (FEMV).^[2] FEMV had also obtained certain property interests in land under the General Railroad Right-of-Way Act of March 3, 1875 (1875 Act).^[3] The land conveyed to FEMV by the 1890 deeds or obtained by the 1875 Act will be referred to as the "Right of Way."

[¶ 3.] In May 1890, FEMV located and graded a railroad route in the Right of Way. FEMV also filed a plat and profile of its Whitewood to Deadwood, South Dakota railroad with the United States Land Office in Rapid City, South Dakota. The plat and profile were approved by the Secretary of the Interior in June 1890. In 1903, FEMV conveyed its interest in the Right of Way to the Chicago and Northwestern Railway Company (CNW).

[¶ 4.] In 1970, CNW filed an application with the Interstate Commerce Commission (ICC) entitled, "Application for a Certificate of Public Convenience and Necessity Authorizing the Abandonment of a Line of Railroad between Whitewood and Deadwood, Lawrence County, South Dakota." The ICC issued a "Certificate and Order" on May 13, 1970, and the abandonment was confirmed. CNW removed its railroad tracks and no railroad service has since been conducted over the Right of Way.

[¶ 5.] In December 1970, CNW entered into an agreement with the State of South Dakota (State) to sell to the State a portion of the Right of Way. On May 30, 1972, CNW quitclaimed its interest in the Right of Way to the State. On May 15, 1985, the State, through the South Dakota Department of Transportation (DOT), quitclaimed a portion of the Right of Way to the South Dakota Game, Fish, and Parks (GFP). On March 25, 2004, DOT quitclaimed all its remaining interest in the Right of Way to NHRRA. On June 16, 2006, Union Pacific Railroad Company quitclaimed all its interest in the Right of Way to NHRRA.^[4] On October 17, 2006, the Dakota, Minnesota & Eastern Railroad Corporation quitclaimed all its interest in the Right of Way to NHRRA.

[¶ 6.] Plaintiffs are the successors in interest to the original owners of the Right of Way acquired by FEMV. In their motion for summary judgment, plaintiffs asserted fee title ownership of the Right of Way based on abandonment and rights of reverter. NHRRA countered that it is the fee owner, as the successor in interest to FEMV. In considering the parties' motions, the circuit court examined the Right of Way by dividing it into three property types: property conveyed by the 1875 Act; property conveyed in 1890 by private deeds with reversionary language; and property conveyed in 1890 by private deeds without reversionary language. With respect to each type of property, the court ruled that the Right of Way had been abandoned, and thus the property reverted to the heirs and assigns of the original owners. The court quieted title in certain Right of Way land in favor of plaintiffs. The court also entered a default judgment against those who failed to answer plaintiffs' amended complaint.^[5]

[¶ 7.] NHRRA appeals. In summary, it argues that the court erred when it quieted title in favor of plaintiffs and against NHRRA for the land conveyed by (1) the 1875 Act; (2) the 1890 deeds with reversionary language; (3) the 1890 deeds without reversionary language; and (4) the deeds that specifically excluded the Right of Way land.^[6]

Analysis and Decision

1. The 1875 Right of Way Act

[¶ 8.] We discussed the 1875 Act in Brown v. Northern Hills Regional Railroad Authority, 2007 SD 49, 732 N.W.2d 732.

Beginning in the 1800s, Congress enacted several bills which explicitly granted public lands to railroad companies to aid the construction of a cross-country railroad. Barney [v. Burlington Northern R.R. Co.], 490 N.W.2d [726,] 729 [(SD 1992)] (citing Act of Sept. 20, 1850, 9 Stat. 466). Pursuant to these bills, "Congress gave generous land grants from the public domain to the railroads to subsidize the costs of the western expansion." Id. The expansion stretched from the 100th meridian from the middle of Nebraska to California. Id. Because of mounting public criticism, the nature of the land grants changed in 1872. Id. "[T]he House of Representatives enacted a resolution condemning its policy of outright land grant subsidies to railroads." Id. (citing Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979)). Instead, Congress began to reserve the land for homesteads and educational purposes. Id. Notwithstanding this changed policy, Congress continued to encourage the expansion of the West by enacting the 1875 Act, which authorized ROW [right of way] grants to railroads. Id. (citing 43 U.S.C. § 934).

Id. ¶ 9.

[¶ 9.] The United States issued land patents to homesteaders, passing title and ownership of certain public land to private individuals. Id. Some patents were issued subject to a railroad's right of way. Id. However, because the land patent at issue in Brown did not contain language indicating that the United States retained a reversionary interest in the right of way, we held that "whatever interest the United States retained in the ROWs [rights of way] through the 1875 Act was relinquished when land patents were issued[.]" Id. ¶ 22. The case was then remanded to determine whether the right of way had been abandoned.

[¶ 10.] Here, CNW's predecessor in interest, FEMV, acquired a right of way interest in public lands under the 1875 Act. The United States also issued land patents to certain predecessors in interest of plaintiffs.^[7] These land patents were subject to the railroad's right of way. But, like the land patents in Brown, the patents here do not reserve any interest in the Right of Way in the United States. Therefore, under Brown, if the Right of Way has been abandoned, plaintiffs are the fee owners as the heirs, successors, or assigns of the original property owners. See id.

[¶ 11.] Plaintiffs contend that CNW abandoned the Right of Way in 1970, when it removed the railroad tracks and facilities and never again used the Right of Way for railroad purposes. NHRRA, on the other hand, insists that despite CNW's application for abandonment with the ICC, it could not legally abandon the Right of Way "unless a specific Act of Congress would authorize such action."^[8] NHRRA contends that 43 U.S.C. §§ 912, 913 require this specific Act of Congress. NHRRA insists these sections apply because 43 U.S.C. § 939 gave Congress the power to amend the 1875 Act.^[9]

[¶ 12.] In Brown, we rejected the notion that sections 912 or 913 apply when the United States issues a land patent without specifically reserving an interest in the right of way. 2007 SD 49, ¶ 22, 732 N.W.2d at 740. The facts of this case fit squarely within our holding in Brown; therefore, sections 912 and 913 do not apply in this case. Nevertheless, NHRRA maintains that no abandonment can occur because a railroad cannot alienate its property interest acquired by a congressional act.^[10] We can find no authority to support NHRRA's assertion. Rather, based on our review of the caselaw, courts across the nation, both federal and state, have declared railroad rights of way abandoned despite the fact that the rights of way were acquired by a federal act. See Denver & R.G.R. Co. v. Mills, 222 F. 481, 486 (8th Cir.1915) (recognizing that a right of way granted to a railroad by Congress can be abandoned). Most recently, courts have held that a railroad right of way is abandoned when converted to a recreational trail. Ellamae Phillips Co. v. United States, 77 Fed.Cl. 387, 394 (2007), vacated on other grounds, 564 F.3d 1367 (Fed.Cir. 2009); see also Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 13, 110 S.Ct. 914, 922, 108 L.Ed.2d 1 (1990) (abandonment by converting right of way to a recreational trail); Hash v. United States (Hash II), 403 F.3d 1308, 1318 (Fed.Cir. 2005).

[¶ 13.] Acknowledging that a right of way acquired by a congressional act can be abandoned, we must now determine what constitutes legal abandonment. South Dakota has not previously addressed the issue of abandonment of a railroad right of way. We note, however, that railroad rights of way implicate particularly unique property interests.^[11]See Hanson Indus., Inc. v. County of Spokane, 114 Wash.App. 523, 58 P.3d 910, 914 (2002) ("The chaos reflected in court decisions arises from the unique nature of railroad rights-of-way."). Thus, while our past cases discussing abandonment of easements might be instructive, we are particularly guided by the decisions of courts that have considered abandonment of railroad rights of way.

[¶ 14.] In addressing abandonment of rights of way, courts have invoked common law abandonment principles. Chatham v. Blount County, 789 So.2d 235, 241 (Ala. 2001); Hinojos v. Lohmann, 182 P.3d 692, 701 (Colo.Ct.App.2008); Martell v. Stewart, 6 Kan.App.2d 387, 628 P.2d 1069, 1070-71 (1981); Washington Sec. and Inv. Corp. v. Horse Heaven Heights, Inc., 132 Wash.App. 188, 130 P.3d 880, 884-85 (2006). One court considered state-specific statutory abandonment law. Macerich Real Estate Co. v. City of Ames, 433 N.W.2d 726, 729 (Iowa 1988). And, depending on the circumstances, other courts have considered federal enactments, such as 43 U.S.C. §§ 912, 913. Marshall v. Chicago and Nw. Transp. Co., 31 F.3d 1028, 1032 (10th Cir.1994); Washington Securities and Inv. Corp., 130 P.3d at 885-86.

[¶ 15.] Since at least 1920, railroad abandonment of rail line has been regulated by the Interstate Commerce Commission (ICC), which is now the Surface Transportation Board (STB). See 49 U.S.C. § 10903 (1995). While authorization from the ICC or other authority to abandon a rail corridor is indicative of the railroad's intent to abandon its right of way, the authorization is generally not conclusive evidence of abandonment.^[12]See Schnabel v. DuPage County, 101 Ill. App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671, 677 (1981) (citing Lake Merced Golf & Country Club v. Ocean Shore R.R. Co., 206 Cal.App.2d 421, 23 Cal.Rptr. 881 (1962); Faus v. Pacific Elec. Ry. Co., 146 Cal. App.2d 370, 303 P.2d 814 (1957); City Motel, Inc. v. State ex rel. State Dept. of Highways, 75 Nev. 137, 336 P.2d 375 (1959)); Michigan Dept. of Natural Res. v. Carmody-Lahti Real Estate, Inc., 472 Mich. 359, 699 N.W.2d 272, 287 (2005); In re Condemnation by County of Lancaster, 909 A.2d 913, 920 (Pa.Commw.Ct.2006); see also City of Aberdeen v. Chicago and N.W. Transp. Co., 602 F.Supp. 589, 591 (D.S.D.1984); but see Kansas City Area Transp. Auth. v. 4550 Main Assoc., Inc., 742 S.W.2d 182, 191 (Mo.Ct.App.1986) ("An intention to abandon is inferred by the discontinuance of rail service with no prospect for resumption of service.").

[¶ 16.] "`[I]n order to establish that a railroad has abandoned its right-of-way easement, it is necessary to prove actual relinquishment and the intention to abandon the use of the premises.'" Nat'l Wildlife Federation v. ICC, 850 F.2d 694, 703 (D.C.Cir.1988) (quoting Schnabel, 57 Ill.Dec. 121, 428 N.E.2d at 676); Martell, 628 P.2d at 1070. Intent to abandon can be inferred from the circumstances. Nat'l Wildlife Federation, 850 F.2d at 703. "[M]ere non-use is probative of such intent but may not be sufficient in itself to demonstrate abandonment." Id.; see also Martell, 628 P.2d at 1071. Yet, when nonuse "destroy[s] either the object for which the easement was established or the means of its enjoyment[,]" abandonment is established. Schnabel, 57 Ill.Dec. 121, 428 N.E.2d at 676.

[¶ 17.] Here, the stipulated facts show that in 1968, CNW issued a board resolution stating that "the abandonment of the [rail] line will be advantageous to the economic and efficient overall operation" of the company and "said branch line is no longer necessary or expedient in the operation of such transportation system." The resolution directed that if authority was granted from the ICC for abandonment, the company was

[a]uthorized to take such action as may be necessary or appropriate to consummate such abandonment in all respects; and the salvaging, sale or other disposition of said branch line and the materials, property, right-of-way and land incidental thereto, in whole or in one or more parts, for such consideration as shall be at least the substantial equivalent of the net salvage value thereof, and for the best prices obtainable for the right-of-way and land.

[¶ 18.] In 1970, CNW filed an application for abandonment with the ICC. The application indicated that abandonment should be authorized because:

(a) the major shipper on the line is presently relocating to Whitewood, South Dakota, and the remaining shippers on the line do not ship sufficient volume to warrant maintenance of the line which is extremely difficult to operate because of the significant grades and almost continuous curvature;

(b) continued maintenance, reconstruction and rehabilitation of the line is not economically justified and would not be in the interest of the public or the Applicant; and

(c) rehabilitation and continued maintenance of the line required for continued operations constitutes an undue burden on interstate commerce.

The ICC issued CNW a certificate and order authorizing abandonment of the railroad. Thereafter, CNW removed its railroad tracks and facilities and abandonment was finalized. There has been no railroad service on the Right of Way since 1970. In 1972, CNW quitclaimed all interest and title in the Right of Way to the State of South Dakota. After a series of conveyances, NHRRA acquired its interest in the Right of Way in 2004 and 2006, from DOT, CNW's successor, Union Pacific Railroad Company, and Dakota, Minnesota & Eastern Railroad Corporation.

[¶ 19.] Based on our review of the law governing railroad abandonments, we conclude that by filing an application with the ICC for a certificate of abandonment and asserting no intent to continue or resume use of the Right of Way, CNW exhibited its intent to abandon the Right of Way. When CNW entered into a contract with the State in 1970 to sell its interest in the Right of Way, CNW then made clear its intent to discontinue use of the property for easement purposes. Finally, by removing the tracks and facilities and actually selling its interest to the State, CNW sufficiently relinquished its rights to the easement to constitute abandonment.

[¶ 20.] NHRRA, nonetheless, insists that the act of selling the property to the State "is wholly inconsistent with relinquishment of the property" and inimical to abandonment.^[13] On the contrary, courts have consistently held that an attempt to convey or sell a right of way easement to others to be used for other purposes defeats the purpose of the easement and constitutes abandonment.^[14]Chatham, 789 So.2d at 241; Cannco Contractors, Inc. v. Livingston, 282 Ark. 438, 669 S.W.2d 457, 459 (1984); Lake Merced Golf & Country Club, 23 Cal.Rptr. at 890-91; Mammoth Cave Nat'l Park Ass'n v. State Highway Comm'n, 261 Ky. 769, 88 S.W.2d 931, 935 (Ct.App.1935); Seventy-Ninth Street Improvement Corp. v. Ashley, 509 S.W.2d 121, 123 (Mo.1974); Marthens v. B & O R.R. Co., 170 W.Va. 33, 289 S.E.2d 706, 711-12 (1982); see also Buffalo Twp. v. Jones, 571 Pa. 637, 813 A.2d 659, 665-66 (2002) (no intent to abandon when railroad attempted to sell or convey because the railroad retained a right to reenter for future railroad use). When CNW abandoned the Right of Way, the easement extinguished. The circuit court did not err when it quieted title in plaintiffs to the right of way property conveyed through the 1875 Act.

2. The 1890 Deeds with Reversionary Language

[¶ 21.] The parties stipulated that the 1890 deeds conveyed to FEMV fee simple title in the disputed property.^[15] They disagree, however, on whether the conveyances were of fee simple title subject to conditions subsequent or fee simple determinable with possibilities of reverter. The circuit court did not specifically identify which sort of estate the conveyances transferred. Rather, the court called the grants a "right of way" and held that upon proof of abandonment the plaintiffs would regain ownership of the property.

[¶ 22.] Construction of a deed is a question of law. See Fisher v. Carolina S. R.R., 141 N.C.App. 73, 539 S.E.2d 337, 340 (2000); Ray v. King County, 120 Wash.App. 564, 86 P.3d 183, 186 (2004); see also Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603, 606 (1950). "We examine the instrument as a whole to determine what type of conveyance was intended." Tripp v. F & K Assam Family, LLC, 2008 SD 78, ¶ 9, 755 N.W.2d 106, 109 (citing Meyerink v. Nw. Pub. Serv. Co., 391 N.W.2d 180, 182 (S.D.1986) (citing Nw. Realty Co. v. Jacobs, 273 N.W.2d 141, 144-45 (S.D. 1978))); see also Chevy Chase Land Co. v. United States, 355 Md. 110, 733 A.2d 1055, 1062 (1999). If the language of a deed leaves doubt on the intention of the parties, we will consider all the attendant circumstances existing at the time of execution. Tripp, 2008 SD 78, ¶ 9, 755 N.W.2d at 109 (citing Meyerink, 391 N.W.2d at 182 (citing Nw. Realty Co., 273 N.W.2d at 145)).

[¶ 23.] A conveyance that creates a fee simple estate subject to a condition subsequent provides the grantor, heirs, and successors a power to terminate upon the happening of the stated event, i.e., when a condition is broken. Georgia, Ashburn, Sylvester & Camilla Ry. Co. v. Johnson, 226 Ga. 358, 174 S.E.2d 895, 897 (1970); Reichard v. Chicago, B. & Q.R. Co., 231 Iowa 563, 1 N.W.2d 721, 726-27 (Iowa 1942) (discussing estates in fee simple determinable and subject to conditions subsequent); Neb. Dept. of Roads v. Union Pacific R.R. Co., 241 Neb. 675, 490 N.W.2d 461, 464 (1992) (same); Lehigh Valley R.R. Co. v. Chapman, 35 N.J. 177, 171 A.2d 653, 657 (N.J.1961) (same, but land was taken by condemnation); Oklahoma City v. Local Fed. Sav. & Loan Ass'n, 192 Okla. 188, 134 P.2d 565, 569-70 (1943); see also Restatement (First) of Property § 45 (1936) (updated 2009); 28 Am.Jur.2d Estates § 166 (2009).^[16] Language conveying this estate often uses terms such as "upon express condition that," "upon condition that," or "provided that." Reichard, 1 N.W.2d at 727.

[¶ 24.] In contrast, a fee simple determinable estate automatically expires upon the occurrence of the stated event. Georgia, Ashburn, Sylvester & Camilla Ry. Co., 174 S.E.2d at 897; Reichard, 1 N.W.2d at 727; Neb. Dept. of Roads, 490 N.W.2d at 464; Lehigh Valley R.R. Co., 171 A.2d at 657; Oklahoma City, 134 P.2d at 569-70; Oregon Dept. of Transp. v. Tolke, 36 Or.App. 751, 586 P.2d 791, 795 (1978); see also Restatement (First) of Property § 44 (1936) (updated 2009); 28 Am.Jur.2d Estates § 26 (2009). Classic terms creating a fee simple determinable estate are "while," "so long as," "during," or "until." Reichard, 1 N.W.2d at 727; Thypin v. Magner, 28 N.Y.S.2d 262, 263-64 (App.Term 1941). Courts have also noted that a fee simple determinable estate can be created without traditional terms when the purpose of the conveyance is limited and provides that upon the happening of a stated event the estate will revert to the grantor. Pfeffer, 4 Ill. Dec. 740, 360 N.E.2d at 1120 (determinable fee when defeasance language contains language of limitation); Oregon Dept. of Transp., 586 P.2d at 795.

[¶ 25.] Although the distinguishing characteristics of these two estates are easily expressed and universally recognized, interpreting such language in deeds has led to conflicting holdings. See School Dist. No. Six v. Russell, 156 Colo. 75, 396 P.2d 929, 931 (1964) (noting confusion); Reichard, 1 N.W.2d at 727 (same). The confusion often arises because conveyances tend to employ terms and provisions common to both estates. Adding to the complexity in this case is the fact that the 1890 deeds involve a unique interest, railroad property. Nonetheless, our duty is to determine the intent of the parties from the documents as a whole. As one court remarked, "Little importance is now attached to the use of particular or formal words in the creation of these estates. . . . Such arbitrary distinctions smack too much of the over-refined technicalities of early English real property law. To give importance to it is to `pay tithe of mint and anise and cummin, and omit the weightier matters of the law.'" Reichard, 1 N.W.2d at 727 (citation omitted).

[¶ 26.] Here, we have six 1890 deeds executed by private land owners to FEMV.^[17] Each deed contains a granting and habendum clause. A granting clause makes up "[t]he words that transfer an interest in a deed or other instrument," while the habendum clause "defines the extent of the interest being granted and any conditions affecting the grant." Black's Law Dictionary (8th ed. 2004). In the granting clauses of all six deeds, the grantors indicate that they desire the construction of the railroad, and therefore, have given, granted, bargained, sold, conveyed, and confirmed certain property to the grantee, the railroad.^[18] The stated consideration ranges from $40, $82, $100, $150, $155, $249, $399, to $420. Four deeds are entitled "Warranty Deed," one, a "Right of way deed," and one, a "Deed."^[19] All six deeds convey a "strip of land," described in metes and bounds. However, the precise location of the strip is to be determined based on where the railroad is or will be located, and the conveyance is to be "over and across" the land described.^[20] Finally, the habendum clause of each deed provides that if the railroad "shall abandon said road" the land conveyed "shall revert" to the grantors, their heirs, successors, and assigns.^[21]

[¶ 27.] Beyond these similarities, however, three deeds can be distinguished because they contain language in the granting and habendum clauses specifically limiting the conveyance for railroad purposes.^[22] As a result of this difference, we analyze the six deeds using two sub categories: (A) those without limiting language and (B) those with limiting language.

A. Deeds without Limiting Language

[¶ 28.] The 1890 deeds from Morgan, Norine, and Pettit grant certain property to FEMV without any provision in the granting or habendum clauses limiting the use of the conveyed land. Specifically, the granting clauses convey the entire estates without exceptions, reservations, or specifications on the use of the land. What we must determine, therefore, is whether the reversionary language in the habendum clauses, providing that if the railroad abandons its road, all right, title and interest in the conveyed land shall revert to the grantors, their heirs and assigns, creates fee simple determinable estates or fee simple estates subject to a condition subsequent.

[¶ 29.] Based on our review of the language of these deeds and the law related to determinable and conditional estates, we conclude that the parties intended to convey fee simple title subject to a condition subsequent. Although the grantors included reversionary language, the grantors in no way limited the use of the land conveyed for any particular purposes. There are also no restrictions, limitations, or reservations in the habendum clauses.

[¶ 30.] Courts faced with similar language common to both estates — "provided that" (condition subsequent) and "shall revert" (determinable fee) — have held that a fee simple estate subject to a condition subsequent was intended. See Neb. Dept. of Roads, 490 N.W.2d at 466-67; Oklahoma City, 134 P.2d at 569-70; see also Concord & Bay Point Land Co. v. City of Concord, 229 Cal.App.3d 289, 280 Cal.Rptr. 623, 625-26 (1991) (conveyance "upon the following terms and conditions" was a fee simple subject to conditions subsequent despite existence of "shall revert"); Hannah v. Southern Pac. R. Co., 48 Cal.App. 517, 192 P. 304, 306 (1920); Mouat v. Seattle L.S. & E. Ry. Co., 16 Wash. 84, 47 P. 233, 234 (1896); see also Restatement (First) of Property § 45 cmt. m (1936) (updated 2009). These courts reach this conclusion, in part, because the language employed by the grantors only imposed conditions subject to penalty of forfeiture if breached and did not otherwise limit the purpose of the conveyance. The courts also noted that the mere existence of "shall revert" is insufficient to create a fee simple determinable estate. Neb. Dept. of Roads, 490 N.W.2d at 466 (granting clause and habendum clause do not limit the estate); see also Concord & Bay Point Land Co., 280 Cal.Rptr. at 626 (conveyance did not limit for any purpose in the granting clause); Oklahoma City, 134 P.2d at 570.^[23]

[¶ 31.] Because we conclude that the deeds without limiting language conveyed fee simple estates subject to a condition subsequent, we must now determine if any of the stated conditions have been breached. The only condition implicated in the Morgan, Norine, and Pettit Deeds is whether FEMV, "its successors or assigns, shall abandon said road. . . ." (Emphasis added.) NHRRA does not dispute that CNW ceased service of the railroad, but it contends that CNW and its successors in interest have never abandoned the road, in part, because CNW sold the property to the State.^[24]

[¶ 32.] To properly consider what actions can cause a breach of a condition, we do not interpret the word "road" in isolation. Rather, we consider all the words used to create the condition. The conditional sentence states,

Provided, That if said railroad shall not be located and graded within ten years from the date hereof, or if at any time after said railroad shall have been constructed, the said party of the second part, its successors or assigns, shall abandon said road, or the route thereof shall be changed so as not to be continued over said premises the land hereby conveyed, and all rights in and to the same, shall revert to the said parties of the first part their successors and assigns.

(Emphasis added.) Under this language, a breach can occur by less action than that required for complete abandonment of the "property." The conditional sentence first requires that the "railroad" be constructed in ten years. It then states that after the "railroad" is constructed the "road" shall not be abandoned, or re-routed. Use of the terms "road" or "railroad" are not synonymous with "property" or "interest."

[¶ 33.] Therefore, while we agree with NHRRA that CNW's attempt to sell its interest in the property to the State exhibited an intent contrary to abandonment of the property, the question here is not whether CNW, its successors or assigns, abandoned the property. Rather, we must decide whether CNW's actions have breached the condition in the deeds that the road not be abandoned. Based on our review of the stipulated facts, when CNW removed all tracks and facilities in 1970, and no railroad service has since been conducted on that property, the condition was breached.

[¶ 34.] NHRRA next claims that if a breach has occurred, plaintiffs' right of re-entry is barred by the Marketable Title Act, SDCL 43-30-3, and the statute of limitations, SDCL 15-3-3. First, the Marketable Title Act does not apply to cause the expiration of conditions subsequent. See SDCL 43-30-12 ("This chapter shall not be applied to bar . . . conditions subsequent in any deed."). Second, unlike other states, South Dakota has no statute of limitations specifically related to breaches of conditions subsequent. See Cal.Civ.Code 885.050; 735 ILCS 5/13-102 (Illinois); MGLA 260 § 31A (Massachusetts); MD Code Real Prop. 6-103 (Maryland); MSA 500.20 (Minnesota); NY RP ACT & PRO 612; Va.Code Ann. 8.01-255.1. Moreover, SDCL 15-3-3 does not bar a claim for re-entry upon a breach of a condition subsequent. Rather, it provides the statutory time for a landowner to take land back from someone attempting to establish adverse possession.^[25]Rotenberger v. Burghduff, 2007 SD 19, ¶ 18, 729 N.W.2d 175, 180-81.

[¶ 35.] When NHRRA obtained title to the property described in these deeds, it became the owner in fee subject to the conditions stated. See In re Opening and Extending of N. Conduit Ave., 262 A.D. 70, 27 N.Y.S.2d 841, 843-44 (1941). Because CNW breached a stated condition in 1970, the heirs, successors, and assigns of the original grantors (plaintiffs) have the power to terminate the estate. NHRRA has not provided any reason why plaintiffs' quiet title suit cannot be maintained.^[26] Therefore, the court did not err when it quieted title against NHRRA to the property in the Morgan, Norine, and Pettit Deeds.

B. Deeds with Limiting Language

[¶ 36.] Like the deeds without limiting language, the 1890 deeds from Burger, Grenfell, and Newman give, grant, bargain, sell, convey and confirm to FEMV certain property. Also similar is the language in the habendum clauses providing that "if said railroad shall not be located and graded within two years from the date hereof or if at any time after said railroad shall have been constructed, [FEMV], its successors or assigns shall abandon said road, or the route thereof shall be changed so as to not continue of said premises, the land hereby conveyed, and all rights in and to the same shall revert to the said parties of the first part their successors and assigns." The significant difference, however, is the presence of limiting language in both the granting and habendum clauses of these three deeds: "for the purpose of constructing a railroad thereon and for all uses and purposes connected with the construction and use of said railroad. . . ." (granting clause) and "for any and all uses and purposes connected with the construction, preservation, occupation and enjoyment of said railroad" (habendum clause).

[¶ 37.] Although the use of "provided that" is indicative of a conditional estate, the language of these deeds in whole persuades us that the parties intended to convey fee simple determinable estates. Unlike the Morgan, Pettit, and Norine Deeds, these deeds do more than impose conditions subject to penalty of forfeiture for a breach. These deeds expressly limit and restrict the conveyance for the purpose of railroad use. Thus, while the deeds do not employ traditional determinable fee language ("so long as," "during," and "while"), the presence of limiting language and the clause demanding automatic reversion reflects an intent to create fee simple determinable estates.^[27]See Barnes v. Winford, 833 P.2d 756, 757 (Colo.Ct.App.1991); Georgia, Ashburn, Sylvester & Camilla Ry. Co., 174 S.E.2d at 897; Reichard, 1 N.W.2d at 728-29; Oregon Dept. of Transp., 586 P.2d at 795-96.

[¶ 38.] A fee simple determinable estate automatically expires upon the occurrence of the stated event, requiring no legal action to vest title in the grantors, their heirs, successors, and assigns. See Herr v. Herr, 957 A.2d 1280, 1285-87 (Pa.Super.Ct.2008). In this case, the question whether a triggering event has caused the estates to expire implicates the same review conducted on whether the condition subsequent was breached in the Morgan, Norine, and Pettit Deeds. Just as we held that the condition was breached in those deeds, we conclude that the triggering event in the Burger, Grenfell, and Newman Deeds occurred in 1970, when CNW removed all its tracks and facilities and did not again use the road for railroad purposes. The occurrence of the stated event in 1970 caused the automatic expiration of the estate, and all title and interest in the property vested in the grantors, their heirs, successors, and assigns.^[28] The court did not err when it quieted title against NHRRA to this property.

3. The 1890 Deeds without Reversionary Language

[¶ 39.] In 1890, Rudolph Kroll and Allie Clark executed separate quit claim deeds to FEMV. Both deeds use a standard form. The deeds

grant, remise, release and quitclaim . . . all . . . estate, right, title, interest, claim, property and demand of, in and to the following real property . . . The Right of Way one hundred (100) feet wide for the [FEMV] being fifty (50) feet in width on each side of the center line of the said Railroad through over and across the North half of the North East quarter (N 1/2 NE 1/4) of Section six (6) in Township five (5) North of Range four (4) East of the B.H.M as said line of Railroad is located over said tract of land.

(Emphasis added.) The circuit court held that the deeds conveyed an easement to the railroad based on the use of the words "Right of Way" and the lack of specificity in the property description. NHRRA, however, contends that, among other things, an easement was not intended because the absence of reversionary language indicates a conveyance in fee.

[¶ 40.] This Court has previously construed private deeds to railroad companies. Tripp, 2008 SD 78, ¶ 9, 755 N.W.2d at 109; Meyerink, 391 N.W.2d at 182; Nystrom v. State, 78 S.D. 498, 499-500, 104 N.W.2d 711, 712 (1960); Sherman v. Sherman, 23 S.D. 486, 122 N.W. 439, 442-43 (1909). In each case, we held that fee title was intended.^[29] These deeds, however, are unlike the deeds construed by this Court in Tripp, Sherman, Nystrom, and Meyerink. The Kroll and Clark Deeds contain no language warranting, defending, waiving, or releasing all claims against all persons.^[30] Moreover, the deeds grant to the railroad a "Right of Way" through, over and across a tract of land where "said line of Railroad is located." The right of way language and lack of certainty in the strips of land conveyed strongly suggests only a surface right. See Polk v. Ball, 149 F.2d 263, 266 (5th Cir.1945); Hash II, 403 F.3d at 1320-21; New Orleans & Ne. R.R. v. Morrison, 203 Miss. 791, 35 So.2d 68, 70 (1948); Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686, 687 (1929).

[¶ 41.] Because these deeds conveyed to the railroad an easement, we next consider whether the railroad abandoned its easement interest.^[31] The question of abandonment for the easements conveyed by these deeds involves the same review we conducted in Issue 1. In view of our holding on Issue 1, the easements granted by these 1890 Deeds without reversionary language were abandoned. CNW exhibited its intent to abandon the Right of Way in 1970, and thereafter, relinquished its interests in the Right of Way by removing the tracks and facilities and not using the Right of Way after 1970 for railroad purposes. Upon abandonment, the easement extinguished. Therefore, the court did not err when it quieted title in certain plaintiffs to the property described by these deeds.^[32]

4. The Deeds Specifically Excluding the Right of Way Land

[¶ 42.] Certain plaintiffs' current deeds specifically excluded the Right of Way from the property conveyed to those plaintiffs. According to NHRRA, the circuit court erred when it quieted title in favor of these plaintiffs because they do not hold any right or interest in the Right of Way and have no right of reversion under the 1890 deeds.^[33] Plaintiffs respond that because the original grantors, their heirs, successors, and assigns failed to answer plaintiffs' complaint seeking to quiet title in the property, fee title was properly quieted in favor of plaintiffs, when the court ruled the Right of Way abandoned.

[¶ 43.] "An action to quiet title may be maintained by any person having an estate or interest in land, either legal or equitable." Morse v. Pickler, 28 S.D. 612, 134 N.W. 809, 810 (1912) (citation omitted). A failure to show ownership, however, is fatal to a claim. Id. "Only through the strength of [a party's] own title could [that party] recover the judgment [] sought." Fuller v. Middaugh, 76 S.D. 288, 293, 77 N.W.2d 841, 844 (1956) (citing Morse, 28 S.D. 612, 134 N.W. at 810; Waldner v. Blachnik, 65 S.D. 449, 274 N.W. 837 (1937)); see also SDCL 21-41-11.

[¶ 44.] The deed to Plaintiff Crook Mountain Angus Ranch, Inc. specifically excludes the Right of Way. However, the Right of Way land excluded from this deed was originally obtained by FEMV through the 1875 Act. Because the 1875 Act gave FEMV an easement, and the easement extinguished when the railroad abandoned its right of way, the court did not err when it quieted title against NHRRA to this property. However, which plaintiffs, if any, hold fee title to the Right of Way land excluded from Crook Mountain's deed is not clear from the record. Indeed, the circuit court recognized that "[t]here may be issues between plaintiffs as to ownership which may be determined at a further hearing if plaintiffs are unable to resolve ownership issues among themselves." Plaintiffs have not claimed a dispute of ownership; therefore, there is nothing for us to review with respect to this property.

[¶ 45.] The deed to Plaintiff William W. Miller and Laurel D. Miller, co-trustees, conveys certain property "lying North of the Railroad right of way." The Right of Way land excluded in the conveyance to the Millers was originally acquired by FEMV from two deeds, one from Pettit and the other from Newman. The deed to Plaintiff Fred Ening, Jr. conveyed certain land, "lying North of the Railroad Right of Way." The Right of Way land excluded in this deed was originally acquired by FEMV from the deed from Norine.

[¶ 46.] We previously determined that FEMV held title to the land conveyed by the Pettit and Norine Deeds in fee subject to a condition subsequent. Although we found that the condition in the Norine and Pettit Deeds was breached, FEMV and its successors and assigns retained fee ownership of the property until the successors or assigns of the original grantors exercised their power of termination. Because the Millers and Ening have not established title to the Right of Way land originally conveyed to FEMV by the Norine and Pettit Deeds, they are not the successors or assigns of Pettit or Norine and have no power of termination to exercise. Moreover, the Millers have not established title to the land originally conveyed to FEMV by the Newman Deed, which automatically vested in the grantors, their heirs, and assigns when CNW abandoned the road in 1970. Based on our review of the record, we cannot say who is the successor or assign of Newman, Norine, and Pettit sufficient to establish title in the Right of Way land excluded from the Millers and Ening Deeds. The issue is remanded for proper determination consistent with this opinion.

5. Conclusion

[¶ 47.] We affirm the circuit court's default judgment and summary judgment on stipulated facts quieting title in favor of certain plaintiffs to the land originally acquired by FEMV through the 1875 General Railroad Right-of-Way Act. We further affirm the court in quieting title in favor of certain plaintiffs to land conveyed in 1890 by private deeds to FEMV, except the land specifically addressed in Issue IV and identified as conveyed to Millers and Ening in the court's judgment at number six. With respect to that land, we reverse and remand for further proceedings.

[¶ 48.] Affirmed in part, reversed in part, and remanded.

[¶ 49.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and SABERS, Retired Justice, concur.

NOTES

[1] The plaintiffs include James Swaby, Fred Ening Jr., William and Laurel Miller as co-trustees of the William W. Miller Revocable Trust 50% interest and Laurel D. Miller Revocable Trust 50% interest, Barbara Spector as trustee of the Spector Living Trust, Murial Hanna as trustee under Declaration Trust, Crook Mt. Angus Ranch Inc., Albert and Lori Tetreault, Brian and Heidi Janz, John and Patricia Dvorak, Bobby and Cindy Ladner, Randy and Lori Fryer, William and Teresa Fox, David Fandrick, Desperado Investments, LLC, Tracy and Kelly McDaniels, and Gerald and Edith Miles.

The defendants include Northern Hills Regional Railroad Authority, South Dakota Department of Transportation, South Dakota Department of Game, Fish, and Parks, Lawrence County, Dakota, Minnesota and Eastern Railroad Company, and the heirs, devisees, legatees, executors, administrators, or creditors of Stephen and Frane Morgan, Christian and Christiana Gralapp, Lyman and Hannah Pettit, Thomas Newman, Andrew Norine, Gottfried Burger, Richard and Grace Grenfell, John and Margaret Lewis, and all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described in the amended complaint.

[2] These landowners include Stephen and Frane Morgan, Lyman and Hannah Pettit, Andrew Norine, Gottfried Burger, Richard and Grace Grenfell, and Thomas Newman.

[3] Christian and Christiana Gralapp and John and Margaret Lewis executed deeds in favor of FEMV conveying an interest in certain strips of land in 1890, all of which was right of way land from the 1875 Act.

[4] On October 1, 1995, CNW was merged into the Union Pacific Railroad Company.

[5] Default judgment was entered against Stephen and Frane Morgan, Christian and Christiana Gralapp, Lyman and Hannah Pettit, Thomas Newman, Andrew Norine, Gottfried Burger, Richard and Grace Grenfell, John and Margaret Lewis, and all their heirs, successors, and assigns.

[6] "Summary judgment is proper when the law is correctly applied and there are no genuine issues of material fact." Kirksey v. Grohmann, 2008 SD 76, ¶ 12, 754 N.W.2d 825, 827 (citing Rush v. U.S. Bancorp Equip. Fin., Inc., 2007 SD 119, ¶ 7, 742 N.W.2d 266, 268 (quoting Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza Condo. Ass'n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846))). Here, however, "[t]he parties stipulated to the facts and thus our review is limited to determining whether the trial court correctly applied the law." Economic Aero Club, Inc. v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D. 1995).

[7] One land patent was issued to Thomas Lewis in 1895; another to Christian Gralapp in 1892.

[8] NHRRA further contends that if abandonment is allowed the enactment of 43 U.S.C. §§ 912, 913 would have been unnecessary. But as the United States Federal Claims Court remarked,

The 1922 Act [43 U.S.C. § 912] was restating the obvious conclusion regarding the language of the 1875 Act and other right-of-way statutes that, in the absence of additional language, a right-of-way through public lands allowed for a limited use and did not reserve any fee type interests or reversionary rights as part of that right-of-way. It would appear that the language of the 1922 Act was intended to address, clarify, and resolve issues created by the imprecise language employed by the courts on this subject in the early part of the twentieth century. . . . In the alternative, it has been suggested that the 1922 Act applied only to pre-1871 grants to railroad companies because prior to that date railroad companies were issued outright land grants, as opposed to the rights-of-way granted to railroad companies after that date.

Beres v. United States, 64 FedCl 403, 419 (2005) (citing Great N. Ry. Co. v. United States, 315 U.S. 262, 279, 62 S.Ct. 529, 536, 86 L.Ed. 836 (1942)).

[9] NHRRA avers that this Court did not consider 43 U.S.C. § 939 in Brown, which section gives Congress the right to amend 43 U.S.C. §§ 934-939 of the 1875 Act at any time. There being no claim that 43 U.S.C. §§ 934-939 was altered, amended, or repealed, we need not address NHRRA's assertion. More importantly, although Congress enacted 43 U.S.C. §§ 912, 913, which some courts have construed to apply against the 1875 Act, this Court specifically rejected the applicability of those sections in facts such as presented here. See Brown, 2007 SD 49, ¶ 22, 732 N.W.2d at 740.

[10] None of the cases cited by NHRRA are relevant. Some examine the United States' right to have a right of way declared forfeited when a railway was never constructed on the land. See Schulenberg v. Harriman, 88 U.S. 44, 63-64, 21 Wall. 44, 63-64, 22 L.Ed. 551 (1874) (forfeiture); Spokane & British Columbia Ry. Co. v. Washington & Great N. Ry. Co., 219 U.S. 166, 174, 31 S.Ct. 182, 184, 55 L.Ed. 159 (1911) (forfeiture of publicly granted land requires appropriate judicial or legislative action); United States v. Washington Improvement & Dev. Co., 189 F. 674, 682 (D.Wash. 1911) (discussing forfeiture). Another case applies law related to different land grants. See Energy Transp. Sys., Inc. v. Union Pacific R.R. Co., 606 F.2d 934 (10th Cir.1979) (interpreting the land grant from an 1862 Act).

[11] We have discussed abandonment of easements under SDCL 43-13-12, recognizing that the intent to abandon must be proved by clear and convincing evidence. Graves v. Dennis, 2004 SD 137, ¶ 11, 691 N.W.2d 315, 318 (citing Cleveland, 1998 SD 91, ¶ 26, 582 N.W.2d 720, 725; Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852, 859 (1999)). "`[T]here must be an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement. Mere nonuse of an easement, created by grant, is insufficient to satisfy this requirement.'" Id. (quoting Hofmeister v. Sparks, 2003 SD 35, ¶ 13, 660 N.W.2d 637, 641 (citing Clark v. Redlich, 147 Cal.App.2d 500, 305 P.2d 239, 244 (1957))).

[12] We previously recognized that ICC approval of abandonment does "not determine that abandonment has actually occurred." Barney, 490 N.W.2d at 732, overruled on other grounds by Brown, 2007 SD 49, 732 N.W.2d 732, (quoting Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1339 (9th Cir.1990)).

[13] NHRRA relies on Vieux, 906 F.2d at 1341 to claim that conveyance of property is inconsistent with an intent to abandon. Vieux, however, is distinguishable, as the Ninth Circuit applied 43 U.S.C. §§ 912, 913 in addressing the issue of what constitutes abandonment of railroad rights of way.

[14] In Tripp v. F & K Assam Family, LLC, we noted that selling an interest in the property to a third party supports a finding that the railroad held fee title, rather than an easement. 2008 SD 78, ¶ 18, 755 N.W.2d 106, 112. Here, however, we are not determining title; we are addressing the issue of abandonment of an easement.

[15] The construction of a deed is a question of law and we are not bound by the parties' stipulation that fee title was intended. See State Highway Comm'n v. Fortune, 77 S.D. 302, 313-14, 91 N.W.2d 675, 682-83 (1958) (this "Court is not bound by a stipulation of the parties as to the law"). Although plaintiffs stipulated that fee title was intended, in their appellate brief to this Court, counsel argued that the deeds conveyed mere easements. Then, during oral argument, counsel for plaintiffs conceded that fee title was stipulated to and expressly abandoned the argument that the deeds conveyed only easements.

[16] Other cases, not implicating railroad deeds, have discussed fee simple determinable and condition subsequent estates. See Richardson v. Holman, 160 Fla. 65, 33 So.2d 641, 642 (1948); Pfeffer v. Lebanon Land Dev. Corp., 46 Ill.App.3d 186, 4 Ill.Dec. 740, 360 N.E.2d 1115, 1119-20 (1977); Stolarick v. Stolarick, 241 Pa.Super. 498, 363 A.2d 793, 797 (1976). Also, secondary authorities have extensively compared the two estates. See 28 Am.Jur.2d Estates §§ 26-47, §§ 151-196.

[17] The six deeds include the following grantors: Stephen and Frane Morgan, Lyman and Hannah Pettit, Thomas Newman, Andrew Norine, Gottfried Burger, and Richard and Grace Grenfell.

[18] The granting clauses, with certain variations, state:

Witnesseth, That Whereas the said [FEMV] party of the second part, is about to construct a railroad and branches in Lawrence County, South Dakota and the said parties of the first part, being desirous of the construction of said railroad, and to aid the same by the grant herein made in consideration of the premises and the sum of [varying consideration between the deeds] to them . . . have given, granted, bargained, sold, conveyed and by these presents do give grant bargain sell convey and confirm to the said party of the second part, and to its successors and assigns forever, . . . .

[19] The Newman, Morgan, Pettit, and Norine Deeds are entitled "Warranty Deed." The Burger Deed is entitled "Right of way deed" and the Grenfell Deed is entitled "Deed."

[20] The deeds, although different in the location of the land, state: "a strip of land (100) one hundred feet in width being fifty feet in width on each side of the center line of said railroad wherever the same have been or may be definitely located over and across the following described land. . . ." (Emphasis added.) The Newman Deed provides "a strip of land from 100 to 200 feet in width being from 50 to 100 feet in width on each side of the center line of said railroad wherever the same have been or may be located over and across the following described land. . . ." The Norine Deed provides "a strip of land varying in width from fifty (50) feet to one hundred & fifty (150) feet on each side of the center line of said Railroad wherever the same has been or may be definitely located over and across. . . ." (Emphasis added.)

[21] In these six deeds, the habendum clauses state (with some minor differences),

Provided, That if said railroad shall not be located and graded within two years [ten years for the Morgan, Norine, and Pettit Deeds] from the date hereof, or if at any time after said railroad shall have been constructed, the said party of the second part, its successors or assigns, shall abandon said road, or the route thereof shall be changed so as not to be continued over said premises the land hereby conveyed, and all rights in and to the same, shall revert to the said parties of the first part their successors and assigns.

(Emphasis added.)

[22] The Grenfell, Newman, and Burger Deeds contain the following limiting language in the granting clause:

. . . by these presents do give grant bargain sell convey and confirm to the said party of the second part, and to its successors and assigns forever, for the purpose of constructing a railroad thereon and for all uses and purposes connected with the construction and use of said railroad,. . . ."

(Emphasis added.) A further limitation in these deeds appears in the habendum clause:

To Have, Hold and Enjoy the lands above conveyed, with appurtenances and privileges thereto pertaining and the right to use the said land and material whatsoever kind within the limits of the said above described land above conveyed unto the said party of the second part [FEMV] and to its successors and assigns forever, for any and all uses and purposes connected with the construction, preservation, occupation and enjoyment of said railroad.

[23] Another case, not involving railroads, has found the same. See Pfeffer, 4 Ill.Dec. 740, 360 N.E.2d at 1120 (defeasance language failed to limit).

[24] We are interpreting whether a specific condition in a deed has been breached, not whether an easement has been abandoned. Therefore, our analysis does not implicate, and is distinct from, abandonment of the easements discussed in the first issue.

[25] NHRRA also asserts that the land has been adversely possessed by the State and NHRRA for the requisite twenty years. See SDCL 15-3-10. Although CNW breached the condition in the deeds in 1970, title in the estate remained vested in CNW and its successors and assigns until the grantors, their heirs, successors, or assigns exercised their power of termination. Thus, there was no hostile possession of the land by the State or NHRRA. As one court remarked, "it is not conceptually logical for the grantee of a fee estate subject to a condition subsequent to acquire an indefeasible estate simply by remaining in possession of the property following breach of the condition. His continued possession and enjoyment of the property does not become adverse to any possessory estate of the grantor until the latter, or his heirs, elect to declare a forfeiture." Metropolitan Park Dist. v. Rigney's Unknown Heirs, 65 Wash.2d 788, 399 P.2d 516, 518 (1965); see also New York v. Coney Island Fire Dept., 259 A.D. 286, 289, 18 N.Y.S.2d 923 (1940).

[26] Several cases discuss principles of wavier, estoppel, and laches in considering the timeliness of a claim on a breach of a condition subsequent. Compare Opening and Extending of N. Conduit Ave., 27 N.Y.S.2d at 843 ("Their delay, acquiescence and silence, no matter how long continued, could not create an estoppel."), with Humphrey v. C.G. Jung Ed. Ctr., 624 F.2d 637, 643 (5th Cir.1980) (under Texas law right for re-entry must be brought within a reasonable time), and Sligh v. Plair, 263 Ark. 936, 569 S.W.2d 58, 60 (1978) (waiver because grantor was aware of breach and acquiesced), and Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 489 (1926)("A waiver or estoppel arises when the grantor does some act inconsistent with his right of forfeiture, and where it would be unjust for him thereafter to insist upon a forfeiture."). NHRRA, however, has not raised any equitable defenses such as waiver, laches, or estoppel.

[27] The presence of similar limiting language has caused courts to construe a conveyance to be merely an easement interest. See Diaz v. Home Fed. Sav. and Loan Ass'n, 337 Ill. App.3d 722, 272 Ill.Dec. 199, 786 N.E.2d 1033, 1041-42 (2002); Hawk v. Rice, 325 N.W.2d 97, 98-100 (Iowa 1982); Jordan v. Stallings, 911 S.W.2d 653, 658 (Mo.Ct.App. 1995); Dowd v. City of Omaha, 2 Neb.App. 958, 520 N.W.2d 549, 554 (1994); see also King County v. Squire Inv. Co., 59 Wash.App. 888, 801 P.2d 1022, 1025 (1990). Here, however, the grants are conceded to be fee simple estates.

[28] NHRRA claims that if the triggering event occurred, title vested in CNW, its successors, and assigns under the Marketable Title Act, SDCL 43-30-3, and based on adverse possession, SDCL 15-3-10. The Marketable Title Act contains no language indicating that reversionary interests are extinguished. Rather, all title and interest in the land vested with the grantors, their successors, and assigns automatically in 1970. There was no requirement that plaintiffs institute suit to quiet title to regain possession. In regard to NHRRA's adverse possession claim, there has been no use or occupancy of the land since at least 1984, and therefore, we need not address the merits of this assertion.

[29] In Sherman, this Court examined an 1887 deed that limited the conveyance "for the use of its railroad, but for no other purpose." 23 S.D. 486, 122 N.W. at 442-43. The deed, however, did not contain reversionary language. Moreover, consideration for the conveyance was $6,850 and the deed "discharge[d] and forever release[d] [the Railroad] from all claims whatsoever." Id. (emphasis added). Therefore, the Court concluded that fee title was intended. Then, in Nystrom, the Court similarly construed a 1906 deed to convey fee simple title to a railroad. 78 S.D. at 500, 104 N.W.2d at 712. This deed did not limit the use of the property for railroad purposes, and there was no reverter clause. In 1986, the Court again construed a 1900s railroad deed to have conveyed fee simple title. Meyerink, 391 N.W.2d at 182. Despite the fact that the deed was captioned "right-of-way deed," there was no language limiting the conveyance to railroad purposes. Id. Most recently, in 2008, this Court ruled that while a deed was entitled a right of way deed and contained limiting language, the remaining language of the deed indicated that fee title was intended. Tripp, 2008 SD 78, ¶ 14, 755 N.W.2d at 111. The deed conveyed the property to the railroad, its successors, and assigns, to have and hold forever. It also warranted title to the property against all persons whomsoever. Finally, the deed did not contain any reversionary language.

[30] Sherman, 23 S.D. 486, 122 N.W. at 444 (deed discharged and forever released the grantors from all claims whatsoever); Nystrom, 78 S.D. at 499-500, 104 N.W.2d at 712 ("expressly waives and releases . . . all damages to the lands of said party of the first part"); Meyerink, 391 N.W.2d at 182 (grantors warranted and forever defended title to the property); Tripp, 2008 SD 78, ¶ 14, 755 N.W.2d at 111 (warranted title to the property "against all persons whomsoever").

[31] NHRRA claims that if the Right of Way is deemed abandoned, the land has been adversely possessed by the State and NHRRA for over 20 years. We need not decide whether a railroad easement can be adversely possessed by the railroad. It is undisputed that the Right of Way has not been used for railroad purposes, or for any purpose, since at least 1984.

[32] We recognize that CNW quitclaimed its interest in the Rights of Way to the State in 1972. This, however, does not revive the easement. CNW merely conveyed to the State what interest it had, if any. CNW had no interest, and therefore, the State obtained nothing.

[33] The plaintiffs include Crook Mountain Angus Ranch, Inc., William W. Miller in a Revocable Trust at 50% and Laurel D. Miller as co-trustees of Laurel D. Miller Revocable Trust at 50% as Tenants in Common, and Fred Ening, Jr. The court quieted "title to the railroad right-of-way which adjoins" the property described in these plaintiffs' deeds to the "named Plaintiffs as to the Defendants."