Uhl v. Ohio River Railroad

41 S.E. 340, 51 W. Va. 106, 1902 W. Va. LEXIS 67

• Court: West Virginia Supreme Court
• Decided: March 8, 1902
• Status: Published

Opinions

Brannon, Judge:

An agreement was made between Charles D. Uhl and The Wheeling, Parkersburg & Charleston Eailroad Company, the name of which was changed to The Ohio Eiver Eailroad Company, which agreement reads as follows: “This agreement made this 13th day of April, 1882, between Charles D. Uhl, of the conntj'- of Wood, West Virginia, of the first part, and The Wheeling, Parkersburg & Charleston Eailway Company, a corporation under the laws of West Virginia, of the second part, Witnesseth: That whereas the said railway company proposes to construct and build its road through the said county of Wood, now in consideration of the advantages which said road will be to the said party of the first part, and to his propert}^ and of the premises, and the further consideration that the said' railroad company will make a good roadway or crossing where the private road of said Uhl crosses said railroad, and also put in or-build cattle stops wherever said railroad conies from one field to another, the said Charles D. Uhl does hereby grant and convey unto the said Wheeling, Parkersburg and Charleston Eailway Company the full and free right of way of the width of fifty feet with necessary grounds for cuts and fills for the road of said company in, upon and through the lands of the said Uhl, upon which he now resides, described substantially as follows, to-wit: Being the line surveyed by engineer Wharton * * * which right of way is hereby granted and conveyed for the construction, building and use of. the road of said company. * * * And the said Uhl also -hereby covenants and agrees to execute and acknowledge in duo form of law when required by said company, a deed conveying to said company in fee simple the land hereinbefore described. It is also agreed that said Charles D. Uhl hereby also grants and conveys to said railroad company the right of way, upon the same conditions'and with the same restrictions, through the tract of land containing 28 or 30 acres above the one upon which he resides, and adjoining the lands of John E. Uhl and John F. Creel, it being understood that the same conditions applies to this right of way as to the one on the land upon which he now resides.-” Later the Ohio Eiver Eail-road Company made to Samuel Logan a lease of the said fifty foot strip of land for the purpose of boring for oil, and Logan erected a derrick for that purpose, when Uhl obtained an injunction in the circuit court of Wood County against Logan’s operations, and the judge of that court, having refused to dissolve the injunction, the railroad company has appealed the case to this Court.

The railroad company contends that the agreement confers upon it a right of absolute fee simple estate in the very corpus or body of the soil of the fifty foot strip, the very land itself, carrying with it all minerals, and consequently the right to extract oil from it, just as Uhl may do on his remaining land, and the company demanded of him a conveyance carrying the very land itself. On the other hand, Uhl contends that he conferred on the company only an easement, a right to construct and operate upon the land a railroad, and he denies the right to the company, or to any one claiming under its right, to carry on upon the land the business of the production of oil, and thereby damage his remaining land irreparably by draining from it the oil in it. This controversy thus calls for the construction of said agreement. If a written contract is not ambiguous, it speaks for itself, and courts must carry its written words into effect; but if it is ambiguous, we may consider the circumstances surrounding the parties at the time they executed it, their situation, the nature of the contract which they were making as to its purpose, in order to enable us to say what that situation or occasion called for, what was their intention, so that we may glean the intention of the parties, as that actual intention is the criterion, the key to unlock the meaning of the contract. Knowlton v. Campbell, 37 S. E. 581, 48 W. Va. 294; 1 Beach, Mod. Law of Contracts, 702; Nash v. Towne, 5 Wall. 687. This agreement is not, in a legal point of view, ambiguous. Its very face says that the motive and purpose inspiring it, the occasion for its execution, was the obtaining by the company of right of passage for a railroad through Uhl’s farm, and to accomplish this purpose a “right of way” was granted “in, upon and through lands of said Uhl.” This is the core of the writing, its essence, its grant, and it speaks a purpose to concede simply a right of way, an easement, a passage for the road. It does not imply a grant of the very land itself, but only a right of way, “in, upon and through the lands” of Uhl. Those prepositions “in,” “upon,” “through,” speak this intent to concede mere passage. If the intent were to grant the land to all intents, why did not the paper do so then by the nse of the word “land” in connection with the word “grant” ? And treating it as an executory agreement, why did it not use the word “land” in its essential part P Why did it use the words “right of way” ? Take the words, “right of way,” prima facie, they legally imply only an easement. To give them other meaning, there must be other words so showing. True, when we speak incidentally of “right of way,” we may mean the land on which the right of way exists; but in a grant to a railroad it means only the easement. As this is strongly contested by able counsel in the elaborate argument which has taken place in this hotly contested case, I have for the second time examined this question, and I am confirmed in such opinion. “The words Tight of way’ in a grant describe the tenure, not the land granted.” Atlantic & Pacific R. Co. v. Lesure, 37 Am. & Eng. Railroad Cas. 368. A deed conveyed to a railroad company a “certain piece of land * * * described as follows, to-wit: The right of way for a railroad running * * * a strip of -land forty feet wide and nine hundred and fifty-two feet in length,” with full covenant of warranty, and it was held that the deed conveyed an easement, not a fee in the land. Jones v. Van Bochove, 103 Mich. 98, 1 Am. & Eng. Railroad Cas. Annotated 664. “ CA right of way,’ in its legaly and generally accepted meaning in reference to a railway, is a mere easement in the land of others obtained by condemnation or purchase.” Williams v. W. N. Ry. Co., 50 Wis. 71, 5 Am. & Eng. Railroad Cas. 290; Calcasieu v. Harris, 43 Am. & Eng. Railroad Cas., Annotated, 570. In the first case cited the court said: “It would be using the term in an usual sence by applying it to an absolute purchase of the fee simple of lands to be used for railroad purposes.”- A railroad company owning land conveyed it “reserving and excepting a strip of land * * :1! to be used for a right of way or other railroad purposes.” Held, that the deed passed the whole fee to the purchaser, and that the company reserved only a right of way. Biles v. Tacoma R. Co., 5 Wash. 509. A deed said “do grant and convey to said R. R. Co. the following piece or tract of land * * * for the construction of said road; to have and to hold to said company forever,” and it was held to convey “a right of way simply,” not a fee. Barlow v. C. R. I. Co., 29 Iowa 276. In Vermilya v. C. M. & St. P. R. Co., 66 Iowa 606, the court said that the words “right of way” meant an easement only. In Ottumwa v. McWilliams, 11 Iowa — , an agreement to convey a strip of land in fee for railroad purposes was held to convey an easement only. A deed granted to a railroad company “the right of way for so much of said railroad, being eighty feet wide, as may pass through the following land,” was held to convey merely an easement, an incorporeal hereditament, the fee remaining in the grantor. Cincinnati, etc. Co. v. Geisel, 119 Ind. 77. “A grant of a ‘way’ or the privilege of a highway, does not convey the soil or any interest in it.” Jones on Basements s. 208. “A-grant of right of way to a railroad company is the grant of an easement merely, and the fee remains in the grantor.” Idem. s. 211. “The grant of a right of way does not convey the soil.” Home v. Richards, 4 Call 441. ' “If the deed does not in terms convey the land or soil covered by the way, but merely a way in connection with the land conveyed, the grantee takes no interest or estate in the soil of such way.” Jones on Basements s. 207. “The conveyance of a right of way conveys an easement only.” 2 Lewis, Emminent Dom., s. 291.

As antagonizing this position as to the effect of the words “right of way” we are cited the case of I. P. C. Ry. Co. v. Rayl, 69 Ind. 429, and Chicago, T. & M. Ry. Co. v. Fitterington, 31 Am. St. R. 39, and Keener v. U. P. Ry. Co., 31 Fed. 126. These cases do not apply. No question arose in them as to the real title conferred, or the right to take minerals. In the first case the question was the width of the right of way; in the second, whether the title passed so as to be beyond defeasance by the condition of the deed; and in the third, as to whether the land or only the track should be taxed to the company. In the second case we do not know the words of grant or the subject granted, and the third was not a grant, but a condemnation. It is said that we announced contrary law in Watts v. Ry. Co., 39 W. Va. p. 204, by simply saying, “The grant in this case was of the fee of the land.” So it was there, the land itself being granted, but not in this case. This was said in speaking of damages to the owner’s private way. It did not involve the right of the railroad 'Company to take oil or other minerals. Whether when a grant is in words a grant of the very land itself for the construction of a railroad, the company can take oil or other minerals not necessary in the operation of the road, is not involved in this case, and we do not decide that point, though speaking for myself, I think it cannot do so, to the prejudice of the grantor. In this case the question is whether the comjjany can, under a deed granting, not the land, but a right of way, take oil to the harm of the grantor’s other land. It will be noted that most of the deeds above referred to contained language of actual grant of actual land, and yet the presence of the words “right of way,” or the declaration that the grant was for railroad purposes, induced the courts to hold that they conferred only an easement. The agreement in this case does not grant land in its granting clause, but only right of way.

Another very influential consideration is that the agreement declares that the purpose of the concession is for the construction of a railroad, which shows that merely an easement was intended. Where the granting clause declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement only, though it be in the usual form of warranty deed. J ones on Easement s. 212. Where the deed grants all the grantor’s right, title and interest to land, “for use of a plan!?; road.” only an easement passes. Robinson v. Missisquoi R. Co., 59 Vt. 426, 30 Am. & Eng. Railroad Cas. 299. So where the conveyance was for a park. Flaten v. City, 51 Minn. 518. A grant of right of way for “all purposes connected with the construction, use and occupation of said railway,” was held not to pass a fee or give right to take sand'to build a roundhouse. Vermilya v. Railroad, 55 Am. R. 279, 66 Iowa 606.

Thus, it seems clear that the face of the agreement plainly speaks the grant of a mere easement, without ambiguity. But suppose we could say that the instrument is ambiguous. When we place ourselves in the situation of the parties, and reflect that they met only to contract for a right of way, that such was the sole design of the company, that the paper so declares on its face, that such was the moving purpose, that the company did not dream of acquiring oil, or of using the land in the oil business, we cannot hesitate for a moment to conclude that merely a right of way was in the contemplation of the parties. We need no oral evidence for this; the writing itself so speaks. The law allows, requires us to take into consideration what all these circumstances show must have been the purpose of the parties. Nash v. Towne, 5 Wall. 689; Jones on Easements s. 289; Barlow v. Chicago, etc. Co., 29 Iowa 276; Robinson v. Missisquoi, 30 Am. & Eng. Railroad Cas. p. 301.

But great and decisive import is given by counsel for the railroad company to the clause whereby "Uhl agreed to “execute in due farm of law a deed conveying to said company in fee simple the land hereinbefore described.”

Now, this is to be explained on two plausible theories consistent with our holding. One is that the parties regarded the instrument as only a preliminary executory agreement, and contemplated a formal deed to more fully describe the strip of land, or with other consistent provisions. This is shown by the fact that they gave the name of “agreement” to the paper, and also by the words “in due form of law.” So viewing it, we would say that this provision looked forward to a deed for just what the agreement had already in its vital clause stipulated for. We would not make this clause enlarge the estate when both clauses can stand together in harmony. If there should be a future deed, it is true it would have to be in fee simple, that is, convey a fee in an easement, a right of way -in fee simple, an incorporeal hereditament; for “a fee simple may be had in incorporeal as well as in corporeal hereditaments,” by elemantary law. 1 Wash. Real Prop. 82. This document contains the word “grant,” and is all sufficient to pass title; but it was thought that a more formal instrument might in time be wanted, and it was for caution put in, that is the clause in question, as is frequently done. In conveyancing it is common, and is called a covenant for further assurance. The second theory is that if this paper were viewed as a conveyance, not simply an execu-tory instrument, then this clause would be regarded as the old common law covenant of further assurance, meaning that if any further deed should be needed to further or better assure what the instrument had already, in its granting clause, conferred, by reason of some informality, it would be executed. Discussing this covenant Rawle on Covenant for Title, 104, says that the purchaser’s right under it may depend on the estate conveyed, and that when the estate conveyed is a limited estate, this covenant will not require the conveyance of a greater estate. Thus, as the prior clause, the vital operative one, had only given a right of way, this clause only contemplated a further deed for that. Our Code, chapter 72, section 18, limits such a covenant to the land conveyed in the granting clause. This is consistent with the well known law that a warranty is a dependent covenant, and applies only to the estate granted, and cannot increase it. Hull v. Hull, 35 W. Va. 155. We cannot say that one clause concedes one estate, the other another. If the intention was to pass the corpus, why not make the instrument do it then? Covenant for further assurance apply only to the estate granted. We must look at the whole paper to see what it means and cannot disregard the first clause passing only a right of way, and make the other clause pass the soil and all minerals in it. In deeds the .first clause prevails generally over the later, and surely, a later clause of more further assurance would not emasculate and predominate over the prior granting clause, but just the reverse. As to wills the rule has ever been that regardless of form or orderly parts, we must look at the real intention; but this has not been the case in the- construction of deeds. Deeds have orderly parts, technical words of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed often defeating the manifest intention. Modern construction, however, has loaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills. Humphrey v. Foster, 13 Grat. 633; Mauzy v. Mauzy, 79 Va. 537; Lindsey v. Eckels, (Va. 1) 901, show this to be the rule in Virginia; and Hurst v. Hurst, 7 W. Va. 289; and Goldsmith v. Goldsmith, 46 Id. 426; McDougal v. Musgrave, 46 Id. 509; and Bank of Berkeley Springs v. Green, 45 Id. 171, 174, show this to be the rule in West Virginia. The Supreme Court of New Hampshire in Webster v. Atkinson, 4 N. H. 21, says: “The construction of a deed must be made upon the entire instrument, and be such that the whole deed and every part of it may take effect, and one part must be construed by another, so that all parts may agree.” Such is the general law of the country. 1 Devlin, Deeds, s. 836; Bodine v. Arthur, 91 Ky. 53, 34 Am. St. R. 162; Bassett v. Budlong, 77 Mich. 338, 18 Am. St. R. 404. For instance, deeds generally require the word “grant,” or the words “bargain and sell,” or some technical word suitable to the character of the conveyance; such is formal conveyancing; but the word “convey” is now held to be equivalent to the word “grant” even at common law. Chapman v. Charte, 46 W. Va. 769; Lambert v. Smith, 9 Oregon 185; Patterson v. Carneal, 3 A. K. Marshall 618, 13 Am. Dec. 208; 4 Kent, Com. 491; 2 Lomax Dig. 81; 2 Minor’s Inst. 780. Kent there says that any word to show intention will do. See Flaten v. City, 51 Minn. 521. As before stated., we must look at the whole paper, and not allow the words “fee simple” to defeat the plain intention spoken by the recital of the deed as to the occasion and aim of the deed, the construction of a railroad, and the language of the clause granting right of way. If. there were repugnancy in the parts of the instrument specified above, we would be compelled by law to make “repugnant words yield to the purpose of the grant, where such purpose is clearly ascertained' from the premises of the deed.” Goldsmith v. Goldsmith, 46 W. Va. 426. “The effect of language in. a deed is to be gathered from the whole of it, not disjointed parts, so as to give effect to the whole. The intention of the grantor, as derived from the deed itself, should be sought after, and if discovered, should be carried into effect, if it can be done consistently with rules of law.” Allemong v. Gray, 92 Va. 216; Hurst v. Hurst, 7 W. Va. 289; 17 Am. & Eng. Ency. L. (2 Ed.) 7.

But in fact there is not the slightest conflict between the clauses in question, and this for the reason that reading the words “fee simple” with othér parts .of the paper, they mean a •conveyance of a fee simple right, an easement in fee simple, an incorporeal fee.

The authorities above given are ample to sustain this decision ; but we could dispense with them, and cite one single case as conclusively and fully supporting us, because it is a decision of our highest court upon an exactly similar deed to the same company. Pugh made a similar deed, or agreement, and the railroad company leased its right of way land to Logan, for the purpose of boring for oil, and he was boring for oil when Lockwood, to whom the Pugh land had been leased for oil purposes, asked an injunction against Logan in the Circuit Court of the United States for the District of West Virginia, to restrain Logan from operating for oil upon the right of way land, and thereby draining the adjoining land. The circuit court denied the injunction, and the case went to the Circuit Court of Appeals for the Fourth Circuit, which reversed the circuit court, and held that the deed intended to pass only a right of way, and that the company took only an easement in the land; that the agreement having been prepared by the railroad company, any doubt as to its true meaning should bo solved adversely to the company, and not be construed most favorably to the grantee under the general rule; and the covenant to execute a deed conveying the land in fee simple, being a dependant covenant, and the estate or interest conveyed by the agieement being limited to an incorporeal hereditament, the operation of said covenant is necessarily restricted by the granting clause, and cannot require the conveyance of a greater estate. Lockwood v. Ohio R. Co., 103 Fed. R. 243. Application was made to the United States Supreme Court for a certiorari, but it was refused. 180 U. S. 637.

It is hardly worth while to refer to the argument that our statute law governs the case. The form of deed given in section 1, chapter 72, Code, is referred to, together with the provision of section 2, that “every such deed conveying land shall unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor in or to such land/’ That is so, provided the deed does convey the land itself; but if it convey only an easement, or other particular, limited or restricted estate, it is not so. The word “grant” in the form referred to must have a thing for it to operate upon, a thing in the objective case, and its operation is limited to the thing specified as granted, the thing shown by the whole, deed to have been intended to be granted, and if that is only a right of way, the word “grant” passes that only.

This construction takes from the company nothing that justly belongs to it. Its right of way is full and complete. Practically its fee simple right of wajr shuts out Uhl, because it has sole and exclusive right to actual, physical possession for all railroad purposes, with which Uhl can in no manner interfere. Jackson v. Rutland, etc. 60 Am. Dec. 246; Troy & Boston R. Co. v. Potter, 1 Am. R. 325; Jones on Easements s. 393. But the company and Logan want to divert Uhl’s grant to a purpose foreign to its use for railroad purposes. Authority holds that a railroad company cannot use its right of way for purpose foreign to its legitimate corporate business, to carry on other business. Jones on Easements s. 382. I do not intend to discuss or define on this point, and will only say that though strangers could not, but only the State could, object to a misuse of the charter to do business ultra viras, it is plain and just that Uhl, the owner of the body of the land covered by the right of way, and the full owner of the adjoining land, can object to a use of tbe right of way land for oil purposes, which, use will entail irreparable damage upon him by drainage of the oil from his adjoining land. He has such an interest in the proper use of the railroad strip as will enable him to avert such injury. Therefore, we affirm the order overruling the motion to dissolve the injunction, and remand the case for further proper proceedings.

Affirmed.