Poppleton v. Village Realty Co., Inc.

• Decision Date: 07 July 1995
• Docket Number: No. S-93-892,S-93-892
• Citation: 535 N.W.2d 400,248 Neb. 353
• Parties: Samuel K. POPPLETON and William S. Poppleton III, Appellants, v. VILLAGE REALTY CO., INC., a Nebraska Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 400

535 N.W.2d 400

248 Neb. 353

Samuel K. POPPLETON and William S. Poppleton III, Appellants, v. VILLAGE REALTY CO., INC., a Nebraska Corporation, et al., Appellees.

No. S-93-892.

Supreme Court of Nebraska.

July 7, 1995.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party or parties against whom the judgment is granted and gives such party or parties the benefit of all 2. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

reasonable inferences deducible from the evidence.

3. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law.

4. Equity: Quiet Title. A quiet title action sounds in equity.

5. Equity: Appeal and Error. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court.

6. Deeds. Ordinarily, in the event of repugnancy and inconsistency between grant, habendum, and description clauses of a deed, the granting clause will prevail.

7. Estates. A condition subsequent attached to a fee simple estate which restrains alienation of the property conveyed is void whether such restraint is direct or indirect.

8. Estates. Neb.Rev.Stat. § 76-2, 104(5) (Reissue 1990) does not apply when conditions subsequent attached to a fee simple estate restrain alienability because such conditions subsequent are void ab initio.

David L. Buelt, of Ellick, Jones, Buelt, Blazek & Longo, Omaha, for appellants.

Richard E. Crocker and Martin P. Pelster, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, P.C., Omaha, for appellee Union Pacific Railroad Company.

WHITE, C.J., CAPORALE, FAHRNBRUCH, WRIGHT, and CONNOLLY, JJ.

FAHRNBRUCH, Justice.

Samuel K. Poppleton and William S. Poppleton III appeal a summary judgment in which a district court refused to quiet title in them of real estate formerly used as a railroad right-of-way.

The district court found that the Poppletons and all persons claiming under them, or either of them, have no estate, right, title, lien, or interest in or to the real estate involved.

The court quieted title to the real estate involved herein in the defendant Lyman-Richey Corporation subject to the terms, provisions, and mineral reservation contained in a deed from Union Pacific Railroad Company to Village Realty Co., Inc., dated February 24, 1992, as corrected by an instrument dated May 12, both of which were filed with the Douglas County register of deeds.

We affirm the holdings of the district court for Douglas County.

ASSIGNMENTS OF ERROR

In substance, the Poppletons contend that the trial court erred in (1) failing to recognize that a specific statute protects the Poppletons' reversionary interest; (2) failing to recognize that the reversionary interest claimed by the Poppletons is protected by due process and contract clause requirements under the federal and state Constitutions; (3) finding that the appellees were entitled to a summary judgment; (4) failing to receive certain evidence at the hearing on the appellees' motion for summary judgment; (5) failing to properly consider the contractual nature of the deed which reserved a reversionary interest to the Poppletons; (6) relying upon inapplicable and noncontrolling case law in reaching its decision in this case; and (7) not finding the appellees were estopped by their prior course of conduct from asserting their present legal positions.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party or parties against whom the judgment is granted and gives such party or parties the benefit of all reasonable inferences deducible from the evidence. See, Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995); Keefe v. Glasford's Enter., 248 Neb. 64, 532 N.W.2d 626 (1995).

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Molt, supra; Keefe, supra.

The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law. Keefe, supra; Wagner v. Pope, 247 Neb. 951, 531 N.W.2d 234 (1995).

Since this is a quiet title action, it sounds in equity. See, State v. Union Pacific RR. Co., 241 Neb. 675, 490 N.W.2d 461 (1992), opinion modified 242 Neb. 97, 490 N.W.2d 461 (Union Pacific I and II ); Drew v. Walkup, 240 Neb. 946, 486 N.W.2d 187 (1992). On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court. Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995).

FACTS

Viewing the evidence in a light most favorable to the Poppletons and giving them the benefit of all reasonable inferences deducible from the evidence, the facts of this case are as follows:

The Poppletons are the great-grandsons and only heirs of Andrew J. Poppleton. In November 1885, Andrew Poppleton conveyed to the Omaha Belt Railway Company by warranty deed a strip of real estate located in Douglas County. In the deed, Poppleton's wife, Caroline, relinquished her right to dower in the property conveyed to Omaha Belt Railway. Following the habendum clause, the 1885 deed contains a clause that "[i]n case the land conveyed in this deed shall be abandoned for railway purposes by the grantee or its successors, the same shall revert to the grantor, his heirs or assigns...."

The legal description of the land involved in this case as described by the trial court is:

"Part of the abandoned Missouri Pacific Railroad right-of-way lying within the Southwest 1/4 of the Southwest 1/4 of Section 17, Township 15 North, Range 13 East of the 6th P.M., Douglas County, Nebraska and within the Northwest 1/4 of the Northwest 1/4 of Section 20, Township 15 North, Range 13 East of the 6th P.M., Douglas County, Nebraska all more particularly described as follows: Beginning at the point of intersection of the South line of California Street and the West line of said abandoned railroad; Thence South (assumed bearing) 1258.70 feet on the West line of said abandoned railroad; Thence South (assumed bearing) 1258.70 feet on the West line of said abandoned railroad [sic]; Thence S89? 30'00"' E 100.00 feet on a line 1298.70 feet South of and parallel with the South line of West Cuming Addition, as surveyed, platted and recorded in said Douglas County to the East line of said abandoned railroad; Thence North 1258.70 feet on the East line of said abandoned railroad to the South line of California Street; thence N89? 30'00"' W 100.00 feet on the South line of California Street to the point of beginning."

On January 19, 1910, Omaha Belt Railway, by quitclaim deed, conveyed its interest in the land to the Missouri Pacific Railway Company. On April 1, 1984, Missouri Pacific quitclaimed its interest in the land to Union Pacific, one of the defendants in this lawsuit.

On February 24, 1992, Union Pacific, by quitclaim deed, conveyed the property to Village Realty, subject to certain terms, provisions All parties to this lawsuit agree that the property here in question has not been used for railroad purposes since the conveyance from Union Pacific to Village Realty in 1992. The Poppletons contend that such lack of use constitutes abandonment of Union Pacific's interest and that fee simple absolute title vested in the Poppletons as heirs of Andrew Poppleton pursuant to their "reverter" clause in the 1885 deed.

and mineral reservation contained in the conveyance. On July 22, Village Realty conveyed by warranty deed its interest in the property to Lyman-Richey.

Union Pacific filed a motion for summary judgment contending that the...