Abercrombie v. Simmons

• Decision Date: 10 June 1905
• Docket Number: 14,114
• Parties: JOHN H. ABERCROMBIE v. J. N. SIMMONS et al
• Court: Kansas Supreme Court

81 P. 208

71 Kan. 538

JOHN H. ABERCROMBIE v. J. N. SIMMONS et al

No. 14,114

Supreme Court of Kansas

June 10, 1905

Decided January, 1905.

Error from Mitchell district court; RICHARD M. PICKLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVEYANCES--Description not Indefinite. A railroad company purchased a strip of land for a right of way, the line of which had been surveyed and staked out but no part of the railroad had been built, and in the deed the land was described as a part of a certain quarter-section lying within fifty feet of the main track of the railroad. Within a few days after the execution of the deed a map and profile of the railroad was made by the company, and subsequently filed. Held, that the deed was not void because of indefiniteness in the description.

2. CONVEYANCES--Doubtful Description--Rule of Construction. In construing a doubtful description in a conveyance the court will keep in mind the position of the contracting parties, and the circumstances under which they acted, and will interpret the language of the instrument in the light of these circumstances.

3. CONVEYANCES--Grant for Right of Way--Limitation. An instrument which is in form a general warranty deed, conveying a strip of land to a railroad company for a right of way, will not vest an absolute title in the railroad company, but the interest conveyed is limited by the use for which the land is acquired, and when that use is abandoned the property will revert to the adjoining owner.

Frank A. Lutz, and F. J. Knight, for plaintiff in error.

Burnham & Dashiell, for defendants in error.

JOHNSTON, C. J. All the Justices concurring. CLARK A. SMITH, J., not sitting, having been of counsel.

OPINION

JOHNSTON, C. J.

This was an action of ejectment to recover a strip of land 100 feet wide that had been obtained from Joseph Simmons by the Chicago, Kansas & Western Railroad Company, and subsequently sold by the railroad company to John H. Abercrombie. In 1887 the railroad company surveyed and staked out a route for a railroad through Mitchell county, and on July 13 of that year, when about to begin construction of the railroad over the land owned by Joseph Simmons, it purchased from him the strip of land that is the subject of this action. The conveyance that he made was in form a general warranty, wherein the property was described as "all the land in the southwest quarter of section fifteen (15), township nine (9) south, of range seven (7) west, lying within fifty feet of the center line of the main track of said railroad, and containing six and twenty-three-hundredths (6.23) acres, more or less." A week later--on July 20, 1887--the railroad company made a map and profile of the route intended to be adopted, which was subsequently filed in the office of the county clerk. The railroad was never constructed, nor even graded, over the Simmons land. The entire quarter-section was enclosed and cultivated by Joseph Simmons while he lived, and it has remained in the exclusive possession of J. N. Simmons and Laura Simmons, who became the owners of the tract. The railroad company, however, paid taxes on the strip of land until April 28, 1898, when it executed a deed purporting to convey the strip to the plaintiff, describing it as it was described in the deed from Simmons to the railroad company.

Later, in 1903, the plaintiff asserted a claim of ownership to the strip of land through the quarter-section, and as his claim was denied he brought this proceeding to enforce it. The trial court found upon the facts, which were mainly agreed to, that the strip of land was conveyed by Simmons and received by the railroad company for use as a right of way for a railroad, and that the plaintiff was not entitled to recover.

It is insisted by the plaintiff that the railroad company acquired an absolute title to the strip of land, and that nothing less was conveyed to him. The defendants contend, first, that the deed of Simmons to the railroad company was so indefinite in the description of the property conveyed as to be defective, and, second, that if the description be held to be sufficient and the instrument valid it did not convey anything more than a right of way, and hence when it was not used for that purpose it reverted to the original owner, or to those holding under him.

It is claimed that it was impossible to locate or identify the land from the description given; that the description of a part of a quarter-section "lying within fifty feet of the main track of the railroad" furnished no means of identification, where, in fact, no railroad had been built. The agreed facts, however, show that prior to the execution of the deed the company contemplated the construction of a railroad over this land, and had actually surveyed and staked out a route and line. The map and profile of the route was in the course of preparation, and was completed a few days later, and this was the one that was filed with the county clerk. The company was negotiating for land upon which to construct and operate a railroad. It had marked out on the face of the land the line or track where it proposed to build. The owner sold it to the company for that purpose, and obviously both parties contracted with reference to these facts. In construing a doubtful description in a conveyance the court must keep in mind the position of the contracting parties and the circumstances under which they acted, and interpret the language of the instrument in the light of these circumstances. When so construed we may fairly say that, as the only way of locating the strip was by a resort to the line that had been surveyed and staked out by the company as the statute authorized, the parties contracted with reference to this survey and it may be looked to as a part of the description. Under the principle that that will be considered certain which can be made certain we can look not only to the survey but also to the map and profile made by the company.

In D. M. & A. Rly. Co. v. Lockwood, 54 Kan. 586, 38 P. 794, the court considered a description in a deed that was attacked for indefiniteness, and which purported to convey fifty feet on each side of a center line of a route that had been surveyed, staked, and located. It was said that "the law will not declare a deed void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain," and following this rule the court held the deed to be valid. (Tucker v. Allen, 16 Kan. 312; Seaton v. Hickson, 35 id. 663, 12 P. 22; Thompson v. Motor Road Co., 82 Cal. 497, 23 P. 130; Penna. R. R., Appellant, v. Pearsol et al., 173 Pa. 496, 34 A. 226; Crafts & another v. Hibbard & another, 4 Metc. 438; Oxford v. White, 95 N.C. 525; Horton v. Murden, 117 Ga. 72, 43 S.E. 786; Armstrong v. Mudd, 49 Ky. 144, 10 B. Mon. 144, 50 Am. Dec. 545; Lohff v. Germer, 37 Tex. 578; McPike v. Allman, 53 Mo. 551.)

Was the interest that the railroad company acquired by the deed one that it could convey to plaintiff? The general rule is that in the absence of charter or statutory restrictions corporations may take, hold and convey land for any purpose not inconsistent with the objects for which they were created. It is competent for the legislature to prescribe the purpose for which land may be acquired and held by corporations, and in this state the legislature has conferred on such corporations the power "to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance and accommodation of its railway." (Gen. Stat. 1901, § 1316.) Aside from this provision there is in the same section authority given to enter upon the lands of others for the purpose of selecting and surveying a route for a proposed railway, and in that connection to lay out a road not exceeding 100 feet in width, and a greater width where the proper construction of the road requires it. It is provided, too, that a map and profile of the route intended to be adopted shall be made, and that notice shall be given to all occupants of lands on the designated route that have not been purchased or donated. (Gen. Stat. 1901, §§ 1318, 1319.) There is another provision for obtaining land for a right of way by compulsory process under the power of eminent domain. (Gen. Stat. 1901, §§ 1359-1365.)

The statutes recognize that land for a right of way may be acquired by purchase as well as by compulsory proceedings. When so purchased for that purpose does the railroad company hold a higher or better right than where it is acquired by virtue of eminent domain? May a railroad company purchase a strip of land extending a great distance through the country and over many farms, abandon the enterprise, and then sell the strip to those who will put it to a...