Atkin v. Westfall

• Citation: 246 Iowa 822,69 N.W.2d 523
• Decision Date: 05 April 1955
• Docket Number: No. 48686,48686
• Parties: Hazel ATKIN, Appellee, v. Lewis J. WESTFALL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 523

69 N.W.2d 523

246 Iowa 822

Hazel ATKIN, Appellee, v. Lewis J. WESTFALL, Appellant.

No. 48686.

Supreme Court of Iowa.

April 5, 1955.

Ries & Osmundson, Iowa City, for appellant.

Hamilton & Cahill, Iowa City, for appellee.

GARFIELD, Justice.

This is an equity action to quiet title to a strip of ground 100 feet wide and nearly 1,000 feet long, containing about two acres, abandoned as a railroad right of way in 1938. Following trial the district court quieted title in plaintiff. Defendant has appealed. We affirm the decree.

The strip in controversy extends due east from the Iowa river which flows southeast. Plaintiff, Hazel Atkin, owns a narrow strip about 175 feet wide at its south end extending northwest along the east bank of the river from the west end of the abandoned right of way. The east line of this strip of plaintiff's land, except the south 200 feet thereof, is a road generally parallel to and east of the river. Plaintiff also owns a strip of ground abutting the right of way on the south thereof which is substantially the same size and shape as the right of way. Thus plaintiff's land is about L-shaped with the angle of the L near the west end of the strip in controversy.

Defendant, Lewis J. Westfall, owns blocks E and D in a village called River Junction, along the north side of the right of way. The west line of block E joins the east line of the south 200 feet of the portion of plaintiff's land that extends northwest along the river. Defendant also owns land immediately north of blocks E and D. The west line of defendant's land north of blocks E and D is the aforementioned road which parallels the river. Defendant's east line goes due north from the east end of the abandoned right of way and of plaintiff's land abutting the right of way on the south.

The strip in controversy was deeded by Henry Walker in 1878 to Burlington, Cedar Rapids & Northern Railway 'To have, hold and enjoy * * * for any and all uses and purposes in any way connected with the construction, operation, preservation, occupation and improvement of the said Railway.' Previously, in 1873, John Porter, Walker's predecessor in title, deeded to the railway blocks D and E which defendant now owns. When Walker deeded to the railway in 1878 he owned the entire 40-acre tract from which the right of way was taken, except blocks D and E. Subsequently, in 1915, this 40-acre tract, subject to the right of way, except 4 1/2 acres south of the strip now owned by plaintiff along the south side of the right of way, came to be owned by E. D. Porter and at his death by his widow Anna.

February 26, 1943, the executor of Anna Porter's estate conveyed to plaintiff by executor's deed, duly approved by the court, the land heretofore described as owned by plaintiff, together with the land on which the railroad right of way had been located. On the same date, in the same manner, the executor conveyed to defendant blocks D and E and the other land north thereof heretofore described as owned by him. The deed to defendant specifically excepts by description the land conveyed to plaintiff, including the ground previously used for the railroad right of way.

In the meantime, late in 1938, as before indicated, the Rock Island railroad, successor to the railway to which the right of way was deeded, tore up its track, both rails and ties, and abandoned its line from the town of Lone Tree west to the Iowa river, including the strip in controversy. At Lone Tree, next station to the east, a turntable was installed in 1940 and west bound trains stopped there and turned around rather than to continue west across the Iowa river as they did down to 1938.

The strip in controversy is very rough and cannot be farmed. Its principal value is in the trees on it which could be used for posts. We will later refer to some other facts.

I. It is of course true, as defendant asserts, plaintiff must recover on the strength of her own title, not on the weakness of defendant's. Cheney v. Womans Baptist Foreign Missionary Society, 243 Iowa 134, 137, 50 N.W.2d 651, 652, and citations; State v. Nichols, 241 Iowa 952, 970, 44 N.W.2d 49, 59, and citations; Ferrel v. Stinson, 233 Iowa 1331, 1341, 11 N.W.2d 701, 706; 74 C.J.S., Quieting Title, § 17b, pages 41, 42. However, it is sufficient that the interest of a plaintiff in possession is superior to that of defendant. Cheney case, supra, and citations. The above C.J.S. citation thus expresses virtually the same rule: '* * * plaintiff need not show a title good as against the whole world, but only as against defendant.'

II. The deed from Walker to the railway in 1878 was not a fee simple conveyance. The strip of land was conveyed, as we have said, 'To have, hold and enjoy * * * for any and all uses and purposes * * * connected with the construction (and) operation * * * of the said Railway.' As we held in Keokuk County v. Reinier, 277 Iowa 499, 503, 288 N.W. 676, 678, where it is conceded there was a similar conveyance, 'The grant was limited to a specific purpose, and that purpose having been abandoned, all right, title, and interest of the railroad in and to the land was thereby divested. It is our holding that the deed conveyed nothing greater than a right of way across the forty acres for the purpose specified in the deed, * * *.'

The above language is quoted with approval in Brugman v. Bloomer, 234 Iowa 813, 816, 13 N.W.2d 313, 314. See also 25 Iowa Law Review 685. For other decisions as to the effect of deeds to railroads see annotations 84 A.L.R. 271, 132 A.L.R. 142.

III. It is competent for the legislature to say to whom land occupied and used by a railroad shall revert when abandoned. Smith v. Hall, 103 Iowa 95, 97, 72 N.W. 427, Ladd, J., and citations. Our legislature has spoken in the matter. Section 473.1, Codes 1950, 1954, I.C.A., provides: 'Relocation of railway--Such part of a railway right of way as is wholly abandoned for railway purposes by the relocation of the line of railway, shall revert to the persons who, at the time of the abandonment, are owners of the tract from which such abandoned right of way was taken.'

Section 473.2 states: 'Failure to operate or construct railway--If a railway, or any part thereof, shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased and has not been in good faith resumed for eight years, the right of way * * *shall revert to the persons who, at the time of the reversion, are owners of the tract from which such right of way was taken.'

One or the other of these sections is applicable here. It would seem 473.1 applies more clearly than 473.2 does. The former section is applicable where part of a right of way is wholly abandoned for railway purposes by relocation of the line. There can be little question the part of the right of way here in controversy was wholly abandoned for railway purposes. As stated, the rails and ties were torn up. In a sense at least the abandonment was accompanied by relocation of the line. See in connection with what is just said Keokuk County v. Reinier, supra, 227 Iowa 499, 288 N.W. 676.

At the time of abandonment in 1938 either E. D. Porter or his surviving spouse Anna owned the tract from which the right of way was taken. The right of way therefore reverted to him or her at that time under 473.1. And plaintiff in turn became the owner thereof by the deed from Anna Porter's executor in 1943. Defendant acquired no interest in the right of way under the executor's deed to him since, as stated, the abandoned right of way was expressly excepted therefrom.

Section 473.2 applies where part of a railway is not used or operated for an 8-year period. The legislature evidently had in mind a distinction between abandoning part of a right of way by relocation of the line and failure to use or operate part of a railway for eight years. In the former event section 473.1 is applicable. In the latter event 473.2 applies.

The distinction between abandonment and nonuser of a property right is that intention to relinquish the right is a necessary element of abandonment. Thus mere nonuser does not of itself amount to abandonment. See Ward v. Incorporated Town of Clover Hills, 240 Iowa 900, 905, 38 N.W.2d 109, 112, and citations; McClain v. Chicago, R. I. & P. R. Co., 90 Iowa 646, 648, 57 N.W. 594, 595; Abens v. Chicago, B. & Q. R. Co., 388 Ill. 261, 57 N.E.2d 883, 887; 1 C.J.S., Abandonment, § 3b(2), page 10; 1 Words and Phrases, pages 56 et seq. and pocket supplement.

Apparently we have never before considered the exact distinction between Code sections 473.1 and 473.2 as now worded. And we find it unnecessary to do so now since we reach the same result under either statute. If we assume, without deciding, section 473.2 rather than 473.1 is applicable, the right of way would revert to the person who, at the time of the reversion (i. e., in 1946 at the end of the 8-year period of nonuser) owned the tract from which such right of way was taken. Plaintiff, not defendant, qualifies as such 'person.' It is clear blocks D and E, owned by defendant, are no part of the tract from which such right of way was taken.

As previously stated, blocks D and E were conveyed by John Porter to the railway in 1873. However, the right of way was not conveyed until 1878 by Walker, John Porter's successor in title. The tract from which it was taken is land south of blocks D and E. As between plaintiff and defendant, plaintiff has owned this tract since he acquired it by deed from Anna Porter's executor in 1943. Thus plaintiff's title to the disputed strip is superior to defendant's.

Our decision is entirely consistent with Brugman v. Bloomer, supra, 234 Iowa 813, 13 N.W.2d 313, relied on by defendant. There the grantor of the railroad right of way owned the land on both sides thereof. Here the grantor owned the tract that abutted the right of way only on the south. In the cited case,...