Brightwell v. International-Great Northern R. Co.

• Decision Date: 21 April 1932
• Docket Number: No. 6095.,6095.
• Citation: 49 S.W.2d 437
• Parties: BRIGHTWELL et al. v. INTERNATIONAL-GREAT NORTHERN R. CO. et al.
• Court: Texas Supreme Court

49 S.W.2d 437

BRIGHTWELL et al. v. INTERNATIONAL-GREAT NORTHERN R. CO. et al.

No. 6095.

Supreme Court of Texas.

April 21, 1932.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by W. J. Brightwell and others against the International-Great Northern Railroad Company. To review a judgment of the Court of Civil Appeals [41 S.W.(2d) 319] affirming judgment for defendant, plaintiffs bring error.

Affirmed.

Young & Wynne, of Henderson, and Jack T. Life, of Athens, for plaintiffs in error.

Andrews, Streetman, Logue & Mobley Sewell, Taylor, Morris & Garwood, and E. J. Fountain, Jr., all of Houston, for defendants in error.

Barkley & Webb, of Houston, amicus curiæ.

CRITZ, C.

This suit was instituted in the district court of Anderson county, Tex., by W. J. Brightwell et al. against International-Great Northern Railroad Company for an injunction to restrain the railroad company from drilling or permitting to be drilled any well for oil or gas on a certain portion of its right of way in Rusk county, Tex. Brightwell et al. sought a temporary injunction pending the litigation, and prayed that on final hearing such temporary injunction be made permanent. The application for the temporary injunction was heard by the court without the intervention of a jury on an agreed statement of facts. At the conclusion of the hearing and argument thereon the trial court denied the temporary injunction. Brightwell et al. appealed to the Court of Civil Appeals for the First District, at Galveston, which court in all things affirmed the judgment of the district court. 41 S.W.(2d) 319. Brightwell et al. bring error.

It is unnecessary to make any extended statement of the facts. It is sufficient to say that the result of this suit must depend on the construction to be given a certain deed from one J. M. Thompson to International Railroad Company. The deed is as follows:

"Know all men by these presents,

"That for and in consideration of the enhanced value to be given, and is contemplated to arise to my Lands and other property by the location and construction of the International Railroad, and for the further consideration of One Dollar, to me in hand paid, the receipt whereof is hereby acknowledged, J. M. Thompson of the County of Rusk, and State of Texas, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release to the International Railroad Company, a strip of (200) Two Hundred feet in width of land over the tracts of land particularly described as follows, viz: a tract in Rusk County known as Six Hundred and Twenty Eight acres of E. G. Sevier Survey and One Hundred and fifty acres of the W. P. Chism League over and upon which the said Company has built or may hereafter build its Railroad and also the right to have the same strip of land in width, over and upon any other lands now owned or which may be hereafter owned by me in this State, through which said Railroad has been, or may be hereafter built; together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in anywise incident or appertaining: To have and to hold, all and singular, the said premises unto the said International Railroad Company, or its assigns, forever.

"And for the considerations aforesaid, as herein set forth, I do further grant to said Company such earth, material, timber and rock as may be found on my lands herein mentioned, and granted herein as right-of-way which may be required for the construction of said Railroad; and I do hereby grant to said Company a full release from all claims against said Company for damages that may be sustained by their work in the construction and for the right of way of said Railroad over any of the said lands."

The words in italics, "and granted herein as right-of-way," are interlined in the original deed in the individual handwriting of some person, and the other italicized words are also in the handwriting of some person, but appear in blank spaces left in the printed deed which is on a printed form.

It is conceded by all parties that if the above deed conveys a fee-simple title the injunction here sought should be refused, but if it conveys an easement or right of way only it should be granted. It thus appears that the railroad company contends that the deed conveys the fee, while Brightwell contends that it conveys only a right of way or easement.

It is the settled law of this state that a railroad, when it secures its right of way by condemnation proceedings, acquires a mere easement, but it may secure and hold a fee-simple estate in the land across which it constructs its road. Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453; Right of Way Oil Company v. Gladys City O., G. & M. Co., 106 Tex. 94, 157 S. W. 737, 51 L. R. A. (N. S.) 268; Kynerd v. Hulen (C. C. A.) 5 F. (2d) 160. Certiorari was denied by the United States Supreme Court in the last-mentioned case. 269 U. S. 560, 46 S. Ct. 20, 70 L. Ed. 411. It is also the rule in this state that when a railroad company owns the fee its right to use the land is as unrestricted as that of an individual owner, so long as the state does not complain. Stevens v. Galveston, H. & S. A. Ry. Co. (Tex. Com. App.) 212 S. W. 639.

From the above rules it is evident that if the deed above quoted conveys a fee-simple title to the railroad company such company, its successors, and assigns, have the same right to exploit thereon for oil or gas that an individual holding under the same character of deed would have.

If the character of the estate conveyed by the instant deed were an open one in this state it would present a question of some difficulty; but to our minds this court has already foreclosed it in favor of the construction that the deed conveys the fee, and not a mere right of way or easement. Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453, 454. Right of Way Oil Co. v. Gladys City, etc., 106 Tex. 94, 157 S. W. 737, 51 L. R. A. (N. S.) 268.

In the Calcasieu Case, supra, our Supreme Court had before it for construction the following deed: "Know all men by these presents: That for and in consideration of the enhanced value to be given and contemplated to arise to my lands and other property by the location and building of the Houston and Texas Central Railroad, and for the further consideration of One Dollar, to me in hand paid, the receipt whereof is hereby acknowledged, I, James Manor, of the County of Travis, and State of Texas, have granted, bargained, sold and...