Brugman v. Bloomer

• Decision Date: 07 March 1944
• Docket Number: 46416.
• Citation: 13 N.W.2d 313,234 Iowa 813
• Parties: BRUGMAN v. BLOOMER et al. BLOOMER et al. v. BRUGMAN et al.
• Court: Iowa Supreme Court

13 N.W.2d 313

234 Iowa 813

BRUGMAN v. BLOOMER et al.

BLOOMER et al. v. BRUGMAN et al.

No. 46416.

Supreme Court of Iowa

March 7, 1944

Rehearing Denied May 6, 1944.

Thompson & Thompson, of Muscatine, for appellant.

Allbee & Allbee, of Muscatine, for appellees.

WENNERSTRUM Justice.

Plaintiff brought an action to quiet title to the entire portion of an abandoned railroad right of way, 200 rods long and 100 ft. wide, which contains 7.6 acres. This abandoned right of way lies between the plaintiff's land on the north and certain defendants' land on the south of it. The answering defendants denied plaintiff's ownership to the entire tract involved in this litigation and in a cross-petition asked that their title be quieted to that part of the abandoned right of way lying south of the center line of it. The trial court entered a judgment and decree quieting the title to the north half of the right of way in the plaintiff and the south half thereof in the answering defendants. The plaintiff has appealed.

The two original deeds conveying the right of way to the Muscatine Western Railway Company, the original grantee for right of way purposes, are the same except for minor variances and are in part, as follows:

"*** do by these presents give, remise, release, convey and quit claim to the said Muscatine Western Railroad Company for the purpose of constructing a railroad thereon, and for all the uses and purposes connected with the construction and use of said road, the right of way for said railroad over and through the following described tract, piece or parcel of land situated lying and being in the County of Muscatine and State of Iowa, bounded and described as follows: ***.

"To Have And To Hold the land above described, with the appurtenances unto said Muscatine Western Railroad Company, and their assigns, forever, for any and all uses in any way connected with the construction, preservation, occupation, operation and enjoyment of said railroad; Provided, However, that if the said Muscatine Western Railroad Company, or their assigns, shall at any time hereafter cease permanently to use said road, so to be constructed, and the same shall be abandoned, or the route thereof changed so as not to be continued over said premises, then and in that case the land hereby granted shall revert to the said grantor his heirs or assigns."

The railroad right of way was abandoned by the Chicago Rock Island &amp Pacific Railway Company, a subsequent grantee of the original holder of the right of way, here in controversy. This abandonment occurred in 1939. At that time the appellant entered into possession of this land. We are not concerned with whether the land in question has been abandoned for the necessary time required by statute, section 7862, 1939 Code in that the Chicago Rock Island & Pacific Railway Company, the last railroad holder of the right of way, filed in the trial court a disclaimer of any interest in the land involved in this action.

After the conveyance of the right of way to the original railroad grantee, subsequent conveyances affecting the land through which this right of way passed, described the land conveyed with the added statement, "excepting the right of way of the railway company." A subsequent conveyance of the land that was south of the railroad right of way described the land conveyed as follows: "*** lying south of the right of way of the Burlington Cedar Rapids & Northern Railway Company ***" and in subsequent conveyances relative to the land north of the right of way, the description is, in part, as follows: "*** lying north of said railroad right of way."

The question which is presented for our determination, is whether the appellant, the present owner of the land to the north of the abandoned right of way, is entitled to the entire tract. The present owner of the...