Carr v. Miller

• Decision Date: 02 February 1921
• Docket Number: 21133
• Citation: 181 N.W. 557,105 Neb. 623
• Parties: SAMUEL CARR ET AL., APPELLEES, v. MATT MILLER, APPELLANT
• Court: Nebraska Supreme Court

181 N.W. 557

105 Neb. 623

SAMUEL CARR ET AL., APPELLEES, v. MATT MILLER, APPELLANT

No. 21133

Supreme Court of Nebraska

February 2, 1921

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed and dismissed.

Reversed and the action dismissed.

Helsell & Helsell, Matt Miller and William Baird & Sons, for appellant.

Morsman & Maxwell, contra.

OPINION

CAIN, C.

This is an action in ejectment to recover a strip of land 100 feet in width and 970 feet in length, described in the petition, and located in the eastern edge of the city of Omaha on the west bank of the Missouri river. The case was tried upon the amended petition, the answer thereto, and plaintiffs' demurrer to divisions II, III, IV, V, VI, VII, VIII, and IX of the answer, and upon a stipulation between the parties that the allegations of fact contained in the amended petition and the answer thereto, subject to proper objections on the ground of immateriality irrelevancy, and incompetency, should be taken as true. The district court sustained plaintiffs' demurrer to the divisions of answer named, to which the defendant excepted and stood upon his answer. The cause then came on for decision by the court, a jury having been waived, and the court found that plaintiffs were the owners of the lands described in the amended petition and entitled to the immediate possession thereof. After the overruling of his motion for a new trial, defendant appealed to this court.

Under the stipulation of the parties, the amended petition and the answer thereto were settled as a bill of exceptions. There is therefore no disputed question of fact, and the question presented to us for decision is the construction of a certain instrument in writing executed on the 21st day of November 1899, between the East Omaha Land Company and the Omaha Bridge & Terminal Railway Company, which the appellant claims constitutes a conveyance of the lands in controversy in fee simple, and the appellees contend conveyed only as easement or a right of way in said lands, which was abandoned by the grantee upon its subsequent conveyance of the land to a private person.

Both parties hereto claim title to the premises in controversy through the East Omaha Land Company, which is conceded to have held the title in fee on November 21, 1899, and for many years prior thereto. On that date the land company executed the deed or instrument under consideration to the terminal company. On March 31, 1902, the land company mortgaged the premises, with other lands, to the Old Colony Trust Company, however, "subject to said agreement and deed dated November 21, 1899." On January 16, 1903, in the United States district court at Omaha, a decree was entered foreclosing this mortgage, but the terminal company was not a party to the suit, and hence was not affected thereby. On June 10, 1903, the master sold the lands to Grafton St. L. Abbott, who purchased in trust for the benefit of the bondholders, and he received a deed. On May 9, 1903, the land company conveyed to Abbott by deed. Abbott conveyed to himself and two associate trustees, and plaintiffs in this action are their successors. As the mortgage was expressly made subject to the deed of November 21, 1899, and the terminal company was not a party to the foreclosure proceedings, the legal situation is the same as if the land company had executed a deed direct to plaintiffs on May 9, 1903. On June 6, 1917, the terminal company conveyed the land in controversy to Samuel P. Elliott, who on October 3, 1917, by ordinary deed, conveyed it to the defendant herein.

The instrument of November 21, 1899, consists of eight typewritten pages. As the recitations of the instrument down to and including the granting clause are necessary to an understanding of the situation, as well as to the construction of the instrument, we set that part out in full, as follows:

"This indenture, made this 21st day of November, A. D. 1899, between the East Omaha Land Company, hereinafter called the Land Company, party of the first part, and the Omaha Bridge and Terminal Railway Company, hereinafter called the Terminal Company, party of the second part, corporations organized and existing under the laws of the state of Nebraska, Witnesseth:

"Whereas, the Land Company owns a tract of land comprising seventeen hundred (1,700) acres, more or less, located along the Missouri river between one and three miles northeasterly from the post office in the city of Omaha in the state aforesaid, which is more particularly shown upon the map hereto attached and made a part hereof; and,

"Whereas, the Land Company has expended several hundred thousand dollars, in improving said lands, by clearing the same, and laying out, grading and paving certain streets, and locating certain manufacturing establishments thereon, and preparing generally for the location of future industrial establishments; and,

"Whereas, the success of the plans of the Land Company depend largely upon adequate trackage facilities and connections for present and future industries and enterprises, which may be established upon its lands aforesaid; and,

"Whereas, to secure a proper system of trackage, the Land Company on the 1st of June, 1889, entered into a contract with the Union Pacific Railway Company for the construction and operation of a system of trackage upon said lands, under which that company did construct several miles of tracks thereon; and,

"Whereas on the 23d day of July, 1892, a contract was executed between the Interstate Bridge and Street Railway Company, predecessor of the Terminal Company, of the first part, the Land Company, of the second part, and Drexel & Company and John Lowber Welsh, bankers, of the third part, by the terms of which the Bridge Company agreed to construct and maintain a bridge across the Missouri river, and terminal tracks, in accordance with the schedule attached to said contract, which contract contained certain provisions requiring the Terminal Company 'to purchase of the Union Pacific Company all the tracks, franchises and rights of way, built on the land of the East Omaha Land Company, or duplicate them,' and which contract also contained certain provisions by which the Land Company agreed to make to the Bridge Company a conveyance 'of certain railway rights of way on and over the land of said Land Company, which said rights of way are to be the same as those heretofore contracted to be conveyed by the said Land Company to the Union Pacific Railway Company;' and,

"Whereas, in carrying out said contract the Terminal Company has constructed a bridge across the Missouri river, and also established certain extensive tracks and terminal facilities in connection therewith on both sides of the Missouri river and in the cities of Council Bluffs, Iowa, and Omaha, Neb., and has also purchased from the Union Pacific Railway Company the tracks built by that company upon the lands of the Land Company; and,

"Whereas, it is deemed best that the system of trackage for the lands of the Land Company shall consist of a belt line surrounding said lands, from which spur or side tracks shall extend north and south to and along the intersecting alleys, the same to be located along what is known as Avenue G, East Omaha, from the Nebraska meander line of the Missouri river, surveyed in 1856, to near the west approach of the Terminal Company's Missouri river bridge, thence northerly by suitable curves to what is known as Avenue M, East Omaha, thence west along Avenue M to the western limits of the lands of the Land Company. That from said belt line side tracks shall turn out north and south on suitable curves to the alleys which the Land Company may hereafter establish on its lands in accordance with its general plans:

"Now, therefore, in consideration of the premises and the building by the Terminal Company of the bridge over the Missouri river, as aforesaid, and the purchase of said tracks from the Union Pacific Railway Company, and the construction of other tracks, the said East Omaha Land Company does hereby grant, bargain, sell, and convey unto the said Omaha Bridge and Terminal Railway Company, its successors and assigns, for terminal and railway purposes and uses, the following described real estate, situated in the county of Pottawattamie, Iowa, and in the county of Douglas, Neb."

There are other provisions in the instrument which we shall consider later on, in so far as they are discussed in the briefs or appear material.

Appellant contends that the instrument conveyed an absolute title in fee simple, while the appellees contend that the instrument taken together and considered as a whole, conveyed only a right of way, and that the words, "for terminal and railway purposes and uses," indicate an implied reversion or forfeiture for abandonment. It will be observed from that portion of the instrument above quoted that the full consideration for the execution of the deed had passed to the grantor therein. The land company had about 1,700 acres of land located along the Missouri river, in the city of Omaha, which it was engaged in developing, improving and placing upon the market. In the course of the work of development the land company considered it necessary to have a proper system of trackage for taking care of the then present and future business enterprises and industries located in that vicinity. The land company had on June 1, 1889, entered into a contract with the Union Pacific Railway Company for this purpose and part of the construction work was done by that company. Again, on the 23d day of July 1892, the land Company entered into another contract with the Interstate Bridge & Street Railway Company, the predecessor of the terminal company, for the...