Corbyn v. Okla. City
| Decision Date | 05 March 1946 |
| Docket Number | Case Number: 32066 |
| Citation | 1946 OK 77,172 P.2d 384,197 Okla. 483 |
| Parties | CORBYN v. OKLAHOMA CITY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. DEEDS-Effect of clear exception in granting clause.
The effect of a clear exception in the granting clause of a deed is to exclude the excepted property from the operation of the grant.
2. SAME-Portion of lot conveyed to railroad reverted to heirs of subsequent grantor whose deed to lot contained exception clause.
Fichtenmueller conveyed to a railway company a determinable fee on condition subsequent in the south 40 feet of a certain lot. Thereafter Peters, a subsequent owner, conveyed the lot to a church, the deed containing an exception following the description and as a part of the granting clause, as follows: "except that part of said lot lying south of a point forty feet north of the south end of said lot and heretofore conveyed to the C. O. & G. R. R. Company." Thereafter the railway company abandoned the property for railway purposes and conveyed it to Oklahoma City for use for public purposes, thereby putting into effect a reverser clause in the deed to the railway company. Held, that the 40 feet so conveyed to the railway company became the property of the heirs of Peters under the reverser clause and the exception clause, and not that of Corbyn, the remote grantee of the church, so that the heirs of Peters were entitled to the condemnation money assessed against Oklahoma City by reason of the appropriation of said 40 feet.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Condemnation proceedings by Marmaduke Corbyn, A. M. Fichtenmueller, and John Peters, et al. against the City of Oklahoma City to assess and recover damages for appropriation of property. Judgment for Peters et al., and Corbyn appeals. Affirmed.
Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, for plaintiff in error.
A. L. Jeffrey, Municipal Counselor, of Oklahoma City, for Oklahoma City.
Chas. H. Garnett and C. W. Wainwright, both of Oklahoma City, for defendants in error Peters et al.
¶1 On September 17, 1891, Peter Fichtenmueller, the then owner of lot 26 in block 49 of the original townsite of Oklahoma City, conveyed the south 40 feet thereof to Choctaw Coal & Railway Company. The deed contained a reverser clause identical with that involved and quoted in Oklahoma City v. Local Federal Savings & Loan Ass'n, 192 Okla. 188, 134 P.2d 565, Jones v. Oklahoma City, 193 Okla. 637, 145 P.2d 971, and Fuhr v. Oklahoma City, 194 Okla. 482, 153 P.2d 115. Fichtenmueller died in 1899, and in January, 1900, lot 26 was sold and conveyed by an administrator's deed to J. H. Peters. The sale proceedings and deed did not reserve or except the 40 feet from the operation thereof. In February, 1900, Peters conveyed lot 26 to the Second Congregational Church, the deed containing this clause following the description and as a part of the granting clause: ". . . except that part of said lot lying south of a point forty feet North of the South end of said lot and heretofore conveyed to the C. O. & G. R. R. Company." In December, 1929, the interest conveyed to said church, by mesne conveyances, be came vested in Marmaduke Corbyn. The south 40 feet of said lot was used by said railway company and its successors in title for railroad purposes from 1891 until December 4, 1930, when the same was conveyed by the owner, Chicago, Oklahoma & Gulf Railroad Company, and its lessee, Chicago, Rock Island & Pacific Railroad Company, to Oklahoma City. The city appropriated and has since occupied and used the same for public purposes.
¶2 Thereafter, Corbyn and the heirs of Fichtenmueller filed separate condemnation proceedings in reverse against Oklahoma City to assess and recover damages resulting from the appropriation of the south 40 feet of said lot. The two causes were consolidated, and thereafter the heirs of Peters intervened. The trial court found that the heirs of Peters were the owners of the property at the time it was appropriated and awarded to them the condemnation money. Corbyn alone appealed, making the city and the heirs of Fichtenmueller and the heirs of Peters defendants in error. No cross-appeal has been filed by either the city or the heirs of Fichtenmueller.
¶3 All parties agree that, under the decisions above cited and other decisions, the reversionary interest in the south 40 feet of said lot was alienable in January, 1900, when the lot was sold to Peters. The sole question is whether the deed from Peters to the church had the effect of excepting from the grant said 40 feet. Corbyn argues the case under three propositions, but they are so interwoven that we do not deem it necessary to discuss the propositions separately.
¶4 Corbyn argues that the interest retained by Fichtenmueller in his deed to the railway company was in effect an easement, but he does not point out wherein he could prevail if we should hold it to be an easement. It is sufficient to say that, in Oklahoma City v. Local Federal Savings & Loan Ass'n, above, we held that a deed with an identical reverser clause conveyed a determinable fee on condition subsequent, and not a mere easement, and we followed that rule in Jones v. Oklahoma City, above. We adhere to that view. He cites several cases in support of his propositions. We have examined said cases, but do not find them in point. Some of them deal with rules for construing ambiguous deeds, others with exceptions or reservations that are ambiguous, others with deeds that contain no exception or reservation clauses, others with the rule of stare decisis. The exception in the deed involved in the instant case is substantially the same as that in the deed involved in Oklahoma City v. Local Federal Savings & Loan Ass'n, above. We there held that the exception is clear, and we hold that the exception here involved is equally as clear. There is no clause in the deed that in the least degree conflicts with the exception clause, hence rules of construction do not come into play. His argument that the exception clause was inserted to protect the warranty is without merit for the reason that it is a part of the granting clause and limits the grant. His argument that the exception clause may have been sufficient to retain to the grantor the land itself but not the right of re-entry is without merit, since the right of re-entry is incidental to, and goes with, the land.
¶5 Judgment affirmed.
¶8 Marmaduke Corbyn appeals from a judgment determining that J. H. Peters was the owner of the south 40 feet, lot 26, block 49, Original Plat of Oklahoma City, on December 4, 1930, when the land was abandoned for railroad use. The judgment determined that John Peters et al. were the sole heirs of J. H. Peters, deceased; that they were entitled to recover the value of the property as compensation for its appropriation to another public use, town', park purposes, by the defendant Oklahoma City.
¶9 The townsite trustees of Oklahoma City conveyed by deed, title to the lot, fee simple absolute, to Peter Fichtenmueller. In 1891 Fichtenmueller conveyed the south 40 feet of the lot to Choctaw Coal & Railway Company for railroad "right-of-way", specifically providing that in case of abandonment of the particular use for which the property was granted "the same shall revert to the grantor, his heirs or assigns".
¶10 The use for which the property was granted was abandoned on December 4, 1930. Consequently, that part of the lot so granted, its use for railroad right of way, merged with the servient tenement under it, to become fee simple absolute in whomsoever had right to the estate. Title did not return to the United States under Act of Congress February 18, 1888, and the amending Act February 13, 1889, which merely authorized the railroad company to locate and construct a railroad through the Territory, nor to the defendant city, successors in title by patent from the United States to the original townsite, confirmed by Act of Congress, 42 Stat. at L. 414, ch. 94, U.S.C.A. Title 43 § 912; Noble v. Oklahoma City, 172 Okla. 182, 44 P.2d 135; Noble v. City of Oklahoma City, 80 L. Ed. 816, 56 S. Ct. 562.
¶11 The interest in real property conveyed under Fichtenmueller's deed was neither an easement nor yet fee simple absolute. The subject of the grant was corporeal, not incorporeal. Being corporeal, remedies available for the preservation of it were those of the fee. It was in perpetuity so long as so used. Possession was exclusive. New Mexico v. U. S. Trust Co., 172 U. S. 171, 19 S. Ct. 128, 43 L. Ed. 407. But the subject of the grant was limited, not by a determinable fee on condition subsequent, as thought to be the case in Oklahoma Citv v. Local Federal Sav. & Loan Ass'n, 192 Okla. 188, 134 P.2d 565, whereby a re-entry would be necessary on abandonment of the railroad right of way in order to make of the possibility of reverser an estate in land subject to a grant to third persons. That right of forfeiture was then thought to be nontransferrable except to the owner of the property affected thereby. Tiffany, Real Property, § 281. Contra, Fuhr v. Oklahoma City, infra. That right of forfeiture, not being an estate in land, would pass to the personal representative and not the administrator of Peter Fichtenmueller in 1899. Jones v. Oklahoma City, 193 Okla. 637, 145 P.2d 971. Therefore, if the interest in land abandoned is a determinable fee on condition subsequent, it did not pass from the heirs of Fichtenmueller by that rule of law. The grant was not one of reversion, Kassner v. Alexander Drug Co., 194 Okla. 36, 147 P.2d 979; Fuhr v. Oklahoma City, 194 Okla. 482, 153 P.2d 115; Title 60 O. S. 1941 § 29, because a reversion is never a grant. Tiffany, Real Property, § 129. It is the residue of an estate left in grantor after grant of a particular estate...
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