Fuller v. State, 6780
| Decision Date | 16 September 1965 |
| Docket Number | No. 6780,6780 |
| Citation | 394 S.W.2d 203 |
| Parties | E. T. FULLER, Jr., et al., Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Weller, Wheelus & Green, Strong, Pipkin, Strong & Nelson, Carl Griffith, Beaumont, for appellants.
W. G. Walley, Jr., Beaumont, for appellee.
The opinion and judgment rendered in this cause on the 8th of July, 1965, are withdrawn and this opinion in all things substituted therefor with judgment rendered as hereinafter set forth.
Summary judgment was granted on the motion of the State of Texas declaring the deed dated May 15, 1937, from Edna French to the State of Texas conveyed a fee simple title, less the mineral estate, to a 4.5 acre tract. Further, that by reason of such fee ownership the State of Texas upon the abandonment of a railroad right of way 100 feet in width abutting 4.5 acres to the east, the westerly 50 feet by 680.55 feet of the abandoned railroad right of way belonged to the State of Texas. Appellee, the State of Texas, recovered title and possession of the surface of said portion of the west half of the abandoned railroad right of way as against E. T. Fuller, Jr., individually and as Independent Executor of the Will and Estate of Sarah Bell Fuller, Deceased; Anne B. Teichmann and husband, Charles F. Teichmann; Minnie B. Justus, a feme sole; Edna Brooks, a feme sole; Robert Dixon and wife, Edna Ruth Dixon; Frank W. Brooks and wife, Virginia L. Brooks; and Bronson Gay, Trustee; Lee C. Holland, Trustee; James E. Mason, Trustee; Edward J. Britt, Trustee; and Bill J. Lazenby, Trustee, all as Trustees of the 11th Street Baptist Church, with the relief prayed for by defendants and cross-plaintiffs E. T Fuller, Jr., Anne B. Teichmann and husband, Charles F. Teichmann, being in all things denied. Appeal has been perfected by all parties except the Trustees of the Eleventh Street Baptist Church. The parties will be designated by name or the State of Texas will be called appellee and the defendants in the court below will be called appellants.
John J. French owned all of the lands including the railroad right of way and is the common source of title. By deed dated September 9, 1880, John J. French and wife, Sally French, conveyed a right of way for railroad purposes to Sabine & East Texas Railway Company. This right of way was 100 feet in width and, roughly, ran north and south. See sketch below:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On April 20, 1889, John J. French conveyed to Mrs. C. C. Blanchette lands abutting and to the east of the railroad right of way. There is a regular chain of title from Mrs. Blanchette to E. T. Fuller whereby he acquired the fee simple title to an 8 acre tract shown on the plat above. This 8 acre tract abutted the railroad right of way 680.55 feet. Upon the death of E. T. Fuller and his wife, title to such 8 acre tract by will and inheritance vested in E. T. Fuller, Jr. and Anne Fuller Teichmann. The railroad right of way was the sole easement or right of way across the land involved at the time Mrs. C. C. Blanchette acquired title to a larger tract on the east side of the railroad right of way of which the E. T. Fuller tract is a part. The railroad abandoned its right of way in 1961. In the adjoining railroad right of way E. T. Fuller, Jr., and Mrs. Teichmann owned the east one-half of same adjoining and abutting their 8 acre tracts burdened with the right of way. On such abandonment their title in fee simple was complete to the east half of the railroad right of way abutting their 8 acres. No one disputes this.
This brings us to the question as to who owns the west half of the surface of the abandoned railroad right of way west of the eastern half thereof vested in E. T. Fuller, Jr., and Mrs. Teichmann. On May 15, 1937, Mrs. Edna French, individually and as independent executrix of the estate of T. A. French, deceased, owned the fee simple title, minerals as well as surface, to all of the lands abutting the railroad right of way to the west containing 32.6 acres. On that date she conveyed by general warranty deed the tract of land hereinafter described to the State of Texas for $2,056.50. The description is as follows:
'The land herein conveyed is a strip out of the T. A. French 32.6 acre tract in the A. Williams survey, Abst. #385, in Jefferson County, Texas, said strip of land lying within the limits of the right of way of the proposed State Highway No. 40 in Jefferson County, Texas, as surveyed by the Division Engineer of the State Highway Department of Texas, and being of such width that the right of way contained on East side of the centerline of said Highway No. 40 shall be seventy (70 ) feet and on the West side sixty (60 ) fet; the centerline being more particularly described as follows:
'TRACT I: Beginning at a point in the centerline of State Highway No. 40 at Sta. 167 29 said point being in the south line of the T. A. French 32.6 acre tract and seventy (70 ) feet measured at right angles, from the right of way of the S. & E. T. R. R. THENCE N 40 41 W along the centerline of Highway No. 40 for a distance of one thousand five hundred and nine (1509 ) feet to Sta. 182 38, said point being in the N. line of the T. A. French tract and eighty-two (82 ) feet, measured along said N. line, from the NE corner of T. A. French tract.
'It being the intention in this deed to convey to the State of Texas, all the land now being owned by me/us within the above described limits and containing 4.50 acres of land.
'There is reserved, however, ot the Grantor herein all oil, gas and other minerals on in and under the land hereby conveyed.
'And it is further agreed that the said grantor/s in consideration of the benefits above set out will remove from the property above described such fences, buildings and other obstructions as may be found upon said property.'
Within a year or two thereafter a highway was built upon such 4.5 acres, known as Highway 40 or Highway 69. Hereafter, the word land will mean surface only. It is the contention of appellants that the State of Texas did not acquire the land to the east of such 4.5 acres to the center of the abandoned railroad right of way. Appellants contend that upon abandonment of the railroad right of way the State of Texas was not vested with the title to the strip 680.55 feet north and south X 50 feet east and west, the directions being general, (hereinafter called the land in controversy) and being the west half of the railroad right of way. Appellants rely upon the Supreme Court case of Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777 (1955), wherein the deed from Haines to Scurry County was construed as conveying a determinable fee in a 100 foot strip. The Supreme Court held that since this deed was a donation to Scurry County and had restrictive limitations, to contend that it conveyed an '(additional) fee half again or more greater in adjoining property, simply shocks the conscience * * *.' The deed from Edna French to the State of Texas was executed for $450.00 an acre, had no limitations or restrictions, and the intention of the grantor, Edna French, is to be had from the written instrument, not from hearsay conclusions of third persons of no probative force as evidence. There is...
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State v. Fuller
...east of the strip in controversy, have a right of access to Highway 69, and as so modified the judgment of the trial court was affirmed. 394 S.W.2d 203. Applications for writs of error were filed by the State, the Fullers and the Brooks, and all applications were granted. It is our opinion ......