Garry v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 08 February 1963
• Docket Number: No. 6940,6940
• Parties: Annie Wildy Lea GARRY and Ella Lea Dow, Plaintiffs-Appellees, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Waples-Platter Company, a corporation, Kimbell-Lubbock Company, a corporation, George J. Maloof & Company, a corporation, and A. B. Carpenter, an individual, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 609

378 P.2d 609

71 N.M. 370

Annie Wildy Lea GARRY and Ella Lea Dow Plaintiffs-Appellees, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Waples-Platter Company, a corporation Kimbell-Lubbock Company, a corporation, George J. Maloof &amp Company, a corporation, and A. B. Carpenter, an individual Defendants-Appellants.

No. 6940.

Supreme Court of New Mexico.

Feb. 8, 1963.

Bryan G. Johnson, Albuquerque, for appellants A. T. & S. F. Ry. Co., Waples-Platter Co., and Kimbell-Lubbock Co.

John P. Dwyer, Virgil L. Brown, Albuquerque, for appellant George J. Maloof & Co.

Carpenter, Phelps & Norwood, Roswell, for appellant A. B. Carpenter.

Neal, Neumann & Neal, Carlsbad, Wm. C. Schauer, Roswell, Thomas Lea Garry, Alhambra, Cal., for appellees.

MOISE, Justice.

In 1894 Joseph C. Lea and wife, by warranty deed duly recorded, conveyed a strip of land in the town of Roswell to James J. Hagerman. The deed contained the following language:

'This deed is made upon the express condition that the land above conveyed is occupied by the Pecos Valley Railway Company, or its successors for purposes and business of a railroad character or for the convenience of such company or its successors in handling its freight or other business or upon which to erect or permit erected such warehouses and yards as may be needed by its shippers and upon the express condition that if at any time it should cease to be used for such purposes then this conveyance shall become null and void and the property herein described shall at once revert to the grantors, their heirs or assigns.'

It is a portion of this land that is here involved.

At the time of the deed, the railroad had not been built into Roswell. However, the town had by ordinance granted a right of way for the main line of the railroad on what had originally been platted as Grand Avenue, and the land covered by the deed lay adjacent thereto.

There is no controversy that the defendant-appellant, The Atchison, Topeka and Santa Fe Railway Company, hereinafter referred to as 'Santa Fe' is the successor in interest of James J. Hagerman.

For some years after the railroad was built into Roswell, and at various times, the Santa Fe utilized portions of the property for an oil tank, coal house, tool house, coal chute, cinder pit and section house. However, in 1946 it made the first of a number of leases for warehouses to be built and operated on the property. Between 1946 and 1953, four such leases were executed, two to wholesale grocery concerns, one to a wholesale beer dealer, and one to a wholesale liquor dealer. A fifth lease was entered into after the suit and lis pendens were filed, and a warehouse was constructed by a firm that deals in bottled water from the Ozark Mountains. The lessees purchased the side track leading to the property leased by them.

In 1956, complaint for declaratory judgment was filed by plaintiffs-appellees, who are the sole heirs of Joseph C. Lea, deceased, and as such are successors in interest to the right of reversion quoted supra. The defendants are the Santa Fe and the holders of leases mentioned above. It was alleged that a controversy existed between the parties and that the Santa Fe had surrendered possession, occupancy and use of a major portion of the land covered by the conveyance, and that the same had ceased to be used for the purpose of which it had been conveyed, resulting in a reversion.

Plaintiffs state in their answer brief that their case 'rests squarely upon their claim that the defendant Railway Company in leasing the property to the individual lessees for private business purposes' committed 'an act resulting in a reverter of that part of the land so leased.' The trial court agreed with this position and entered a judgment holding that the leased properties had 'ceased to be used for the purposes stated in the conveyance, * * * and that such conveyance had become null and void * * *' and that a reverter to plaintiffs had resulted. The defendants appeal from this decision.

The Santa Fe argues four points in its brief in chief, but inasmuch as we believe the appeal should be determined by considering the language of the deed we confine ourselves to a consideration of the first two points as argued.

Under these two points it is urged that the use for warehouses is a recognized and proper railroad use and that it is within the terms stated in the deed.

Let us first determine the rules applicable in considering the meaning of the language used. The general rule for the construction of deeds is to the effect that the intention of the parties is to be ascertained from the language employed, viewed in the light of the surrounding circumstances. Nickson v. Garry, 51 N.M. 100, 179 P.2d 524. Also, deeds are to be construed so as to uphold them if possible. Westover v. Harris, 47 N.M. 112, 137 P.2d 771. In Hoover v. Waggoman, 52 N.M. 371, 199 P.2d 991, it was held that, in construing restrictive covenants in deeds, effect is to be given to the intention of the parties as shown by the language used, considered with the circumstances of the transaction together with the object to be accomplished in making the restrictions.

A provision such as the one here being considered which, under certain circumstances, works a forfeiture, should be construed most strongly against the grantors or, in this case, against plaintiffs. Berger v. Santa Fe College, 28 N.M. 545, 215 P. 825; Rowe v. May, 44 N.M. 264, 101 P.2d 391; Hart v. Northeastern N. M. Fair Assn., 58 N.M. 9, 265 P.2d 341.

Keeping in mind that the provision is to be construed and interpreted to avoid a forfeiture, if possible, we undertake an analysis of the language used. We find that the first express condition stated is that the land be 'occupied' by the Santa Fe 'for purposes and business of a railroad character or for convenience * * * in handling its freight or other business. * * *'

When it leased part of the property to private operators who were large shippers by rail because it was expected thereby to get additional freight business, did it abandon its occupancy for the stated purposes?

In Grand Trunk Railroad Company v. Richardson, 91 U.S. 454, 23 L.Ed. 356, it was held that the permissive erection of buildings on railroad property by private parties for convenience in delivering freight was not inconsistent with railroad purposes. See, also, Missouri Pac. Ry. Co. v. State of Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489; Oregon Short Line R. Co. v. Ade County, D.C., 18 F.Supp. 842; aff'd 9 Cir., 97 F.2d 666, holding to like effect. In 94 A.L.R. 522, 535, in a note on the subject 'Right of railroad company to use or grant use of land in a right of way for other than railroad purpose' it is stated that maintaining or permitting 'the maintenance of warehouses on its right of way to be used in connection with, and for the convenience of, railroad traffic,' is considered a railroad use and a number of cases are cited in support of the proposition. Additional cases appear in a supplemental note in 149 A.L.R. 378.

Plaintiffs, while asserting a conflict in the authorities, would evidently concede that under certain decisions it might be held that if the only question was one of whether the use being made was a railroad purpose, the holding might be otherwise. However, because of the presence of this language, '* * * or upon which to erect or permit erected such warehouses and yards as may be needed by its shippers,' they argue that a different result must follow.

As we understand their argument, it is generally to the effect that since the erecting of warehouses is specifically mentioned it was not intended that use for 'railroad purposes' would be enough. They then argue that the language used indicates an intention that by the use of the term 'shippers' was meant the 'general public' as shippers and not private individuals. The trial court was evidently persuaded by this argument as it found...