Graham v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 February 1901
• Parties: GRAHAM v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

Page 1048

65 S.W. 1048

GRAHAM v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

February 2, 1901.

Appeal from circuit court, St. Francis county; Hance N. Hutton, Judge.

Action by the St. Louis, Iron Mountain & Southern Railway Company against W. S. Graham. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

The facts in this case, as far as it is necessary to state them, are as follows: C. C. Graham and W. H. Howes were owners of a tract of land in St. Francis county. The St. Louis, Iron Mountain & Southern Railway Company in 1882 purchased a portion of this land, to be used as depot grounds, side tracks, and a wye. The deed to the company recites that the company is engaged in constructing a railroad through the county of St. Francis from the south to an intersection with the Memphis & Little Rock Railroad, and also to a connection with the Iron Mountain & Helena Railroad, and then, after minutely describing the right of way, depot grounds, side tracks, switches, and wye, as laid out, proceeds as follows: "And whereas, said parties of the first part are the owners and are seised and possessed of all that part of the right of way and depot grounds hereinbefore described which lies in the west half of section 28 aforesaid, and have agreed to convey the lands so owned and possessed by them to the said party of the second part for the purpose of constructing and maintaining its proposed railroad, which tract of land so to be conveyed contains 38 acres of land, more or less: Now, therefore, the said parties of the first part, for and in consideration of the premises, and of the sum of $950.00 to them paid by the said party of the second part, do by these presents give, grant, bargain, sell, and convey to the said party of the second part the right of way and depot grounds hereinbefore described, with the right to enter upon said lands for the construction of said railway through and upon the same. To have and to hold the same to the said party of the second part so long as said lands are used for the purposes of a railroad, and no longer." This deed was executed in July, 1882. Shortly afterwards the company constructed its railroad across the land mentioned in the deed, and has ever since continued to operate said railroad, and to use the greater portion of the land for the purpose named in the deed. But a part of the tract, which it obtained for the purpose of constructing a wye, it has not used. This part of the land conveyed lay in the grantor's inclosure, and was allowed to remain in that condition for several years. After the execution of the deed C. C. Graham obtained the interest of Howes, the other grantor, and thus became the sole owner of the tract of land of which that described in the deed to the company was a part. He died in 1886, and left a will devising the land across which the right of way was conveyed to his son, W. S. Graham, who now owns it, and who is also in possession of a part of the land conveyed to the company. This action was commenced by the company in 1897 to recover possession of that portion of the land held by Graham. Graham for defense, set up that the land had been forfeited by failure of company to comply with the condition in the deed, and also set up adverse possession of over seven years. On a trial there were a verdict and a judgment for the plaintiff, from which Graham appealed.

Norton & Prewett, for appellant. Dodge & Johnson, for appellee.

RIDDICK, J. (after stating the facts).

This is an action of ejectment brought by the railway company to recover 12 acres of land which the ancestor of defendant had sold and conveyed to the company for railway purposes. The defendant contends that all the right and interest in this land conveyed to the company by the deed of his father was forfeited by reason of a failure to comply with a condition in the deed. The clause of the deed referred to is as follows: "To have and to hold the same to the said party of the second part so long as said lands are used for the purpose of a railroad, and no longer." The proof shows that the railroad was built, and that the company has continuously used the greater portion of the land conveyed for the purposes mentioned; but because it has not built upon and occupied the 12 acres of the tract in controversy, the contention is made that it was forfeited by virtue of the provision in the deed above quoted. In determining the meaning of this clause in the deed, we can look to the circumstances under which the deed was made. The land was conveyed to the company before it had constructed its road on the land to be used for depot grounds, right of way, side tracks, and wye, which it expected to construct in the future. The proof shows that the company, looking to the probable future needs of the road, purchased and paid for more land than it needed for immediate use, though not more than it would probably need in the future. Construing the language of the deed in the light of these circumstances, we think there was no forfeiture. The condition was complied with on the part of the company by constructing its railroad upon and across the land conveyed, and putting so much of said land as its immediate needs required to use for depot grounds and side tracks (that being the greater part of the tract), and by holding the remainder for the future needs of its railroad; in the meantime not putting it to another or different use. This land was not given to the company to secure the erection of shops, or something of that kind. It was purchased and paid for by the company, which afterwards constructed its railroad as set out in the deed. If the construction of the road was a part of the consideration of the deed, the grantors have secured that advantage. They were not in any way interested in the construction of the wye or side tracks for which the company now wishes to use the land in controversy. The delay in constructing it did not operate to their injury, but, on the contrary, they were thus permitted to use and cultivate the land several years longer, and thus gained an advantage by the failure of the company to put the whole tract to immediate use. Conditions subsequent are not favored, and must be strictly construed, and we see nothing in this deed that required that the whole tract should be at once used for railroad purposes. We think the ruling of the circuit judge on this point was correct, and the contention of appellant must be overruled.

The next question is raised by defendant's claim of title by adverse possession. On this point the circuit judge held that a vendor could not defeat the right of his vendee by adverse possession, and that the same rule would apply to the defendant, who holds under the will of his father, one of the vendors. He thereupon directed the jury to find for the company on the issue of adverse possession. Considered abstractly, this statement of the law as given by the trial judge was not correct. Though the continued possession of the land by the vendor after conveyance executed is not of itself sufficient to show a holding adverse to the vendee, yet there is nothing in their relations which will prevent the vendor from acquiring a title by adverse possession. But before the vendor, or those claiming under him, can acquire title in that way against the...