Gulf & S. I. R. Co. v. Patten

• Decision Date: 24 January 1938
• Docket Number: 33006
• Citation: 180 Miss. 756,178 So. 468
• Parties: GULF & S. I. R. Co. v. PATTEN et al
• Court: Mississippi Supreme Court

178 So. 468

180 Miss. 756

GULF & S. I. R. Co. v. PATTEN et al

No. 33006

Supreme Court of Mississippi

January 24, 1938

Division B

1 DEEDS.

In construing deed, intention of parties is sought to be effectuated, but that intention must be found in language of instrument, and effect must be given, if possible, to each item, and no item should be rejected if in harmony with other items.

2 RAILROADS.

A deed conveying to railroad right of way across land and stating that northerly line should be a line parallel with center of main track of railroad and 100 feet distant on northerly side thereof, and westerly line a line running along west side of west leg of wye 15 feet distant from center line of wye track, did not convey land embraced within legs of wye.

3 RAILROADS.

That area within legs of railroad wye should be unobstructed and unoccupied did not give rise to implied grant, in right of way deed to a wye, of land within legs of wye.

HON BEN STEVENS, Chancellor.

APPEAL from the chancery court of Marion county HON. BEN STEVENS, Chancellor.

Suit between the Gulf & Ship Island Railroad Company and William Patten and others, involving title to land claimed by the railroad under a deed. From the decree rendered, the Railroad Company appeals. Affirmed.

Affirmed.

T. J. Wills, of Hattiesburg, Edw. O. Craig, of Chicago, Ill., and H. D. Minor, of Memphis, Tenn., for appellant.

The railroad company entered into an agreement and contract with Patten and with Barnes for this right of way and lands embraced therein for the construction of its railroad. The language used in the deed is "Convey unto the Gulf & Ship Island Railroad Company a right of way across and over my lands as follows: being a piece of land across which the tracks of said railroad are now laid etc."

The deed then particularly described the lands showing that already the main line tracks had been constructed and the Y. A Y is used to turn trains around. They are constructed in the shape of the letter Y with the opening ends of the Y intersecting the main line track, the character of which is a matter of common knowledge to everyone. It was desirable to the Railroad Company to own the lands within the Y so that in leaving the main line and in going in on one leg of the Y and throwing the switch and coming out on the other leg of the Y, so as to turn the locomotive or train of cars around, that the view might not be obstructed. It was essentially necessary that the railroad own and control the lands so that it could prevent buildings or structures of any kind being erected thereon so as to make more dangerous the operation of the train and create a hazard to the public generally.

It is shown here that High School Avenue crosses the main line track and crosses a part of the lands embraced in these deeds of conveyance. The fact that the property was located in a city and that the Y crossed one of the main streets, that the evidence in this record shows to be two numbered highways, made the necessity for the ownership and control of the land much greater. The deed conveyed these lands to the Railroad Company.

Territory of New Mexico v. U. S. Trust Co. of New York, 172 U.S. 171, 43 L.Ed. 407, 19 S.Ct. 128.

It is the contention of appellee that, while the conveyance embraced the land in question, it had not been used for railroad purposes; that it had been abandoned by the railroad and was not being used. The contention so made is without merit. The land was within the legs of the Y. The use of it to retain an unobstructed view while the trains were being handled was a constant use. The evidence shows thai trains were turned on the Y every day except Sunday; that trains were being run over the main line track every day. The use for which the land was intended, when it was purchased, had not been changed, or even if it had been changed, the purpose of its use remained the same.

M. J. & K. C. R. R. Co. v. Kamper, 88 Miss. 817, 41 So. 513.

Intention is the first and paramount object of inquiry where the question of abandonment is raised, for there can be no abandonment without the intention to abandon 1 C. J., page 6.

No abandonment can be presumed from a non-user of land from the time of its taking.

1 C. J., page 7, par. 8, and page 8, par. 11; Hummel v. Cumberland Valley R. R. Co., 175 Pa. 537, 34 A. 848.

The burden of proving an abandonment rests upon the owner who asserts it.

Adams v. Hodgkins, 42 L. R. A. (N. S.), 741; Hennessy v. Murdock, 137 N.Y. 317, 33 N.E. 330.

Appellant asserted in its bill of complaint that it had been in adverse possession of the said land for a long period of time and more than ten years. The proof showed that it had gone into possession of the tract of land, embraced in the deed, in 1900 and had continuously, uninterruptedly been in possession of the land, with all of the necessary elements of adverse possession, from the date of the deeds in 1900 down to the date of the trial of the case. It was not necessary for it to be in the actual occupancy of each and every part of the land embraced in the deed. Claiming under color of title, the deed, its occupancy of any part of the lands so conveyed would extend to all of the land embraced in the deed.

Native Lbr. Co. v. Elmer, 117 Miss. 720, 78 So. 703; Jones v. Gaddis, 67 Miss. 769, 7 So. 489; Mitchell v. Bond, 84 Miss. 72, 36 So. 148.

Hall & Hall, of Columbia, for appellees.

There is a well settled rule of law to the effect that "an instrument is to be construed most strongly against the person who draws it."

Home Mutual Fire Ins. Co. v. Pittman, 71 So. 739, 111 Miss. 420.

Applying this rule, it must be assumed that the railroad company, in preparing the deeds in question, included a grant of every right and title which Patten and Barnes had agreed to convey. The record shows without dispute that the officials of the railroad company prepared the deeds here in question and had them ready for the signatures of the grantors when they were presented to the grantors for execution. This being true, the railroad company certainly cannot successfully claim something which is not included in these deeds. Each of these deeds provides: "I hereby convey unto the Gulf & Ship Island Railroad Company a Right of Way across and over my lands as follows," and after which there follows a description of the land owned by the grantors. It is perfectly clear that...