Hall v. Wabash R. Co.

• Decision Date: 13 March 1907
• Citation: 110 N.W. 1039,133 Iowa 714
• Parties: HALL v. WABASH R. CO.
• Court: Iowa Supreme Court

133 Iowa 714

110 N.W. 1039

HALL

v.WABASH R. CO.

Supreme Court of Iowa.

March 13, 1907.

Appeal from District Court, Monroe County; F. W. Eichelberger, Judge.

A condemnation proceeding instituted by the plaintiff to recover damages for the use by the defendant of an abandoned right of way. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals. Reversed.

Weaver, C. J., and McClain, J., dissenting.

T. B. Perry, for appellant.

Ben. McCoy, R. T. Mason, and Fred Townsend, for appellee.

SHERWIN, J.

This is still another one of the series of abandoned right of way cases which have engaged the attention of this court since Remey v. Iowa Cent. Ry. Co., 116 Iowa, 133, 89 N. W. 218, was submitted and decided. The fact questions, so far as the right of way and its abandonment are concerned, are practically the same as those involved in the preceding cases.

In this case, however, the right of way extends over the N. E. 1/4 of section 29 and the S. W. 1/4 of the N. W. 1/4 of section 28, and the conveyances under which the plaintiff holds are not the same for both tracts of land. The old Iowa Central Railroad Company acquired its right of way by deeds from the then owners of the land, and these deeds were duly recorded. The deed conveying to the plaintiff the N. E. 1/4 of section 29 contained no reservations or exceptions, and, as to the right of way over that land, this case is ruled by the Remey Case, supra, and Russell v. Iowa Central R. Co. (Iowa) 99 N. W. 1131. The plaintiff's deed to the S. W. 1/4 of the N. W. 1/4 of section 28 was from Athalia Carroll, who owned the land when the right of way was first located, and who deeded the same to the old Iowa Central Railroad Company. In her deed to the plaintiff, she excepted the land occupied by such right of way, in the following language, “excepting the part occupied by the right of way of the Iowa Central Railroad Company.” This exception is clear and unequivocal, and no title to the land embraced in the right of way passed. She deeded all of the 40-acre tract, except the land occupied by such right of way. We do not see how an exception could be more definite, or how the intent of the grantor could be made plainer. The railroad company then had a recorded deed of the right of way. An exception in the grant of the right of way alone would amount to nothing, and, unless the exception in question withheld from the grant the strip of land so occupied, it is meaningless. It was the soil itself that was in terms excepted from the grant, and not merely the right of way.

The exception before us is not repugnant to the grant, and must be held valid; and, if it be valid, the title to the land occupied as right of way remained in the grantor, with the like force and effect as if no grant had been made. Spencer v. Wabash Railroad Company (Iowa) 109 N. W. 453;Wiley v. Sirdorus, 41 Iowa, 224; 4 Kent, Com. 468; Moulton v. Trafton, 64 Me. 218; Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 667; Ashcroft v. Eastern R. Co., 126 Mass. 196, 30 Am. Rep. 672;Allen v. Scott, 21 Pick. (Mass.) 25, 32 Am. Dec. 238. It was therefore error for the court to instruct that the plaintiff was entitled, under his deed from Mrs. Carroll, to recover as to the 40 acres in question. Spencer v. Wabash Railroad Co., supra.

On the trial of the appeal in the district court, the plaintiff was awarded a larger sum than had been returned by the...