Higgins v. Okla. City

Decision Date14 December 1937
Docket NumberCase Number: 23822
Citation191 Okla. 16,1937 OK 721,127 P.2d 845
PartiesHIGGINS et al. v. OKLAHOMA CITY
CourtOklahoma Supreme Court
Syllabus

¶0 1. RAILROADS - Railroad authorized under Oklahoma Territory statute to acquire by deed fee-simple title to land.

By reason of section 1022, Stat. of Oklahoma 1903 (sec. 11913, O. S. 1931), a railway company was authorized to acquire by deed the fee-simple title to lands for railway purposes.

2. SAME - Right-of-way deed held to pass fee-simple title to land.

A right-of-way deed executed by the owner of land to a railway company containing the operative words "grant, bargain, quitclaim, and relinquish and convey" passed the fee-simple title to the land therein described in the absence of express words of limitation contained in the deed.

3. SAME - Right-of-way deed held unambiguous and to contain no express words limiting estate conveyed.

The deed in the instant case examined; held, to clearly express the intention of the parties and to contain no express words limiting the estate thereby conveyed.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Suit by Robert W. Higgins and others against the City of Oklahoma City. A judgment of the Supreme Court of Oklahoma (172 Okla. 182, 144 P.2d 135), which affirmed judgment in favor of the defendant, was reversed by the United States Supreme Court (297 U.S. 481, 56 S.Ct. 562, 80 L.Ed. 816), and cause was remanded to the Supreme Court of Oklahoma for further proceedings. Judgment of district court affirmed.

Writ of certiorari denied by Supreme Court, 305 U.S. 607, 59 S.Ct. 67, 83 L.Ed. 386.

See, also, Oklahoma City v. Dobbins, 189 Okla. 381, 117 P.2d 132; Noble v. Oklahoma City, 191 Okla. 20, 127 P.2d 843.

Joe T. Rogers, of Wichita, Kan., Warren E. Libby, of Los Angeles, Cal., and Fred Suits, Henry L. Goddard, Fred Ptak, and Chas. H. Garnett, all of Oklahoma City, for plaintiffs in error.

A.L. Jeffrey, Municipal Counselor, and Warren W. Connor, Asst. Municipal Counselor, and Jarman, Brown & Watts, of Oklahoma City, for defendant in error.

George E. Massey, Jr., of Oklahoma City, amicus curiae.

GIBSON, J.

¶1 This action was commenced in the district court of Oklahoma county by the heirs of Robert W. Higgins against the city of Oklahoma City to recover possession of a certain parcel of land located in said city and formerly occupied as a right of way by a railroad corporation. The parties will be hereafter designated in the order of their appearance at the trial.

¶2 This court on appeal of this cause has heretofore affirmed the judgment of the trial court in favor of the defendant (Noble v. Oklahoma City; Higgins v. Same, Consolidated, 172 Okla. 182, 44 P.2d 135). The case then went to the Supreme Court of the United States, where our decision was reversed and the cause remanded for further proceedings as therein expressed (Noble v. Oklahoma City; Higgins v. Same, 297 U.S. 481).

¶3 The facts in the case and the contentions of the parties are set out in the foregoing decisions, and reference thereto is here made.

¶4 The above-mentioned decision of the Supreme Court of the United States settled this controversy in every respect with the exception of the effect of a certain right-of-way deed executed by plaintiffs' ancestor to the railroad company. It is sufficient to say that if that deed conveyed an absolute estate in fee simple, the plaintiffs are without valid claim to the land and their action in ejectment must fail. That question, under the mandate to this court, remains for our determination.

¶5 The deed in question reads as follows:

"Right of Way Deed
"R.W. Higgins & Wife to Choctaw Oklahoma and Gulf Railroad Company
"Right of Way and Release of Damages
"Know all Men by these presents: That R.W. Higgins and wife, of the County of Oklahoma in Oklahoma Territory, of the first part, for and in consideration of the sum of Four Hundred Dollars paid for the use of a wye, off the right of way of said Company, from about December, 1892, to about the year 1897, on and over the lands hereinafter described, to them paid by the Choctaw, Oklahoma & Gulf Railroad Company, of the second part, the receipt of which is hereby acknowledged, have granted, bargained, quitclaimed and relinquished and by these presents do grant, bargain, quitclaim and relinquish and convey to the said Choctaw, Oklahoma & Gulf Railroad Company, party of the second part, the following described lands for a right of way for its railroad, Telegraph and Telephone Lines, and for Railroads or Station purposes, viz.:
"A strip of land 100 feet wide over, through and across the lands owned or claimed by the undersigned, to wit: The South West Quarter of Section thirty-three (33) Township twelve (12) North, Range three (3) West of the Indian Meridian in said County and Territory, said strip of land to extend 50 feet on each side of the center of the Railroad or track of said railroad as now located and constructed.
"To have and to hold the same by the said Choctaw, Oklahoma & Gulf Railroad Company, together with all and singular the rights, privileges and appurtenances thereunto belonging and all the rights and privileges which said company is authorized to have, hold and exercise under and by virtue of the Act of Congress granting the Choctaw Coal and Railway Company a right of way through the Indian Territory, approved February 18th, 1888, and subsequent Acts of Congress amending and extending said Act together with all the rights and privileges granted unto said Choctaw, Oklahoma & Gulf Railroad Company by an Act of Congress approved August 24th, 1894, and the Act of Congress approved April 24th, 1896, and unto its successors, and assigns forever.
"And in further consideration of the premises we do hereby acknowledge the receipt in full of all compensation and satisfaction for property taken and damage done by reason of the construction of said railroad including the land taken or damaged by reason of the cuts or fills made in the construction of said railroad and said "Wye."
"Witness our hands this 24th day of March, A.D. 1898.
"(Signed) R.W. Higgins, Susan A. Higgins."

¶6 Some argument is advanced that a railway company could not acquire the fee-simple title to lands in that particular territory at the time the above deed was executed. In view of section 1022, Stat. of Oklahoma 1903 (sec. 11913, O. S. 1931), we find no merit in the argument. Subdivision 3 of the section provides as follows:

"To acquire under the provisions of this article, or by purchase, all such real estate and other property either within or without this state, as may be necessary for the construction, maintenance and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when not required for railroad uses, and no longer necessary to its use."

¶7 When the deed was executed, Higgins owned the fee-simple title to the tract therein described. This was settled by the decision in 297 U.S. 481, supra. We are to determine the quantity of estate the deed conveyed. If it contains an element of uncertainty as to the intention of the parties, that intention may, by parol evidence, be ascertained from the admissions of the parties or other extraneous circumstances; the intention of the grantor will be gathered from the whole instrument, if possible, without undue emphasis upon any one part thereof to the exclusion of another. Rogers v. Kinney, 122 Okla. 73, 250 P. 890.

¶8 But when the deed was executed, section 30, ch. 8, S. L. 1897 (sec. 9698, O. S. 1931), was in force. That section provides that "every estate in land which shall be granted, conveyed or demised by deed or will, shall be deemed an estate in fee-simple and of inheritance, unless limited by express words." And a quitclaim deed made in substantial compliance with the chapter on conveyances conveys all the right, title, and interest of the maker thereof in and to the premises therein described. Section 17, ch. 8, S. L. 1897 (sec. 9679, O. S. 1931). Under section 42, ch. 8, S. L. 1897 (sec. 9680, O. S. 1931), the granting clause of a quitclaim deed may contain the words "do hereby quitclaim, grant, bargain, sell and convey," but a substantial compliance with that section is sufficient; the section is directory and not mandatory. Mosier v. Momsen, 13 Okla. 41, 74 P. 905. Words of a similar import, showing an intention to convey a present interest, are sufficient. Id.

¶9 In Walker v. Renegar, 178 Okla. 82, 61 P.2d 666, the words "set over and assign" were held sufficient to convey title. In the instant case the operative words used were "grant, bargain, quitclaim and relinquish and convey." The words "grant" and "convey" here used, if not of greater operative force, are at least equal to the words "set over and assign." "Grant" and "convey" are words often used interchangeably, and either is sufficient as an...

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