Hogan v. Blakney

• Decision Date: 04 December 1952
• Docket Number: No. 7884,7884
• Citation: 251 P.2d 209,73 Idaho 274
• Parties: HOGAN v. BLAKNEY.
• Court: Idaho Supreme Court

Page 209

251 P.2d 209

73 Idaho 274

HOGAN v. BLAKNEY.

No. 7884.

Supreme Court of Idaho.

Dec. 4, 1952.

Whitla & Knudson, Coeur d'Alene, for appellant.

McNaughton & Sanderson and E. L. Miller, Coeur d'Alene, for respondent.

PORTER, Justice.

This case was commenced in the form of an action in ejectment, but was treated and tried by court and counsel as an action to quiet title. Both parties claim title to the land involved. The cause was tried to the court sitting without a jury and resulted in a judgment quieting title to the land in repondent as against appellant. From such judgment, appellant has appealed to this court.

Block One (1) of Miller's Amended Addition to Smelterville, Idaho, is triangular in shape and was formerly owned by respondent. Appellant now owns the east 100 feet of the block and respondent owns the west 37.02 feet thereof. The land involved in this action is a small tract lying north of and contiguous to respondent's land in Block 1 and is described in the complaint as follows:

'Beginning at the Northwest corner of Block One (1) of Miller's Amended Addition to Smelterville, Idaho, according to the official and recorded plat thereof on record in the office of the County Recorder, Shoshone County, State of Idaho; running thence North 18~ 18' West, 12.71 feet to a point; thence North 71~42' East, 37.02 feet to a point; thence South 18~ 18' East, 20.18 feet to a point; thence South 83~ 20' West, 37.82 feet to the place of beginning; subject to an easement in the Washington Water Power Company, a corporation, to erect, maintain and care for an electrical distribution line on and over said above described premises.'

The locale with which we are concerned in this action is shown by the plat of Miller's Amended Addition to Smelterville, Idaho, being Plaintiff's Exhibit No. 6, copy of which is inserted herein:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Under date of July 31, 1906, the owners of Lot Four (4), Section Two (2), Township Forty-eight (48) North, Range Two (2) E.B.M., granted a right-of-way 100 feet in width over and across said Lot 4 to the Washington Water Power Company. This right-of-way is shown on Plaintiff's Exhibit No. 6. The land in question in this suit is a part of the south 20 feet of the 100-foot strip covered by the right-of-way. The granting part of the conveyance to the Washington Water Power Company, reads as follows:

'Witnesseth, that the said parties of the first part, for and in consideration of the sum of Three Hundred ($300) dollars, lawful money of the United States of America, to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, convey and confirm unto the said party of the second part, its successors and assigns, a right of way over and across that certain strip of land lying and being in the County of Shoshone, State of Idaho, upon and across Lot Four (4) of Section Two (2) and Lot One (1) of Section Three (3), Township, Forty-eight (48) North, Range 2 E.B.M., in said Shoshone County, which said strip of land is thirty-five (35) feet on the northerly side and sixty-five feet on the southerly side of the electric power transmission and telephone lines of the second party, as located and constructed over and upon said premises, reserving, however, unto the parties of the first part, their successors and assigns, the right and privilege of entering into and upon said premises and clearing the same for cultivation and all other farming purposes, and the right to use the surface of said premises for farming purposes without, in any manner interfering with the use of said premises by the party of the second part in the maintenance and operation of said power transmission line.

'The above and foregoing premises are hereby conveyed to the said second party for the purpose of constructing, maintaining and operating thereon and thereover, electric power transmission and telephone lines, and for use for said purposes, and for the purpose of doing any and all matters and things that are legal and lawful and that may be necessary or desirable in connection with the erection, maintenance, construction or operation of said lines, or either of them.'

On May 17, 1916, the owners of said Lot 4 of Section 2, conveyed the same to E. W. Miller without any reservations. On October 26, 1927, E. W. Miller and wife conveyed to the Papesh Meat Company, a corporation, all that portion of said Lot 4 of Section 2, lying north of the county road, but excluding from such conveyance the right-of-way of the Washington Water Power Company situated thereon.

The appellant claims title to the land by virtue of two deeds, in both of which he is the grantee. The first is a quitclaim deed dated May 5, 1949, executed by the widow and children of E. W. Miller, deceased. The second is a quitclaim deed dated October 12, 1949, executed by the Papesh Meat Company, a corporation. These deeds cover the same land, and the tract in controversy is a part thereof.

Respondent, for his first defense, contends that appellant has no legal title to the land in controversy. Respondent urges that the conveyance of July 31, 1906, to the Washington Water Power Company vested a title in fee in the company and was not an easement for a right-of-way, as contended by appellant. The court found that the record title to the land was in the company subject to a reservation of grantors to use the surface thereof for farming purposes. Respondent's contention is contrary to his pleading in his cross-complaint wherein he alleges that he is the owner of the land in question subject to an easement in the Washington Water Power Company.

Respondent cites Las Posas Water Co. v. Ventura County, 97 Cal.App. 296, 275 P. 817, 818, in support of his contention. In such case there was a grant of certain described premises without reservation but the word, 'road' was used in the description of the land and the words, 'as a public highway' were used in the habendum clause. The court construed the conveyance to transfer the fee and not a mere easement.

The conveyance to the Washington Water Power Company does not grant certain described premises, but only purports to convey 'a right-of-way over and across that certain strip of land (describing it)' to the company for the purpose of constructing and maintaining electric power transmission and telephone lines thereon.

In interpreting and construing deeds, 'the primary rule to be observed is that the real intention of the parties, particularly that of the grantor, is to be sought and carried out whenever possible, * * *. The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities subject to be cleared up by resort to the intention of the parties as gathered from the instrument itself, the circumstances attending and leading up to its execution, and the subject matter and the situation of the parties as of that time.' 16 Am.Jur., Deeds, § 168, pp. 531-532.

It will be noted respondent testified he was informed by the company that it did not claim to own the land; and that the written evidence on the part of appellant is to the effect that the company does not claim title in fee to the land.

It seems clear, under the quoted rules of construction, that all that was conveyed to the Washington Water Power Company and all that the parties intended should be conveyed was an easement for a perpetual right-of-way; and that the fee was to and did remain in the grantors. The interest and title remaining in the grantors after the conveyance to the Washington Water Power Company, was transferred to E. W. Miller by the deed of May 17, 1916; and thereafter apparently transferred by Miller and wife to the Papesh Meat Company by the deed of October 26, 1927. The record title to such land was lodged in appellant by virtue of the two quitclaim deeds hereinbefore described; and the trial court erred in holding otherwise.

Respondent pleaded and urges that as against appellant he is the owner of the premises in question by adverse possession. It appears from the record that respondent, prior to the summer of 1945, had erected a building on his 37.02 feet of the west end of Block 1. That in the summer of 1945, and more than five years prior to the commencement of this action, he leased such building to M. J. Kalsto and Kenneth Grossarth, and permitted the lessees to construct an addition to his building on the north side thereof which addition extended across the north line of Block 1 and onto the land in issue. Such addition is still in place. The record does not disclose the size of that portion of the addition extending onto and occupying a part of the land in question.

Section 5-209 I.C. is as follows:

'Possession under oral claim of title.--Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely.'

Section 5-210 I.C., reads as follows:

'Oral claim--Possession defined--Payment of taxes.--For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:

'1. Where it has been protected by a...