J & S Bldg. Co., Inc. v. Columbian Title & Trust Co.

• Decision Date: 22 April 1977
• Docket Number: No. 48260,48260
• Parties: J & S BUILDING COMPANY, INC., Appellant, v. The COLUMBIAN TITLE & TRUST COMPANY, Appellee.
• Court: Kansas Court of Appeals

Page 1086

563 P.2d 1086

1 Kan.App.2d 228

J & S BUILDING COMPANY, INC., Appellant, v. The COLUMBIAN TITLE & TRUST COMPANY, Appellee.

No. 48260.

Court of Appeals of Kansas.

April 22, 1977.

Syllabus by the Court

1. A statute adopted from another state carries with it the construction placed upon it by the courts of that state, but an exception to the rule is that the construction of a statute by the highest court of the original state after it is adopted by another has no controlling effect on the adopting state. (Following State ex rel. v. Schutts, 217 Kan. 175, Syl. 1, 535 P.2d 982.)

2. Upon vacation of a street or highway dedicated for public use under the common law, the burden of the easement is lifted and the full enjoyment of the fee is restored to the owners of the adjoining lands.

3. Ownership of a tract adjoining a street or highway dedicated to public use under the common law is presumed to extend to the center of the roadway and such ownership passes with the conveyance of the adjoining tract, absent a clear intent to the contrary.

4. At common law the dedication of a street or highway for public use does not operate to divest the owner of the adjoining land from which the roadway was taken of the fee title and the public acquires only an easement.

5. The common law relating to streets and highways dedicated for public use and thereafter vacated remains in effect except as modified by statute.

6. The provisions of K.S.A. 12-406 operate to vest fee title to property statutorily dedicated for public use in the county forever.

7. Owners of property adjoining a street dedicated for public use under the statutes of this state do not own any present interest in that street which may be reserved in a conveyance of their adjoining property.

8. When in 1925 the property here involved was platted into lots and the streets shown thereon dedicated to public use and such plat was duly filed and recorded pursuant to the statute, the dedicators and their successors in title had nothing but the lots to convey.

9. Under the facts and circumstances set forth in the opinion, an attempted reservation of an interest in adjoining streets before those streets are vacated is ineffective and void and such does not constitute a defect in title to the platted lots which will permit recovery under the terms of the policy of real estate title insurance here involved.

H. Thomas Payne, of Payne & Jones, Chartered, Olathe and F. Allen Speck, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for appellant.

Carl L. McCaffree, of McCaffree & Grimshaw, Chartered, Olathe ane Gerald L. Goodell, of Goodell, Casey, Briman & Cogswell, Topeka, for appellee.

Before HARMAN, C. J., and REES and SPENCER, JJ.

SPENCER, Judge:

In an action against a title insurance company for damages resulting from an alleged defect in title to real estate, judgment was rendered for defendant and plaintiff appeals.

This case was submitted to the trial court upon stipulated facts in substance as follows:

Prior to January 18, 1964, Joseph W. McMurray and Marie McMurray, husband and wife, were the fee owners of the following described tract of land:

Lots 1 to 6 inclusive, and Lots 8 to 11 inclusive, resurvey of Lots 3 and 15, Sunset Hill, a subdivision in the City of Overland Park, Johnson County, Kansas.

On January 18, 1964, the McMurrays conveyed this real estate to Frank R. Johnston and Fern Johnston by warranty deed which contained the following reservation:

'The grantors herein do expressly reserve unto themselves, their heirs, successors and assigns, all right, title and interest of the grantors in and to the right-of-way of the Strang Line and the right-of-way of Locust Street as platted, if any. It is the intent of the within Warranty Deed to convey only the property within the platted boundaries of the lots above described and to reserve to the grantors any present title and interest in, or rights of reversion to any property not within the boundaries of said lots.'

This deed was duly recorded on February 27, 1964.

On March 31, 1965, Frank R. and Fern Johnston, with others, conveyed the real estate to the plaintiff. The legal description of the tract so conveyed is identical to the description of the tract owned by the McMurrays prior to January 18, 1964. This deed did not set forth any exception for the interests purported to have been reserved in the deed of January 18, 1964, from the McMurrays to the Johnstons.

Under date of April 21, 1965, the defendant issued its title insurance policy whereby it undertook to insure the plaintiff as follows:

'. . . (A)gainst all loss or damage which the party guaranteed shall sustain by reason of defects in the title of the party or parties as set forth in Schedule A below to the real estate or interest therein described, or by reason of liens or incumbrances affecting the title, at the date hereof, excepting only such defects, liens, incumbrances and other matters as are set forth in Schedule B below.

'This Company agrees to defend, at its own cost and expense, the title, estate or interest hereby guaranteed in all actions or other proceedings which are founded upon, or in which is asserted by way of defense, a defect, claim, lien or incumbrance against which this policy guarantees.'

Schedule A sets forth the title guaranteed by the policy as 'FEE SIMPLE TITLE vested in J & S Building Company, Inc.,' and describes the real estate as hereinbefore set forth. Schedule B makes reference to special exceptions, none of which relate to the McMurray reservation.

On the date the title insurance policy was issued and at all other times relevant to this cause, there existed a recorded plat of the tract of land in question showing the lots as described in the conveyances mentioned as well as in the insurance policy and the two streets here involved which had been dedicated for public use. A copy of that plat is a part of the record on appeal.

Under date of January 16, 1967, the city of Overland Park, Kansas, enacted ordinances vacating the two streets adjoining the subject real estate pursuant to the authority of K.S.A. 13-443.

The record reveals that under date of March 16, 1972, plaintiff sold the tract in question to the Gas Service Company. In connection with this sale plaintiff was required to furnish a title insurance policy. Pursuant to this requirement and in anticipation of the sale, on November 8, 1972, plaintiff secured a commitment for title insurance from Chicago Title Insurance Company on the real estate above described, except:

'. . . (T)hat part of Lots 6 and 10 conveyed to Overland Park by deed recorded as File No. 906333, in Volume 821, at page 522, together with the Northerly 1/2 of vacated Locust Street lying Southerly of and adjacent to Lots 1 thru 5, and the East 1/2 of vacated King Street (Howard Avenue) lying West of and adjacent to Lot 3 and vacated King Street (Howard Avenue) lying between that part of the premises in question in Lots 4, 6, 8, 9 and 10.'

This commitment referred specifically to the conveyance by the McMurrays to the Johnstons recorded February 27, 1964, and required that a conveyance from the McMurrays be secured as to that part of the vacated streets included in the land description.

Contending that the interest reserved by the McMurrays (admittedly not referred to in defendant's policy on the tract) constituted a defect under that policy, plaintiff made claim against the defendant, which claim was subsequently denied.

Thereafter, plaintiff paid the sum of $5,000 to the McMurrays for a quitclaim deed to whatever interest in the vacated streets may have been reserved, retained or attempted to be reserved or retained by the January 18, 1964, deed from the McMurrays to the Johnstons hereinbefore referred to.

The trial court entered its final conclusions of law as follows:

'1. Fee simple title to real estate adjoining streets which have been dedicated pursuant to K.S.A., Section 12-406 includes a reversionary interest in such streets to the center line thereof in proportion to the frontage of such land, except where such streets may have been taken for public use in a different proportion, in which case such title includes a reversionary interest in the same proportion as such streets were taken from such adjoining land.

'2. The fee simple owners of such land may effectively reserve or retain such reversionary interest in a conveyance of such land by deed.

'3. A conveyance by deed in the chain of title in which the grantors have reserved or retained such reversionary interest does not constitute a defect affecting the title to such land within the terms of the title insurance policy issued to plaintiff by defendant The Columbia Title & Trust Company.

'4. The reservation in the deed from Joseph and Marie McMurray to Frank R. and Fern Johnston, a copy of which is attached to the stipulation of facts filed herein, was not a title defect on the date of the issuance of said title insurance policy and was not the basis of a bona fide claim against the title to the plaintiff to said tract.

'5. It is hereby determined and ordered that plaintiff take naught by its petition and its prayer for relief is denied.'

The principal issue here involved is whether at the time the McMurrays attempted to reserve an interest in the streets adjoining their lots, they owned any interest in the streets which they could reserve. In 26 C.J.S. Deeds § 139 a, p. 1003, it is stated:

'To be valid a reservation or exception must have something to operate on; it must refer to something conveyed.

'An exception or reservation is void . . . where the grantor had no interest or estate in the thing excepted.'

Thus, the question becomes whether under Kansas law the owner of a city lot, described only by lot number and subdivision, has any interest in an adjoining statutorily dedicated street which may effectively be reserved so as to pass to him when the street is vacated after he has...