Jacobs v. Miller

• Decision Date: 14 November 1961
• Docket Number: No. 50366,50366
• Citation: Jacobs v. Miller, 111 N.W.2d 673, 253 Iowa 213 (Iowa 1961)
• Parties: Bernice Pangborn JACOBS and H. V. Pangborn, Appellees, v. Carlyle MILLER et al. And All Unknown Claimants to the Real Estate Described as Follows: Commencing at a point 33 feet west and 2,043 feet south of the northeast corner of Section 25, Township 84 North, Range Two (2) East of the Fifth P.M. in Jackson County, Iowa, being the center line of the main track (now removed) of the Chicago and Northwestern Railway Company, the point of beginning; thence south along the west line of South Main Street in the City of Maquoketa, Iowa 125 feet; thence South 88 degrees-fifteen minutes west 845 feet; thence north one degree-forty-five minutes west 75 feet; thence south 88 degrees-fifteen minutes west 400 feet to the east line of South Fifth Street; thence North along the east line of said South Fifth Street 50 feet to the center line of said main track and also north along the east line of said South Fifth Street 50 feet to the north Right of Way line of said Railway Company; thence north 88 degrees-fifteen minutes east 400 feet; thence north one degree-forty-five minutes west 50 feet; thence north 88 degrees-fifteen minutes east 845 feet to the west line of said South Main Street; thence south along the west line of said South Main Street 100 feet to the point of beginning, containing 5.28 acres more or less, all in Jackson County, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 673

111 N.W.2d 673

253 Iowa 213

Bernice Pangborn JACOBS and H. V. Pangborn, Appellees, v.Carlyle MILLER et al. And All UnknownClaimants to the Real Estate Described as Follows: Commencing at a point 33 feet west and 2,043 feet south of the northeast corner of Section 25, Township 84 North, Range Two (2) East of the Fifth P.M. in Jackson County, Iowa, being the center line of the main track (now removed) of the Chicago and Northwestern Railway Company, the point of beginning; thence south along the west line of South Main Street in the City of Maquoketa, Iowa 125 feet; thence South 88 degrees-fifteen minutes west 845 feet; thence north one degree-forty-five minutes west 75 feet; thence south 88 degrees-fifteen minutes west 400 feet to the east line of South Fifth Street; thence North along the east line of said South Fifth Street 50 feet to the center line of said main track and also north along the east line of said South Fifth Street 50 feet to the north Right of Way line of said Railway Company; thence north 88 degrees-fifteen minutes east 400 feet; thence north one degree-forty-five minutes west 50 feet; thence north 88 degrees-fifteen minutes east 845 feet to the west line of said South Main Street; thence south along the west line of said South Main Street 100 feet to the point of beginning, containing 5.28 acres more or less, all in Jackson County, Iowa, Appellants.

No. 50366.

Supreme Court of Iowa.

Nov. 14, 1961.

Holleran, Holleran & Shaw, Clinton, for appellants(except Sinclair Refining Co.).

E. C. Halbach and Lloyd G. Jackson, Clinton, for appellees.

THORNTON, Justice.

This is an action to quiet title to a portion of an abandoned railroad right of way in Maquoketa.Plaintiffs claim title by virtue of reversionary clauses in the deeds given to the railroads and defendants claim as abutting owners and is a separate division, ask Adams Street and Third Street as platted be declared to be established as public streets in Maquoketa.The trial court quieted title in plaintiffs and defendants appeal.

It is our duty to review the case de novo.Rule 334,Rules of Civil Procedure,58 I.C.A.;Rand v. Miller, 250 Iowa 699, 95 N.W.2d 916;andSnater v. Walters, 250 Iowa 1189, 98 N.W.2d 302.Plaintiffs must recover on the strength of their own title, not on the weakness of defendants', but need only show title superior to defendants.Atkin v. Westfall, 246 Iowa 822, 825-826, 69 N.W.2d 523, and citations.

The portion of the right of way claimed by plaintiffs is the former Chicago and North Western Railway Company depot area in Maquoketa.The tract in question abuts the west line of South Main Street.It is 225 feet north and south and extends west 845 feet at the same width, and then extends west 400 feet to the east line of Fifth Street 100 feet wide and contains 5.28 acres more or less.

Pangborn's Subdivision to Maquoketa was originally platted August 20, 1856, by Jason Pangborn, the predecessor in interest of plaintiffs.This subdivision is located in the Northeast Quarter of Section 25-84-2 East of the 5th P.M.From Exhibit 'A', a map representing the City of Maquoketa as it was at the time of trial, and an unnumbered exhibit purporting to show the vacation of a portion of this subdivision, it appears the right of way in question is located in the south portion of this subdivision.On December 6, 1856, said Pangborn deeded to Iowa Central Air Line Railroad Company a strip of land 100 feet wide through the Northeast Quarter of Section 25-84-2 East of the 5th P.M., being 50 feet wide on each side of the center line of said railroad as determined by the engineers of the railroad.This deed contained the following:

'Provided, that in case said Railroad Company do not construct the said Railroad through said tract of land, or shall after construction, permanently abandon the route through said tract of land, the same shall revert to, and become the property of the said grantors, their assigns, forever.'

This deed also conveyed five acres to the railroad for depot ground to be selected by the chief engineer of the railroad and provided if the ground was not so used it was to revert to the grantors.

The above deed was stipulated to and it was also stipulated the grantors were the owners of the ground at the time of the conveyance.On April 28, 1870, Pangborn conveyed a similar 100 foot strip through the south half of the same quarter section to the Iowa Midland Railway Company with a similar reverter clause.And on February 29, 1872, Pangborn conveyed to the Iowa Midland Railway Company a strip of land through the south half of the same quarter, beginning on the east section line and extending westerly for 883 feet parallel with the center line 'as the same is now constructed' being 100 feet on the north of the center line and 125 feet on the south, and a strip 50 feet on each side of the center line through the balance of the quarter section.This deed contained a similar reverter clause.

It was stipulated the Chicago and North Western Railway Company was the ultimate grantee and assignee of, and held whatever title the prior railroads had and that the Chicago and North Western Railway Company did abandon the said right of way in 1951 or 1952.

It was also stipulated that Jason Pangborn was the owner of the land from which the original right of way was deeded.

I.Defendants contend the court erred in holding the abandoned right of way reverted to the original grantors or their heirs or assigns.They contend the right of way reverts to them under chapter 473, Code of Iowa, 1958, I.C.A.They do not specify section 473.1 relating to reversion of a wholly abandoned right of way by the relocation of the line, or section 473.2 relating to reversion for failure to use, operate or construct for a period of eight years.These sections provide for the reversion of the right of way to the persons (section 473.1) who are owners of the tract from which the right of way was taken, either at the time of the abandonment, section 473.1, or at the time of the reversion, section 473.2.It is not necessary to determine which section is applicable.See, Chadek v. Alberhasky, No. 50407, filed October 17, 1961, Iowa, 111 N.W.2d 297.

The parties stipulated defendants were owners of property abutting the right of way prior to and at the time of the abandonment and plaintiffs were the successors in interest of Jason Pangborn and his wife.

We have held chapter 473, Code of Iowa, 1958, I.C.A., applicable to cases where the railroad acquired the land by condemnation or by deed conveying only a right of way for railroad purposes, seeSmith v. Hall, 103 Iowa 95, 72 N.W. 427, Atkin v. Westfall, 246 Iowa 822, 69 N.W.2d 523, andKeokuk County v. Reinier, 227 Iowa 499, 288 N.W. 676, and inapplicable to cases where the railroad acquired the right of way in fee simple, seeMontgomery County v. Case, 212 Iowa 73, 232 N.W. 150, Des Moines City Ry. Co. v. City of Des Moines, 183 Iowa 1261, 159 N.W. 450, 165 N.W. 398, L.R.A.1918D, 839 and Watkins v. Iowa Cent. Ry. Co., 123 Iowa 390, 98 N.W. 910.See also Comment, 25 Iowa Law Review 685.

In each of the above caseswe have given consideration to the wording of the conveyance to determine whether a fee simple title was intended or an easement for right of way purposes, and determined the rights of the parties therefrom.We have not allowed the statute to interfere with the right of the parties to contract.

In this case the contest is between plaintiffs, the successors in interest of the original grantors in the deeds to the railroad, and defendants, the present abutting owners who with their predecessors by stipulation have held title since prior to 1900.We have not previously passed on the rights of such parties.Nor do the conveyances here fall into the right of way or fee simple cases above referred to.The deeds here granted to the railroads a base or determinable fee reverting automatically upon the happening of the event stated in the deed.This reversionary interest remaining in the grantors is a possibility of reverter.This possibility of reverter is inheritable.Reichard v. Chicago, B. & Q. R. Co., 231 Iowa 563, 1 N.W.2d 721.Therein we also said it was alienable at pages 577 and 582 of 231 Iowaat pages 730 and 732 of 1 N.W.2d.The Reichard case was before this court on a motion to dismiss on the pleadings and our holding was that the petition averring a deed to the railroad containing a reversionary clause identical with the ones here under consideration and the permanent abandonment of the route stated a good cause of action against the successors in interest of the railroad.

If we follow this reasoning we have the plaintiffs holding a saleable as well as an inheritable right.At the time the first deed was given to the railroad in December of 1856 the only code provision relating to abandonment, non user or reverter of railroad rights of way is found in chapter 46, Taking Private Property for Works of Internal Improvement, section 776, Code of Iowa, 1851, chapter 55, section 1295, Revision of 1860.It is there provided the former owner may file a petition in district court to have the land restored to him upon refunding the purchase money without interest where the work is not commenced within one year, or where commenced work ceases for two years or after completion use ceases for two years.

The Thirteenth General Assembly enacted section 1260and1261, Code of Iowa, 1873, providing that failure to construct or use for ten years (changed to five years by the Fifteenth General Assembly in 1874) shall be deemed an abandonment, and permitted another railroad to acquire the rights of the former.Now sections 471.15and471.16, Code of Iowa, 1958, I.C.A.In these enactmentsthe legislature did not undertake to direct the course of the reversion of rights of way.The forerunner of what is now chapter 473 was first enacted by the Eighteenth General Assembly in 1...