Johnson v. Ocean Shore Railroad Co.

• Decision Date: 31 March 1971
• Citation: 94 Cal.Rptr. 68,16 Cal.App.3d 429
• Parties: Axel V. JOHNSON et al., Plaintiffs, Cross-Defendants and Respondents, v. OCEAN SHORE RAILROAD COMPANY, Defendant, Cross-Complainant and Appellant. Civ. 27717.
• Court: California Court of Appeals Court of Appeals

Page 68

94 Cal.Rptr. 68

16 Cal.App.3d 429

Axel V. JOHNSON et al., Plaintiffs, Cross-Defendants and Respondents, v. OCEAN SHORE RAILROAD COMPANY, Defendant, Cross-Complainant and Appellant.

Civ. 27717.

Court of Appeal, First District, Division 4, California.

March 31, 1971.

Vernon W. Humber, San Francisco, for appellant.

Carr, McClellan, Ingersoll, Thompson & Horn, David C. Carr, Burlingame, for respondents.

DEVINE, Presiding Justice.

This lawsuit consists of cross-actions to quiet title to a strip of land. The principal question is whether a grant 'for railroad purposes' conveyed a fee simple or only an easement. In 1906, Burlington Beach Land Company deeded a lot in what is now the City of Pacific to Ocean Shore Railway Company. (Appellant, successor, bears the less British name of Ocean Shore Railroad Company.)

The deed, written in handsome script by a scrivener, contains in the part which includes the grant itself, paragraphs which we denominate A, B, and C, for convenience in later discussion, but these letters are our own designation. It reads: A. 'That the said party of the first part, for and in consideration of the sum of Ten Dollars ($10.00) gold coin of the United States of America, to it in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold, conveyed and confirmed, and by these presents does grant, bargain and sell, convey and confirm, unto the said party of the second part, and to its successors and assigns forever, for railroad purposes only, all that certain lot, piece or parcel of land, situate, lying and being in the County of San Mateo, State of California, and particularly described as follows, to-wit: A strip of ground sixty (60) feet in width through property of Burlington Beach Land Company (a description by metes and bounds follows).'

B. 'It is made a part of this indenture that the said party of the first part shall convey to the said party of the second part, within one month after said road is finished and carrying passengers regularly to and through said property, by a good and sufficient deed, a plot of ground adjoining the right-of-way herein granted for a depot site, and shall at their own expense erect a depot upon site to be so granted. In consideration whereof, the said party of the second part in accepting these premises does hereby agree to stop on signal at the depot above mentioned all local trains.'

C. 'Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any way appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.'

Following this, there is the habendum, which reads: 'To have and to hold, all and singular the said premises, together with the appurtenances, unto the said party of the second part to its successors and assigns forever.'

Plaintiff, ¹ as ultimate grantee from successors of Burlington Beach Land Company, asserts that no more was conveyed than a right of way, which was abandoned about fifty years ago by the railroad. The railroad contends that its predecessor, the railway, acquired a fee simple to the land. Between 1906 and 1911, the spectacular but chimerical railroad was built through artichoke and vegetable farms over the cliffs from San Francisco to the San Mateo County shore. Open-air trains were run until 1920, to the delight of sightseers and picnickers, but to the ruin of the company's finances and the dismay of its stockholders. Discontinuance of service as a common carrier was allowed in 1920. Tracks had run across the subject property, but these were removed in about 1921 and there has been no railroad use since. The railroad has not put the land to any other use, nor posted notices on it, nor occupied it physically. The original grantor conveyed to another company in 1946, and this company conveyed to plaintiff in 1967. In 1952, Ocean Shore Railroad made a grant of an interest in the property to Laguna Salada Union School District, which, at trial, rested its case on the claims of Ocean Shore. The trial court found that the grant to the railroad was of an easement, not of a fee, that the easement was abandoned by non-use, that title reverted to the owners and that plaintiff owns a fee simple as grantee by reason of the chain of title from the owners in fee simple. The court decided against appellant on secondary or contingent issues as well.

The relevant principles of law are: 1) In construing a deed for a railroad right of way, the deed is usually construed as giving a mere right of way, although the terms of the deed would be otherwise apt to convey a fee. (Highland Realty Co. v. City of San Rafael, 46 Cal.2d 669, 678, 298 P.2d 15; Coon v. Sonoma Magnesite Co., 182 Cal. 597, 601, 189 P. 271; see People, By and Through Dept. of Public Works, v. Thompson, 43 Cal.2d 13, 21, 271 P.2d 507; Ocean Shore Railroad Co. v. Doelger, 127 Cal.App.2d 392, 399, 274 P.2d 23; Moakley v. Los Angeles Pacific Ry. Co., 139 Cal.App. 421, 422--425, 34 P.2d 218; Tamalpais Land & Water Co. v. Northwestern Pac. R.R. Co., 73 Cal.App.2d 917, 923--929, 167 P.2d 825.)

2) Where the limitation upon a grant appears in the granting clause itself, and not merely in the habendum or any other parts, the limitation ordinarily operates to confine the grant to that of an easement. (City of Glendora v. Faus, 148 Cal.App.2d 920, 307 P.2d 976; Marshall v. Standard Oil Co., 17 Cal.App.2d 19, 61 P.2d 520.) Although under modern law the common-law rule that the granting clause must prevail over the habendum or any later clause is not an absolute and that the intention of the parties, as gathered from the whole instrument, must govern (Basin Oil Co. of California v. City of Inglewood, 125 Cal.App.2d 661, 663, 271 P.2d 73), nevertheless, the place in which the limitation appears is an important element, as recognized in the Marshall and City of Glendora cases. ²

Not only does the deed refer expressly to 'right-of-way' herein granted, but it also shows, in the paragraph designated B, requiring the adjacent depot to be built at the landowner's expense, with the proviso for stopping of trains on signal, that the purpose of the grantor was to insure that what was conveyed would be used as an essential part of railroad transportation. Presumably this was done for the benefit of other lands of the realty company. We note, too, that the actual description commences by referring to a strip of land running through the grantor's property. This expression, although not conclusive, does suggest grant of a right of way only.

3) A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. (Civ.Code, § 1067.) In the case before us, the grant is expressed as 'for railroad purposes Only.' (Emphasis supplied.)

4) Even if the grant at its beginning, including the limitation, be absolutely irreconcilable with the later words conveying hereditaments, remainders and reversions, the former of the irreconcilable parts would prevail. (Civ.Code, § 1070.) The grant cannot be interpreted as conveying a fee simple in the land without nullifying words which were selected by the parties, the words referring to railroad uses.

But if we say we cannot nullify the words of limitation, how can we nullify the later words which appear to indicate the grant of a fee, such as 'tenements,' 'hereditaments,' 'appurtenances,' 'reversion and reversions,' 'remainder and remainders'? In the first place, we have given above the principles which require that if there be irreconcilable conflict, we must resolve it in favor of grant of an easement only. But the conflict, if any, is not so large as it may seem on a first reading. The interest in land which an easement constitutes is real property and itself may be held in fee simple. (Gerhard v. Stephens, 68 Cal.2d 864, 881, 69 Cal.Rptr. 612, 442 P.2d 692; Highland Realty Co. v. City of San Rafael, 46 Cal.2d 669, 677, fn. 1, 298 P.2d 15; Appeal of North Beach & M. R.R.Co., 32 Cal. 499, 509; City of Glendora v. Faus, 148 Cal.App.2d 920, 925, 307 P.2d 976; Ocean Shore Railroad Co. v. Doelger, 127 Cal.App.2d 392, 398--399, 274 P.2d 23; Irvin v. Petitfils, 44 Cal.App.2d 496, 500, 112 P.2d 688; Eastman v. Piper, 68 Cal.App. 554, 562, 229 P. 1002; 17 Cal.Jur.2d (Rev.) Easements, § 2, pp. 121--122.) Thus, the deed in this case giving an easement in fee simple, assures that successors to the original grantee, as appellant 'railroad' is the successor to the earlier 'railway,' will be entitled to the right of way unless it be abandoned.

But the point is made by appellant that since 'railway' was granted a reversion, in case of abandonment by 'railroad' title would revert to railway and this in turn would come to railroad by the general succession of railroad to all of the properties of railway. This proposition, however, is based on the erroneous conception that upon abandonment a reversion comes into operation. Although the word 'reverts' frequently is used in connection with abandonment of an easement, and was used in the court's findings in this case, the word is used in a general way and...