Jones v. New Orleans & N. E. R. Co.

• Decision Date: 09 June 1952
• Docket Number: No. 38453,38453
• Citation: 59 So.2d 541,214 Miss. 804
• Court: Mississippi Supreme Court
• Parties: JONES et al. v. NEW ORLEANS & NORTHEASTERN R. CO. et al.

Page 541

59 So.2d 541

214 Miss. 804

JONES et al. v. NEW ORLEANS & NORTHEASTERN R. CO. et al.

No. 38453.

Supreme Court of Mississippi.

June 9, 1952.

Hedgepeth & Norsworthy, Jackson, for appellants.

J. E. Skinner, Jackson, Cameron & Wills, Meridian, for appellees.

ETHRIDGE, Justice.

This case involves principally questions of the interpretation of the effect of three deeds to a railroad, of whether abutting landowners, who have acquired title by adverse possession, own up to the center line of the adjoining railroad right of way, and of lack of process upon certain parties.

The appellants, 59 in number, are the lineal descendants of Ransom J. Jones, who at the time of his death intestate in 1872 owned the NE 1/4 of the NE 1/4 of Section 32, Township 1 North, Range 13 East, Jasper County, Mississippi. Ransom Jones left surviving him his widow, Melinda Jane Jones and eight children. Under the law in effect at that time, his widow received only a dower interest in the property, and his eight children received each a one-eighth interest. In October, 1881 and June and July, 1882, the widow and seven of the children executed deeds to the New Orleans and Northeastern Railroad Company, an appellee. One issue here is whether those deeds had the effect of purporting to convey only easements or fee titles to the minerals under 10.5830 acres covered in those deeds and which traversed the stated 40 acre tract across the approximate center and in a northeasterly direction. This land was claimed in fee by the railroad under these conveyances from the heirs of Ransom Jones and by adverse possession. The land is located within the Town of Heidelberg and in a producing oil field. All parties agree that the railroad owns easement rights over the strip of land; the main controversy is over the right to the oil, gas and other minerals. The estates ostensibly conveyed by the deeds are important because they thereby limit the otherwise admitted adverse possessory titles of the railroad.

I.

On October 6, 1881, M. J. Jones, apparently the widow of Ransom J. Jones, executed the following deed:

'Know All Men By These Presents, That for and in consideration of the benefits to accrue to me by the construction of the New Orleans and North Eastern Railroad, and for the sum of one dollar to me in hand paid by said Company, I hereby grant, bargain, sell and quitclaim unto the said New Orleans and North Eastern Railroad Company, a Right of Way for two hundred feet, through the following lands, to-wit:

'NE 1/4 of NE 1/4 and SW 1/4 Sec. 32 T. 1, N, R 13 E. Reserving the right to Cultivate any of Said land not used in the Construction and operating said land situated in said County, being one hundred feet from the centre of the Road Bed, on either side, to be constructed by said Company, and I hereby covenant to warrant and defend the title of said Company to said lands against any and all persons claiming under by or through me.'

This instrument clearly purported to convey to the railroad only an easement. It is substantially similar to the deed interpreted in New Orleans & Northeastern R. R. v. Morrison, 1948, 203 Miss. 791, 35 So.2d 68. See Annotations, 132 A.L.R. 142, 172 (1941); 136 A.L.R. 379 (1942).

On June 29, 1882, M. J. Jones, apparently the widow of Ransom J. Jones, executed for herself and for M. C. Jones, E B. Jones and W. B. Jones, heirs of Ransom J. Jones, this deed:

'In consideration of the benefits to accrue to us from the location of the Depot on our land by the New Orleans and North Eastern Rail Road Company and the further consideration of the sum of one dollar we sell and warrant to said New Orleans and North Eastern Rail Road Company the land described as follows:

'Beginning at a point one hundred feet west of where the located line of survey crosses the East and West boundary line between the SE 1/4 of NE 1/4 and the NE 1/4 of NE 1/4 of Section 32 TIN, R 13 E, in Jasper County, Mississippi and run West two hundred feet thence North Easterly paralel to the right of way and two hundred feet therefrom to a point in the NE 1/4 of NE 1/4 of said Section opposite Section 3052 of the Northern Division of said Rail Road, thence at right angles with said line two hundred feet to the right of way thence Southwesterly along the right of way to the point of beginning to have and to hold for Depot Sidings Switches and other Rail Road purposes.'

This instrument has the effect of ostensibly conveying to the railroad the fee title to a 200 foot wide strip of land immediately to the west of and adjacent to the railroad right of way. The deed is in the usual form of a general warranty deed conveying 'the land', described by metes and bounds. Code of 1942, Sec. 833. The clause in the latter part of the instrument 'to have and to hold for Depot Sidings Switches and other Rail Road purposes' can not limit the effect of the granting clause, if it is considered as repugnant to the granting clause. We think that this recitation is simply descriptive of the use to which the land will be put, and does not limit or restrict the estate conveyed. Mississippi Central R. Co. v. Ratcliff, Miss., 59 So.2d 311, decided this date; Annotation, 132 A.L.R. 142, 145, 159 (1941).

On July 14, 1882, L. S. Morrison, as attorney in fact for R. J. and K. A. Jones, M. A. Huddleston and M. J. Mounger, four of the heirs of Ransom J. Jones, executed the following deed to the railroad:

'In consideration of the benefits to accrue to us by the building of the New Orleans and North Eastern Railroad through our lands and the further consideration of one dollar to us paid we hereby convey and quit claim to the New Orleans and North Eastern Railroad Company the right of way of two hundred feet through the

'N 1/2 of NE 1/4 Sec. 32, T 1 N, R 13 E, Jasper County, Mississippi We also further sell, convey and quit claim to said Company a further strip of land two hundred feet wide on the West side of said Rail Road beginning at the boundary line between the N 1/2 and the S 1/2 of said NE 1/4 of said Section, where said boundary line crosses the said right of way and extending North Easterly to Station No. 3052 of Northern Division of said Road for depot, siding, switches and other rail road purposes.'

This deed undertakes to convey in the first grant a 200 foot easement over the 40 acres in question for the right of way of the railroad. The second granting clause conveys a fee title to a 'strip of land 200 feet wide on the west side' of the railroad. The west 200 feet is here conveyed in fee simple, including the minerals. The reference after the granting clause, 'for depot, siding, switches and other railroad purposes', is an expression of the purpose of the execution of the deed, but does not limit the effect of the granting clause. Mississippi Central R. R. Co. v. Ratcliff, supra; Annotation, 132 A.L.R. 142, 159 (1941). These interpretations of the three deeds affirm the conclusions of the chancery court.

II.

There is no record of a judicial partition of the lands in this 40 acre tract among the eight heirs of Ransom J. Jones after his death in 1872. It was stipulated that the courthouse at Paulding, in the First Judicial District of Jasper County, burned on September 10, 1932, that all of the deed records in it were destroyed in that fire and that neither the original nor any recorded version of any deed out of Ransom Jones or his heirs is available. However, W. B. Jones, the only surviving child of Ransom Jones, testified at the trial in April, 1951. He said that more than fifty years ago there was a judicial partition in the Chancery Court of the entire 40 acres, and that he had conveyed the five acres allotted to him in the partition to R. P. Clayton in about 1901. The chancellor found that this was a fact. W. B. Jones did not have any definite recollection about conveyances out of the other heirs of his father. However, his testimony and that of Madison Travis, an attorney, were undisputed that the railroad had been in possession of the 200 foot right of way and easement and also the 200 foot strip west of the right of way for about seventy years.

Appellees, Cecil Travis and twenty other persons claiming under their predecessor in title, M. G. Travis, have been in adverse possession of the land abutting and adjacent to the railroad right of way, other than as to the west, 200 foot fee strip of the railroad, for more than thirty-one years. In this suit they claimed the title to the minerals under and to the center of the railroad as appurtenant to their ownership on each side of the railroad right of way. Apparently the Jones heirs had transferred or abandoned any claim to the lands in this 40 acre tract early in the 1900's. The chancery court found that they lived in various sections of the United States, from the states of Washington to Florida, and that none of them had ever made any claim to any part of these lands or the minerals thereunder since they or their predecessors in title lost title to the abutting lands by adverse possession.

In November, 1945, by original and amended bills, over forty of the heirs of Ransom Jones filed a bill of complaint in the Chancery Court of the First Judicial District of Jasper County against appellee railroad, Rogers Lacy, and a number of other Jones heirs who were not parties complainant, alleging that the foregoing deeds conveyed only easements to the railroad, and that the complainants owned the minerals under it as the heirs of Ransom Jones. Later Cecil Travis et al., claiming under M. G. Travis, were made parties defendant to the bill, which averred that the Travis claimants were asserting title on each side of the railroad by adverse possession, which they concededly had, and that they were also claiming title to the minerals under and up to the center of the railroad right of way, appurtenant to their respective adverse possessory titles on each side of the railroad. The bill sought to cancel the...