Keokuk County v. Reinier

• Decision Date: 21 November 1939
• Docket Number: 44816.
• Citation: 288 N.W. 676,227 Iowa 499
• Parties: KEOKUK COUNTY v. REINIER et al.
• Court: Iowa Supreme Court

288 N.W. 676

227 Iowa 499

KEOKUK COUNTY v. REINIER et al.

No. 44816.

Supreme Court of Iowa.

November 21, 1939

Appeal from District Court, Keokuk County; P. J. Siegers, Judge.

A suit in equity to quiet title in plaintiff to a strip of land formerly used as a railroad right of way, and crossing a governmental forty acres now owned by plaintiff. From a decree granting this relief and also injunctive relief against the defendants, they have appealed.

Affirmed.

Chas C. Heninger of Sigourney, and James J. Kelly, Jr., of Des Moines, for appellants.

Robert J. Shaw, of Sigourney, for appellee.

BLISS Justice.

This case was tried on stipulated facts.

In 1882 Alex R. Patterson, and five other grantors having the same last name, conveyed to the Chicago, Burlington & Pacific Railroad Company, by warranty deed, a strip of land 100 feet wide through the following tract of land, towit: " Northwest Quarter of the Northwest Quarter of Section 21, in Township 74, North of Range 11 West of the 5th P. M. Iowa (and other land.) The said strip of land being 50 feet on each side of the center line of said railroad as now located by said Company, to have and to hold said strip of land for all purposes incident and necessary to the construction and operation of a railroad and telegraph line or lines thereon."

The railroad was constructed by the grantee, or by those claiming under it, and for many years the Minneapolis and St. Louis Railway Company maintained and used a standard guage railway on the strip conveyed. About two years before the commencement of this action, said Railway Company abandoned this right of way and strip of ground for railway purposes and removed the track and all of its equipment thereon, and on May 3, 1937, executed to the defendant, Guy Reinier, a quit claim deed to said strip. He is the husband of his co-defendant.

Guy Reinier, by mesne conveyances, is the owner of all right title, and interest conveyed or granted by the Patterson deed, unless it has reverted to the plaintiff, and the plaintiff is the owner, by mesne conveyances of all the land, abutting this strip on each side, in the governmental forty acres from which it was taken.

Section 7861 of the Iowa Code of 1935 is as follows: " Relocation of railway. Such part of a railway right of way as is wholly abandoned for railway purposes by the relocation of the line of railway, shall revert to the persons who, at the time of the abandonment, are owners of the tract from which such abandoned right of way was taken."

The plaintiff bases its right to the decree, prayed for and entered, solely as the owner, by reversion, under said section, of the strip of land in controversy.

The defendants base their ownership of the strip, and their right to a reversal of the decree, upon the ground that the Patterson deed to the railroad company, conveyed to the latter, not a mere right of way across the forty acres, but an absolute title in fee simple, which was not subject to reversion under the statutory provision. They rely chiefly upon the decisions of this court in Watkins v. Iowa Central Railway Company, 123 Iowa 390, 98 N.W. 910; Des Moines City Railway Co. v. Des Moines, 183 Iowa 1261, 159 N.W. 450, 165 N.W. 398, L.R.A.1918D, 839, and Montgomery County v. Case, 212 Iowa 73, 232 N.W. 150.These decisions are not controlling in the case before us. In the case first cited [ 123 Iowa 390, 98 N.W. 912], the deed of bargain and sale to the railroad company conveyed: " So much of the southwest quarter * * * as lies within fifty feet of the center line of the main track of the Iowa Central Railroad, as the same is surveyed, staked out and marked upon the ground, being fifty feet in width on each side of said center line." The conveyance was in no way limited. As the court therein said: " There is no showing in the deed that this was for a right of way, or that it was to be used for railway purposes. The deed, on its face, conveys an absolute estate in fee simple." The court held that, under such a deed, the title of the railway company was not lost by non-user. Justice Weaver, with Justice McClain concurring, disputed the last proposition in a very able dissent.

In the second cited case, it appears that originally the corporate limits of Des Moines extended west only to a point between 37th and 38th streets. The town of Greenwood Park immediately west, had granted to the plaintiff's grantor the right to construct its railway upon a 65-foot street running through the town. From the corporate limits eastward on what is now Ingersoll Avenue, to 28th street, the plaintiff obtained deeds to a 20-foot strip, from the abutting property owners, who also dedicated to the city a 40-foot strip on each side, for street purposes. When the latter strips were paved by the city, an assessment for the cost of the paving was levied against the 20-foot strip, as abutting property. ...