Kozak v. State Game and Parks Commission

• Decision Date: 19 January 1973
• Docket Number: No. 38525,38525
• Parties: Jerry E. KOZAK and Julia Kozak, Appellants, v. STATE of Nebraska, GAME AND PARKS COMMISSION, Appellee.
• Court: Nebraska Supreme Court

Page 516

203 N.W.2d 516

189 Neb. 525

Jerry E. KOZAK and Julia Kozak, Appellants, v. STATE of Nebraska, GAME AND PARKS COMMISSION, Appellee.

No. 38525.

Supreme Court of Nebraska.

Jan. 19, 1973.

Syllabus by the Court

1. The plaintiff in ejectment must prevail, if at all, upon the strength of his own title and not upon the weakness of his adversary's title.

2. In an action of ejectment, when the plaintiff's testimony shows defendant in possession of the disputed lands under a claim of ownership, plaintiff must then recover on the superiority of his title, and, if he relies on a record or paper title, he must show a regular chain of title from the government, or from some grantor in possession, or from a common source from which each of the litigants claims.

3. The effect of an exception is to exclude from the operation of the conveyance the interest specified and it remains in the conveyor unaffected by the conveyance.

4. A right or interest reserved in a duly recorded conveyance will be effective as against all who deraign title through the grantee, although the reservation is not expressed in subsequent deeds. Similarly, the fact that subsequent deeds contain no language showing exceptions made in a former deed within the chain of title does not abrogate or destroy such exceptions.

Witte & Donahue, Donald E. Benton, Pawnee City, for appellants.

Ginsburg, Rosenberg, Ginsburg & Krivosha, Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ.

SPENCER, Justice.

This is an appeal from the sustaining of appellee's motion for a summary judgment dismissing the ejectment action filed by the appellants and overruling appellant's motion for summary judgment. We affirm.

In 1886, the Chicago, Kansas and Nebraska Railway Company extended its right-of-way through southeastern Nebraska in Pawnee and Gage counties. The railroad purchased part of the right-of-way and the remainder was condemned. The right-of-way, consisting of 14.13 acres taken out of the south half of Section 3, Township 3, Range 8, Gage County, Nebraska, was condemned. The property involved herein is that portion taken out of the southwest quarter of Section 3. The Chicago, Rock Island and Pacific Railroad Company succeeded the Chicago, Kansas and Nebraska Railway Company, and used the land for railway purposes until September 1968, when it conveyed all its right-of-way by deed to the State of Nebraska, Game and Parks Commission.

At the time of the condemnation, L. L. Kirby was the owner of Section 3. Thereafter, on August 27, 1894, said L. L. Kirby conveyed the entire section 'subject to the right of way aforesaid' by deed to James H. Kirby and Justus A. Kirby. Subsequently, Justus A. Kirby acquired his cotenants' interest and became the owner of the entire section "subject to the right of way of C.K. and N. Railway across said premises." Thereafter, Justus A. Kirby conveyed the southwest quarter of Section 3 to Joseph Kozak "subject to right of way heretofore granted to C.R.I. and P.R.R. Co." Thereafter, Joseph Kozak and wife conveyed the southwest quarter to Mary Kozak with no reference to the railroad right-of-way. By deed dated July 9, 1945, Mary Kozak and her husband conveyed the same property to Ladd J. Hubka, but this deed contained the following 'except the railroad.' This deed further specified the amount of land conveyed was 154 acres. Thereafter, Ladd J. Hubka and wife conveyed the property to Jerry E. Kozak and Julia Kozak, husband and wife, by deed again containing the following 'except railroad right of way.'

This action is one for ejectment so there is no burden on the defendant to show title, but the plaintiffs must show title in themselves. They cannot rely upon any weakness in the defendant's title. The rule in this state is enunciated in Reams v. Sinclair (1911), 88 Neb. 738, 130 N.W. 562: '* * * the plaintiff in ejectment must prevail, if at all, upon the strength of his own title, and not upon the weakness of his adversary's.'

The parties stipulated that for the purpose of this action the defendant claims ownership of the land involved herein and the right to possession of the same. In Runkle v. Welty (1907), 78 Neb. 571, 111 N.W. 463, this court held: 'In an action of ejectment, when the plaintiff's testimony shows defendant in possession of the disputed lands under a claim of ownership, plaintiff must then recover on the superiority of his title, and, if he relies on a record or paper title, he must show a regular chain of title from the government, or from some grantor in possession, or from a common source from which each of the litigants claims.'

Appellants admit that the deed from Mary Kozak and husband to Ladd J. Hubka contained the following description: '* * * to-wit: The SW 1/4 except the railroad, of Section 3, Township 3, Range 8, Gage County, Nebraska, 154 acres, more or less.' They further admit that the deed from Ladd J. Hubka and wife to Jerry E. Kozak and Julia Kozak contained the following description: "The SW 1/4, except railroad right of way, Section 3, Township 3, Range 8, Gage County, Nebraska." Appellants further admit that by deed dated September 20, 1968, the Chicago, Rock Island and Pacific Railroad Company conveyed to State of Nebraska, Game and Parks Commission, the real estate involved herein, as follows: "All of grantor's abandoned railroad right of way described as being in the SW 1/4 of Section 3, Township 3, Range 8, Gage County, Nebraska, * * *." Appellants further admit that by deed dated June 19, 1969, Jerry E. Kozak and Julia Kozak, husband and wife, purported to convey to Julia Kozak the 'SW 1/4 of said Section 3, Township 3, Range 8, Gage County, Nebraska.'

It is to be noted that as described above, from the first conveyance of the southwest quarter, the conveyance has been subject to or excepts the railroad right-of-way. We interpret this language in the light of Elrod v. Heirs, Devisees, etc. (1952), 156 Neb. 269, 55 N.W.2d 673, in which we said: "An exception is said to be a withdrawal from the operation of the grant, of some part of the thing granted; while a reservation is of some new thing issuing out of what is granted. Thus, where real estate is granted, a portion thereof may be excepted from the terms of the conveyance, * * *. If the exception be valid, the title to the thing excepted remains in the grantor, the same as if no grant had been made. * * * an exception in a deed is nothing more than a qualification, by which some part of the estate is not conveyed, which would have passed to the grantee but for the exception.' * * *

'In Restatement, Property, § 27, p. 80, it is said concerning an exception that: '* * * The effect of an exception is to exclude from the operation of the conveyance the interest specified and it remains in the conveyor unaffected by the conveyance."

The rule is thus summarized in 23 Am.Jur.2d, Deeds, s. 268, p. 303: 'A right or interest reserved in a duly recorded conveyance will be effective as against all who deraign title through the grantee, although the reservation is not expressed in subsequent deeds. Similarly, the fact that subsequent deeds contain no language showing exceptions made in a former deed within the chain of title does not abrogate or destroy such exceptions.'

Appellants premise their action herein on their contention that the railroad acquired only an easement by condemnation, and not fee title. It is not necessary for us to consider the nature of the interest acquired by condemnation. If it was less than a fee interest, applying the rule in Elrod v. Heirs, Devisees, etc., Supra, appellants have not established sufficient title in themselves to maintain this action. The ruling of the trial court was correct for the reason that appellants must recover on the strength of their own title, and not on any apparent weakness that may exist in the title by the State of Nebraska, Game and Parks Commission.

Affirmed.

SMITH, J., participating on briefs.

WHITE, Chief Justice (dissenting).

I would reverse. It is certainly true, as the majority holds, that the plaintiff in an ejectment action must recover, if at all, on the strength of his own title rather than the weakness of his...