L. & G. Realty & Const. Co. v. City of Indianapolis

• Decision Date: 04 January 1957
• Docket Number: No. 18781,18781
• Citation: 139 N.E.2d 580,127 Ind.App. 315
• Parties: L. & G. REALTY & CONSTRUCTION COMPANY, Inc., Appellant, v. CITY OF INDIANAPOLIS, a Municipal Corporation, Appellee.
• Court: Indiana Appellate Court

Page 580

139 N.E.2d 580

127 Ind.App. 315

L. & G. REALTY & CONSTRUCTION COMPANY, Inc., Appellant, v. CITY OF INDIANAPOLIS, a Municipal Corporation, Appellee.

No. 18781.

Appellate Court of Indiana, In Banc.

Jan. 4, 1957.

Rehearing Denied Feb. 11, 1957.

Harry M. Stitle, Jr., Indianapolis, Richard W. Adney, Lebanon, for appellant.

Michael Reddington, Corp. Counsel, Frank X. Haupt, City Atty., Arthur H. Northrup, Asst. City Atty., Indianapolis, Parr, Parr & Parr, W. H. Parr, Jr., Lebanon, for appellee.

PFAFF, Judge.

The proceedings under review here concern the title to certain real estate in the city of Indianapolis, Marion County, Indiana. The appellant, L. & G. Realty & Construction Company, Inc., alleging ownership in itself brought two actions in the Circuit Court of Marion County, against the appellee, City of Indianapolis, as sole defendant, setting out in each a description (not in dispute) of the particular property in controversy, one action seeking damages for the alleged wrongful taking and use of certain of the property and the other to quiet title thereto. The respective parties will be herein referred to as 'appellant' and 'appellee.'

After the formation of the issues both causes were venued to the trial court where they were consolidated for the purpose of trial. A trial by the court upon a joint stipulation of facts, resulted in a general finding and judgment following the overruling of appellant's motion for a new trial, duly filed. The sole error assigned here is the overruling of the motion for new trial.

The sufficiency of the pleadings is not questioned and no objection is made to the procedure followed in the trial court. This court will, therefore, proceed directly to the question presented.

The trial court finds in substance that appellant is the owner of the fee in the real estate described in both complaints, subject to an easement and right of way in the appellee; and that in erecting the bridge and the construction of the street the appellee was doing so under its easement and right of way, and that appellant recover nothing by its complaint for damages.

The judgment from which this appeal is taken, omitting formal parts and the description of the real estate reads:

'It is therefore hereby ordered, adjudged and decreed by the Court that L & G Realty and Construction Co., Inc., is the owner in fee of the following described real estate situated in Marion County, State of Indiana, to-wit: (Description omitted.)

'And it is further ordered, adjudged and decreed that the plaintiff take nothing by its complaint for damages.

'It is further ordered, decreed and adjudged that the plaintiff has the fee simple title to the real estate described herein, subject to an easement and right of way over the entire portion thereof, to which easement title is quieted in the City of Indianapolis, Indiana, free of any restrictions, conditions or agreements. * * *.'

The major questions presented to this court hinge upon a certain conveyance of the property affected. In 1903 James Huffman and Caroline Huffman, husband and wife, executed a conveyance of certain property described, including the property in issue, to the Indianapolis Northern Traction Company, which so far as material here reads:

'In consideration of Nine Hundred and Fifteen Dollars ($915.00) and other good and valuable considerations, the receipt whereof is hereby acknowledged, James Huffman and Caroline Huffman, his wife, of Marion County, in the State of Indiana.

Convey and Warrant

to Indianapolis Northern Traction Company, a corporation of the State of Indiana, the Right of Way for Railroad and other purposes over, upon and across the following real estate in the County of Marion, and State of Indiana, to wit: in Marion County, State of Indiana. (Here follows a metes and bounds description of the property.)

'Said Grantee, its successors and assigns, agree as a part of the above consideration to remove all buildings on said right of way and to move them to such place or places as the grantors may designate, and put the same in as good condition and repair as the same are now, and said grantee, its successors and assigns further promise and agree to plank the crossings of the highway running east and west through said land, and to maintain said crossing, and the said crossings to be maintained the entire width of the highway.

'Said Grantee, its successors and assigns, further agrees that all cars operated on said right of way by said grantee, its successors and assigns, carrying passengers, and freight or either of them shall stop at said highway crossing, to receive and discharge the same except the cars known and labelled as 'Limited.'

* * *

* * *

'Said Grantee its successors and assigns further promise and agree that it will build and maintain sufficient drains on the west side of their track on said right of way, but no holes are to be left in said right of way or dirt piled thereon.

'Said Grantee its successors and assigns further promise and agree that they will build their tracks over and upon the above described right of way, a line between the City of Noblesville and the City of Indianapolis, Indiana, and have the same in operation on or before the first day of January 1905, and if said line is not constructed or if constructed and is not operated for a period of sixty (60) days (except in case of strikes) all rights granted herein to said grantee, its successors and assigns, shall revert to the grantors, and said grantee, its successors and assigns, shall remove its tracks from said right of way.' (Our emphasis.)

Such deed was recorded on March 12, 1903.

The pivotal question presented for our determination is: Did the instrument above mentioned convey a fee to the traction company; or did it convey an easement only for railroad right of way? Appellant contends that it conveyed an easement only for railroad right of way; while appellee contends that it conveyed the fee.

The subject matter of the instrument under consideration involves the conveyance of property for railroad right of way purposes. There are numerous decisions of the courts dealing with the subject, and there are numerous annotations, some of which are referred to herein, in which the controlling principles herein mentioned are discussed and the cases reviewed. It will be possible to review only a few of these authorities in our opinion. At first glance, the cases seem to present a number of conflicting views; but many apparent conflicts are due to a difference in the facts and in the local applicable statutes.

In an exhaustive annotation on the subject reported in 132 A.L.R. at page 142 et seq., pertinent to the questions here presented, we find the following statement:

'A consideration of the cases included herein discloses that although they seem at first glance to present a number of conflicting views, they follow a broad but well-defined pattern with relatively few exceptions. The great majority of the cases are concerned with the construction of deeds containing two principal forms of granting clauses: (1) those that grant 'land' (that is, contain language which, in the last analysis and disregarding the redundancy and excess verbiage common to conveyances of real property, provides simply that the grantor grants and conveys a strip, piece, parcel, or belt of land), and (2) those that grant a 'right' (that is, contain language purporting to convey to the grantee a right of way, or other right or privilege with respect to using the property, over land owned by the grantor). There are a few cases involving deeds containing granting clauses which appear to grant both a designated strip or parcel of land and a right of way, or deeds the granting clauses of which are so obscure as to make it impossible to say that they refer to 'land' or to a 'right', but decisions of this sort are so few in number as to be relatively negligible. If a deed to a railroad company contains nothing more than a grant of land, adequately described, the cases are practically unanimous in reaching the conclusion that it conveys a fee; but if such a deed contains nothing more than the grant of a right,--usually, but not invariably, a right of way,--they are equally unanimous in reaching the conclusion that it creates a mere easement over the land in question.'

The above language is quoted with approval in Hinman v. Barnes, 1946, 146 Ohio St. 497, 66 N.E.2d 911, 915. In that case the original conveyance to a railroad company contained a provision that such right of way should be used exclusively for railroad purposes, together with the further provision that should the right of way not be used for railroad purposes for a continuous period of two years, such right of way should revert to the grantor, her heirs and assigns. In that case the right of way was abandoned for railroad purposes and had not been used for such purposes for a continuous period of more than two years.

The Supreme Court of Ohio in the case of Hinman v. Barnes, supra, after referring and quoting from annotated notes in 132 A.L.R. 143, said:

'An examination of the numerous cases cited warrants the conclusion that, nothing further appearing than that the granting clause of a particular deed refers to 'land,' a fee is thereby conveyed; and that on the other hand, where the granting clause refers only to a 'right,' such instrument conveys only an easement.'

In the instant case, the granting clause refers to a 'right'. As in the case last cited, the granting clause is not the only limiting clause in the conveyance. In the last paragraph of the instrument it is stated:

'Said grantee, its successors and assigns further promise and agree that they will build their tracks over and upon the above described right of way, a line between the City of Noblesville and the City of Indianapolis, Indiana, and have the same in operation on or before the first day of January, 1905, and if said line is not...