Lillich v. Lowery

• Decision Date: 04 June 1982
• Docket Number: No. 44193,44193
• Citation: 320 N.W.2d 463,211 Neb. 757
• Parties: Everett A. LILLICH, Appellant, v. Alvin LOWERY et al., Appellees.
• Court: Nebraska Supreme Court

Page 463

320 N.W.2d 463

211 Neb. 757

Everett A. LILLICH, Appellant, v. Alvin LOWERY et al., Appellees.

No. 44193.

Supreme Court of Nebraska.

June 4, 1982.

Syllabus by the Court

1. Eminent Domain: Railroads: Easements: Right-of-Way. A railroad company which acquires its right-of-way by condemnation proceedings secures merely an easement in the right-of-way which authorizes it to build and operate its railroad as a public highway. The fee title and servient estate remain in the original owner and may be sold and conveyed by such owner to another. Whenever the right-of-way is abandoned for that purpose, it reverts at once to the owner of the servient estate.

2. Conveyances: Railroads: Right-of-Way: Easements: Case Overruled. An instrument of conveyance which conveys the land definitely described in such instrument, and then excepts from such conveyance a railroad right-of-way, as such, occupying a mere easement on, over, or across the land conveyed, conveys the fee to the entire tract, and the exception only operates to render the conveyance or grant subject to the easement. To the extent that Bode v. Flobert Industries, Inc., 197 Neb. 488, 249 N.W.2d 750 (1977), and Kozak v. State, 189 Neb. 525, 203 N.W.2d 516 (1973), are in conflict with this holding, they are overruled.

Edward F. Carter, Jr., and Barney, Carter & Johnson, P. C., Lincoln, for appellant.

W. E. Garrison and Garrison & Garrison, Nelson, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

Plaintiff commenced this action in the District Court to quiet title against the defendants as to a strip of land 100 feet in width, extending across a portion of the north half of the northwest quarter of Section 4, Township 3 North, Range 5 West of the 6th P.M., Nuckolls County, Nebraska. Defendants filed an answer and cross-petition, requesting that title be quieted in them as to the same property. The trial court found in favor of the defendants, dismissed the plaintiff's petition, and ordered title quieted in the defendants. The plaintiff has appealed, assigning as error that the judgment was not sustained by the evidence and was contrary to law. We affirm.

The bill of exceptions consists solely of copies of deeds and various court proceedings in both the county court and the District Court. However, the facts do not seem to be in dispute. Because we determine that the defendants possess a valid fee title to the disputed strip, it is not necessary for us to discuss the obvious weakness of the plaintiff's claim to title.

In 1887 Larkin J. Fletcher acquired title by patent to the 80-acre tract described as the north half of the northwest quarter of Section 4, Township 3 North, Range 5 West. The following year, the Fremont, Elkhorn and Missouri Valley Railroad Company, apparently the predecessor of the Chicago & Northwestern Railroad Company, acquired by appropriation for right-of-way purposes a strip of land 100 feet wide across the 80-acre tract according to the "plat and profile of said road," consisting of 1.45 acres. The defendants allege in their cross-petition, which is admitted by the plaintiff's reply, that the 100-foot-wide strip of land previously described "constituted an easement for a railroad right-of-way which easement terminated upon abandonment of the railroad in 1976."

Larkin J. Fletcher died in 1940 seized of this 80-acre tract, leaving his widow, several children, and a grandchild surviving him as heirs and devisees. During the course of the administration of this estate, it became necessary to sell the 80-acre tract to pay the debts of the estate. A license to sell was obtained in the District Court, describing the property ordered sold as: "The N 1/2 NW 1/4 of Section 4 ... all in Township 3, North Range 5, in Nuckolls County, Nebraska ...." Pursuant to notice, a public sale was held, at which Ray L. Lowery was the successful bidder. This sale was confirmed, and the administrator was directed to execute a proper deed of conveyance to the purchaser. However, the deed executed by the administrator described the property as: "The North Half of the Northwest Quarter ... excepting the present right-of-way of the C&NW Railroad Company across said lands, but otherwise free and clear of all liens and incumbrances ...." (Emphasis supplied.) The defendants are the heirs of Ray J. Lowery and the successors to his right, title, and interest in the property which he purchased at that judicial sale.

In order to define the scope of the estate granted by the administrator's deed, it is necessary to determine the nature of the interest excepted from the calls in that instrument. Excepted was the "present right-of-way" of the railroad company. This right-of-way had been acquired by appropriation. Since as early as Roberts v. Sioux City & P. R. Co., 73 Neb. 8, 102 N.W. 60 (1905), we have held that a railroad company which acquires its right-of-way by condemnation proceedings secures merely an easement in the right-of-way which authorizes it to build and operate its railroad as a public highway. "The fee title and servient estate remains in the original owner, and may be sold and conveyed by him to another.... [A]nd whenever the right of way is abandoned for that purpose, it reverts at once to the owner of the servient estate." (Emphasis supplied.) Id. at 22, 102 N.W. at 65. We believe it is abundantly clear in this case that the only thing excepted in the administrator's deed was the easement. The rest of the estate, including the fee title to the right-of-way, passed to the defendants' predecessor in title. Therefore, the defendants held title to the servient estate in 1976 when the railroad abandoned the right-of-way.

However, the plaintiff relies upon Bode v. Flobert Industries, Inc., 197 Neb. 488, 249 N.W.2d 750 (1977), to support his proposition that a deed conveying a tract of land, except for an easement over a portion of that ground, retains in the grantor the fee title to the property underlying the easement. It is not entirely clear from a reading of that opinion, but it seems that the court was impressed by the fact that, although the patent and original conveyance of the particular tract of land covered 160 acres, the following conveyances "were for only 154 acres and presumably did not cover the railroad right-of-way." Id. at 492, 249 N.W.2d at 753. Additionally, the opinion takes pains to point out that the right-of-way was acquired by deed, and it...