Marland v. Gillespie, Case Number: 21180

• Decision Date: 13 March 1934
• Docket Number: Case Number: 21180
• Citation: 1934 OK 158,33 P.2d 207,168 Okla. 376
• Parties: MARLAND v. GILLESPIE.
• Court: Oklahoma Supreme Court

1934 OK 158

33 P.2d 207

168 Okla. 376

MARLAND v. GILLESPIE.

Case Number: 21180

Supreme Court of Oklahoma

Decided: March 13, 1934

Syllabus

¶0 1. Railroads -- Acquisition of Fee-Simple Title to Real Estate for Railroad Purposes by Deed.

Under section 9698, O. S. 1931, which provides that every estate in land conveyed shall be deemed an estate in fee simple unless limited by express words; and section 11913, O. S. 1931, which confers on railroad corporations the power to purchase title to land for right of way or other railroad purposes; and section 13713, O. S. 1931 (sec. 2, art. 22, Okla. Const.), which provides that a corporation doing business in this state shall not acquire, trade, or deal in real estate except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed, a railroad corporation has the power to acquire fee-simple title to real estate in Oklahoma for railroad purposes by voluntary conveyance.

2. Same--Deed to Land for Right of Way Held to Convey Fee-Simple Title.

A deed from a grantor to a railway company containing the sentence "The same being for a right of way for a railroad track as the survey thereof is now located and said grantee agrees to construct two grade crossings over its track for the use of grantor, and proper water ways under its track where there is heavy fills," but not otherwise limited, conveys a fee-simple title; such sentence not being a limitation upon the quality of the estate conveyed.

3. Same.

Record examined, and held, that the deed from Hans C. R. Brodboll to the Southern Kansas Railway Company, a corporation, conveyed a fee title to the said property therein described.

Application to File Second Petition for Rehearing Denied June 5, 1934.

Appeal from District Court, Kay County; Claude Dural, Judge.

Action by E. W. Marland against Minnie Gillespie. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Maris & Maris, for plaintiff in error.

John S. Burger and Irby & Carver, for defendant in error.

BAYLESS, J.

¶1 E. W. Marland, plaintiff below, appeals from a judgment of the district court of Kay county, Okla., in favor of the defendant below, Minnie Gillespie, quieting her title to certain real estate. The parties will be referred to herein as plaintiff and defendant, respectively, as they appeared in the trial court.

¶2 There is no dispute over the actual events out of which this litigation arose. The controversy revolves around a determination of the legal rights of the parties now that such events have taken place.

¶3 Hans C. R. Brodboll acquired title to the northeast quarter of section 27, T. 26 N., R. 2 E., in what is now Kay county, Okla., from the United States government by a patent dated February 18, 1898. He executed a conveyance of a strip of this land along the north side of this quarter section to the Southern Kansas Railway Company on March 24, 1898. On March 5, 1910, Brodboll and wife filed for record a plot of blocks 17, 18, 19, and 20 to Brodboll, an addition to Ponca City. The plat of this addition shows that all of the land embraced within the platted addition lies south of but adjacent to said strip of land conveyed to the railway company. Brodboll and wife deeded lot 46, block 19, of said addition to 'one Stanley in the year 1910. The title to this lot thereafter passed through various hands and finally vested in the defendant by a decree of the district court of Kay county, Okla., on February 5, 1927. This lot is contiguous to the strip of land conveyed to the railway company. The strip of land conveyed to the railway Company was used by said railway company and its corporate successor, Atchison, Topeka & Santa Fe Railway Company, for a spur track location until sometime in the year 1924, when it was completely abandoned for all railroad use. Plaintiff took a quitclaim deed from said railway company in 1925, and a quitclaim deed from the sole heir of Brodboll in 1924. He filed this suit on the 2nd day of February, 1928, claiming the title and right of possession of this property. This was disputed by the defendant, who claimed that, as abutting landowner, the portion of said land adjacent to her lot accredited to her upon abandonment by the railway company. Her claim rests upon the argument that the title conveyed by Brodboll to the railway company was less than that of a fee simple, and that, upon abandonment of the property for the use for which it was conveyed, the title reverted; and that the reversionary interest was possessed by her as the adjacent landowner.

¶4 The conveyance from Brodboll to the railway company reads:

"Warranty Deed.

"This indenture, made this 24th day of March, A. D., 1898, between Hans C. R. Brodboll, a single man, of Kay county, in the Territory of Oklahoma, party of the first part, and the Southern Kansas Railway Company, a corporation, party of the second part.

"Witnesseth: That said party of the first part in consideration of the sum of one thousand and no/100 dollars, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, its successors, heirs and assigns, all of the following real estate, situated in the county of Kay and Territory of Oklahoma, towit:

"A strip of land 50 feet in width off the north side of the northeast quarter (1/4) of section number twenty-seven (27) in township number twenty-six (26) north of range two (2) east of the Indian Meridian, and lying contiguously and south of the public highway on the north side of said quarter section. The same being for a right of way for a railroad track as the survey thereof is now located and said grantee agrees to construct two grade crossings over its track for the use of grantor, and proper water ways under its track where there is heavy fills.

"To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, forever.

"And said Hans C. R. Brodboll, for himself, his heirs, executors or administrators does hereby covenant, promise and agree to and with the said party of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple, of and in all and singular the above granted and described premises, with appurtenances; that the same are free, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever' and that he will warrant and forever defend the same unto the said party of the second part, its successors and assigns against said party of the first part, his heirs and all and every person or persons whomsoever, lawfully claiming or to claim the same."

¶5 The defendant contends, in effect, that the language of the deed is in itself a limitation upon the estate conveyed' but, if it is not, there is no statutory power for a railway company to acquire a fee-simple title to real estate in Oklahoma.

¶6 We will direct our attention to the second of these contentions first. In determining whether there is a lack of authority on the part of a railway company to acquire the fee-simple title to real estate purchased for right of way, we must examine the Constitution and statutes of this state.

¶7 Section 13713, O. S. 1931 (sec. 2, art. 22, Okla. Coast.), reads:

"* * * Nor shall any corporation doing business in this state buy, acquire, trade, or deal in real estate for any purpose except such as may be located in such towns and cities and as additions to such towns and cities, and further except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed. * * *"

¶8 This is a limitation, not upon the quality of the estate, but the quantity of land to be owned, which quantity is measured by the necessity of use considering the purposes for which the corporation is chartered. Section 13436, O. S. 1931 (sec. 24, art. 2, Okla. Coast.), reads in part:

"* * * The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. * * *"

¶9 The framers of our Constitution, while conferring the power of eminent domain upon common carriers, had in mind the inconvenience oftentimes done to a landowner by the exercise of this power to acquire rights of way over his land without his consent. It intended that common carriers exercising such power, that is, taking a right of way without the consent of the owner of the land, should only acquire the right of use thereof or an easement, so to speak, which ceased upon abandonment. By this proviso, recognition was given to the fact that inconvenience and the disturbance of the possession and use of one's land by another without his consent were elements of damage or compensation in eminent domain, which, if legal, might nevertheless be inadequately provided for. By the same token the framers of our Constitution recognized that one who voluntarily conveyed his property for such a purpose for a consideration presumably voluntarily agreed upon, must have been thought to have demanded and received compensation for the resulting inconvenience, and they did not extend this limitation to such voluntary conveyances.

¶10 Section 11913, O. S. 1931, enumerates the powers conveyed upon railway corporations, and subdivision 3 thereof reads:

"Third: To acquire under the provisions of this article, or by purchase, all such real estate and other property either within or without this state, as may be necessary for construction, maintenance, and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the objects of its incorporation; to hold and use the same, to lease or otherwise dispose

...