Marthens v. B & O R. Co.

• Decision Date: 26 March 1982
• Docket Number: No. 15122,15122
• Citation: 170 W.Va. 33,289 S.E.2d 706
• Court: West Virginia Supreme Court
• Parties: Louise Reese MARTHENS, et al. v. The B & O RAILROAD CO., etc.

Page 706

289 S.E.2d 706

170 W.Va. 33

Louise Reese MARTHENS, et al. v. The B & O RAILROAD CO., etc.

No. 15122.

Supreme Court of Appeals of West Virginia.

March 26, 1982.

Rehearing Denied May 27,1982.

Syllabus by the Court

1. In order to determine whether property reverts to a grantor under a deed where a right-of-way has been granted to a railroad with a reversionary clause providing revertor when the property ceases to be used for railroad purposes, the trial court must make the following determinations: (1) has the property been alienated by sale or long-term lease, or effectively abandoned by long nonuser (2) if the property is leased or unused, would a reasonable person conclude there is a substantial likelihood that the property will be used again for railroad purposes; and (3) if part of the property is no longer used for railroad purposes and has been abandoned under the two criteria above, and part is still used for railroad purposes, is the unused property sufficiently distinct and identifiable that it can be separated in some reasonable way from property that is still being used for railroad purposes.

2. Since a railroad is a common carrier charged with public responsibilities and is regulated in the public interest, all contracts entered into between a railroad and others must be interpreted in light of a railroad's public responsibilities, since those responsibilities must have instructed the understanding of the parties when they entered into the contract. Consequently, where a deed grants land to a railroad for so long as the land is used for railroad purposes and an action is brought to quiet title to the land and return possession to the original grantor or his successors because the land is no longer being used for railroad purposes, any doubt concerning whether the land in question is permanently abandoned or has any reasonable likelihood of being used again for railroad purposes should be resolved in favor of the railroad.

3. Where a deed grants land to a railroad for so long as the land is used for railroad purposes, it is not necessary for the grantor or his successors to prove that the entire property conveyed in the grant has been abandoned in order to cause a part of the property no longer used for railroad purposes to revert if it can be demonstrated that there is a separate, identifiable, tract of land that has been abandoned and has no reasonable likelihood of again being used for railroad purposes.

4. Where property is being used both for a railroad purpose and a non-railroad purpose, the use of the property for an ancillary non-railroad purpose in addition to a railroad purpose does not terminate the railroad's estate where the property has been conveyed by a deed granting the property to a railroad for so long as it is used for railroad purposes.

John S. Sibray Charleston, Charles A. Sinsel, Clarksburg, for appellants.

Davis, Davis, Hall & Clovis, William Crichton, V, and Fred L. Davis, Jr., Parkersburg, for appellee.

NEELY, Justice:

This appeal from a final order of the Circuit Court of Harrison County raises several questions concerning the interpretation of a reversionary clause contained in a deed conveying land to the appellee, Baltimore & Ohio Railroad Company. The deed in question conveyed land to the Railroad to be used solely and strictly for railroad purposes. The appellants sought to reenter the land in question on the grounds that leases executed by the Railroad with local businesses allowing them to store scrap and conduct a retail building supply business on the property caused the land to be used other than for "railroad purposes," triggering a reversion. The circuit court held that the land was still being used for railroad purposes within the contemplation of the deed.

In 1892, the appellants' predecessors in title, Nathan and Laura Goff, executed a deed conveying 19.08 acres of land bordering the Clarksburg city limits to the B & O Railroad Company for consideration of $5 and the construction and maintenance of a bridge across its railroad tracks. This deed contained a reversionary clause in the following language: "(i)t is fully understood that said land is to revert to said Goff, at any time when said railroad company shall cease to use it solely and strictly for railroad purposes."

By deed dated 31 May 1906, Nathan and Laura Goff conveyed an additional acre of land to the Railroad and the Railroad conveyed approximately five acres of unneeded land from the earlier grant back to the Goffs. The Land transferred by the 1906 deed was conveyed "subject to the terms, conditions and restrictions contained in said deed," and this language referred to the 1892 deed.

During succeeding decades the Railroad used the land conveyed by the Goffs to construct a passenger station, freight depot and switching yard. Beginning in 1930 the Railroad gave various licenses to utility companies and rights-of-way to individuals across this property. The appellants do not complain of these grants.

In 1968, the Railroad leased 15,100 square feet of the land conveyed to it by the Goffs to Clarksburg Iron & Steel, Inc., for the purpose of storing scrap. Another 30,100 square feet of this land was subsequently added to this lease in 1977. In 1970, the Railroad leased 38,829 additional square feet of this property and the Railroad's freight house and adjoining platforms to Bauer Lumber and Home Center. Additional land was leased to the successors of Bauer Lumber and Home Center in 1975. All of the above leases, including those executed with the utility companies, contain provisions allowing the Railroad to terminate them upon 30 days notice.

On 1 June 1978 the appellants filed a suit to quiet title in Harrison County Circuit Court, alleging that the Railroad, by entering into the leases, had breached the conditions of the original grants and had used the property in a manner inconsistent with the grants. Appellants claimed that because of the Railroad's action in leasing the land to others for non-railroad purposes the land reverted to them. They prayed that the court hold that they held the land clear of the appellee's former interest.

In its answer the Railroad asserted that railroad purposes include any use that directly or indirectly contributes to the safe, economical and efficient use of the railroad and that their leases did not violate the terms of the original grants. Both parties filed motions for summary judgment. The circuit court accepted the Railroad's position and granted it summary judgment. The Court noted:

[there] is no question that the defendant acquired a fee simple title to this real estate. The proviso in the deed contained a condition subsequent. The court feels that these parties were dealing with the entire tract conveyed and not with any small part. In the court's opinion, the condition in this estate does not destroy the defendant's estate so long as the defendant uses a greater portion of the land basically for railroad purposes.

In the case at hand, the Railroad was granted a conditional fee, vesting in it the right to possession and use of the right-of-way contingent upon the use of the property for railroad purposes. The question before us now is whether this property is being used for railroad purposes when portions of the grant have been leased to third parties for non-railroad purposes.

The specific factual situation presented by this case is one of first impression in this jurisdiction. However, a reading of cases from other jurisdictions leads to the conclusion that there are three broad criteria to which a court must look to determine whether land is no longer being used for railroad purposes: (1) has the property actually been alienated by sale or lease or effectively abandoned by long nonuser; (2) if the property is leased or unused, would a reasonable person conclude that there is a substantial likelihood that the property will be used again for railroad purposes; and (3) if part of the property is no longer used for railroad purposes and has been abandoned under the two criteria above, and part is still used for railroad purposes, is the unused property sufficiently distinct and identifiable that it can be separated in some reasonable way from property that is still being used for railroad purposes. We shall discuss each of these criteria in sequence.

I.

A

It is self-evident, with respect to the first guideline, that if land is conveyed away it can no longer be used for railroad purposes and a majority of jurisdictions have so held. See, generally, Annot., 95 A.L.R.2d 468, 498 (1964). An exception to this rule, however, is that if the railroad conveys the land to another who uses it for railroad purposes or any other original purpose, the reversionary clause does not become operative. Garlick v. Pittsburgh & W. R. Co., 67 Ohio St. 223, 65 N.E. 896 (1902). On the other hand, the mere attempt to convey away land for a use other than that for which it was granted is conclusive evidence of intent to abandon it for railroad purposes. Seventy-Ninth Street Improvement Corp. v. Ashley, Mo., 509 S.W.2d 121 (1974); Barton v. Jarvis, 218 Ky. 239, 291 S.W. 38 (1927).

B

The fact of nonuser, that is, failure of the grantee to use the land over a long period of time, may also indicate intent to abandon use of the right-of-way for railroad purposes. It is commonly held that nonuser alone, without further inquiry, is not dispositive of the abandonment issue. Hennick v. Kansas City Southern Ry. Co., 364 Mo. 883, 269 S.W.2d 646 (1954); O'Brien v. Best, 68 Idaho 348, 194 P.2d 608 (1948). As a general rule, nonuser is but one factor tending to prove abandonment. However, additional circumstances, such as the removal of tracks and other structures, U. S. v. 1.44 Acres of Land, (D.C.Md.1969) 304 F.Supp. 1063; Pratt v. Griese, 196 Kan. 182, 409 P.2d 777 (1966); Maryland & P. R. Co v. Mercantile-Safe and T. Co., 224 Md. 34, 166 A.2d 247 (1960)...