Nichols v. Haehn

• Decision Date: 18 June 1959
• Citation: 8 A.D.2d 405,187 N.Y.S.2d 773
• Parties: Mabel Starr NICHOLS, Eslie M. Starr Juntgen and Dorothy M. Walton, Plaintiffs-Respondents, v. William J. HAEHN, Jacob Weinstein, Henry J. Wallace and Jane B. Wallace, Defendants-Appellants, and Russell Rogerson et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 773

187 N.Y.S.2d 773

8 A.D.2d 405

Mabel Starr NICHOLS, Eslie M. Starr Juntgen and Dorothy M Walton, Plaintiffs-Respondents, v. William J. HAEHN, Jacob Weinstein, Henry J. Wallace and Jane B. Wallace, Defendants-Appellants, and Russell Rogerson et al., Defendants.

Supreme Court, Appellate Division, Fourth Department.

June 18, 1959.

Erickson & Erickson, Jamestown (Alton R. Rickson and Philip A. Erickson, Jamestown, of counsel), for plaintiffs-respondents.

Charles J. Mistretta, Jamestown (George R. Rogers, Mayville, of counsel), for defendants-appellants.

Before McCURN, P. J., and WILLIAM, BASTOW, GOLDMAN and HALPERN, JJ.

WILLIAMS, Justice.

The plaintiffs have instituted this action under Article 15 of the Real Property Law to obtain a determination that they are the owners of an unencumbered fee in certain real property. The answering defendants, Haehn, Weinstein and Wallace, dispute plaintiffs' title and they, in turn, have counterclaimed under said Article 15 and have requested that plaintiffs be barred from any claim of title and that it be determined that such answering defendants are vested with clear title in fee.

The plaintiffs moved for summary judgment and the defendants countered with a similar motion. The Trial Justice found for the plaintiffs and judgment was entered accordingly. The answering defendants have appealed.

The property in question is a strip of land 66 feet wide and approximately 1,700 feet long which extends across a tract formerly owned by Amasa Starr and Huldah E. Starr, his wife, as tenants by the entirety and located in Chautauqua County, New York. This land was used for railroad purposes until 1950 when that sue ceased.

On the 19th of January, 1897, the Starrs deeded an interest in this strip of land to the Jamestown and Lake Erie Railway Company, hereinafter called the railway. The deed contained the following provisions:

'Said second party hereby agrees to and with said first party that in case said Railway shall at any time be abandoned then the lands heretofore described shall revert to the grantors the said second party furthermore agrees to construct two road crossings with suitable approaches, and cattle guards at points to be designated by said first parties, and also to fence both sides of the right of way through the above described lands said second party also agrees to have a flag station on the lands above mentioned at or near the south line of the lands of said first parties, with a covered platform; said second party also agrees to give to said first parties life passes on said railway.'

Thereafter, and on August 25, 1897, Amasa died intestate, leaving Huldah surviving. On April 22, 1917 Huldah died intestate, leaving as her only heirs at law the plaintiffs, Mabel Starr Nichols, Eslie M. Starr Juntgen and one Oliver D. Starr, who died intestate on March 20, 1944, leaving as his only heir at law Ernest Starr, who delivered a quitclaim deed of said property to Frank Walton and Dorothy Walton, his wife, by deed dated September 2, 1955. Subsequently, Frank R. Walton died, and plaintiff Dorothy M. Walton survives him.

On the 1st day of September, 1906, Huldah Starr deeded most of the property contained in the original tract to one James Ward Packard. The description was by metes and bounds and excepted the following:

'Excepting and Reserving therefrom three (3) acres out of the south part thereof heretofore deeded by David Brownell and wife to Diantha Marsh of the said Town of Ellery.

'Also excepting and Reserving therefrom the premises conveyed by Amasa J. Starr and wife to Sumeon Brownell by deed recorded in Chautauqua County Clerk's office in Liber 192 of [8 A.D.2d 408] deeds, at page 438, containing about fifteen (15) acres of land be the same more or less.'

These exceptions were followed by this language:

'This transfer is subject also to a conveyance made by Amasa J. Starr and Huldah E., his wife, to the Jamestown and Lake Erie R. R. Co. recorded in Liber 277 of deeds at page 304.'

(The deed referred to at Liber 277 of deeds at page 304 is the 1897 deed from Amasa and Huldah Starr to the railway.) The Starr-Packard deed contained the usual recital, 'With the Appurtenances and all the Estate, Title and Interest of the said parties of the first part.' It contained a covenant of quiet possession and a warranty clause.

In 1911 one George Bullock was appointed receiver of a railroad corporation which had become the operating successor of the original railway. About that time a real property tax foreclosure action was commenced because of tax defaults covering the railroad property here involved. On February 29, 1912, the Board of Supervisors of Chautauqua County conveyed the property to said Bullock as receiver by quitclaim deed. Thereafter, the answering defendants procured their title from a successor railroad corporation and they claim that any interest the plaintiffs might have had in the possibility of reverter was extinguished by the conveyance to Bullock. Therefore, the effect of that instrument may present a serious question which we shall review hereinafter.

It appears that by two separate deeds in 1911 and 1913, respectively, Packard conveyed substantially all of the property contained in the original Starr tract to Edgar T. Welch, who in turn conveyed to various grantees. Some of the property adjoining the railroad right of way and the fee to the right of way itself may now be vested in certain defaulting defendants and also in plaintiff Walton and in defendants Wallace, through mesne conveyances, originating in Packard. The deeds from Packard to Welch leave doubt as to whether the description covers Packard's interest, if any, in the railway roadbed. They are ambiguous in this respect.

These facts give rise to several legal problems. The first of these in logical order requires a determination of the legal effect of the deed from Starrs to the railway. The plaintiffs claim that the deed conveyed a fee upon special limitation and that the grantors retained a possibility of reverter. They contend that they have succeeded to the grantors' interests in the possibility of reverter which ripened into an estate in fee simple upon the discontinuance of the use of the land for railroad purposes.

The answering defendants, on the other hand, argue that the deed created a fee on condition subsequent in the grantee, subject to a right of re-entry on the part of the grantors.

As previously noted, the deed from the Starrs to the railway transferred title in fee with the proviso that if the railway should at any time be abandoned, the land should revert to the grantors. The language must be construed to effectuate the intent of the grantor.

'No set formula is necessary for the creation of the limitation, any words expressive of the grantor's interest that the estate shall terminate on the occurrence of the event being sufficient.' 1 Tiffany, Real Property, [3d ed.] § 220, p. 385. See also Simes & Smith, Law of Fut. Int., § 286, pp. 342-343; 26 C.J.S. Deeds § 110, p. 920.

Traditionally, language such as 'until,' 'so long as,' 'during' or words of similar import created a fee upon special limitation in the grantee with a possibility of reverter in the grantor (Powell, Real Prop., V. 2, § 187; Rest. Prop., § 44, Comment 1; 1 Tiffany, Real Property, [3d ed.] § 248, p. 380; Comm. on Law of Real Property, Walsh, V. 3, pp. 52-53). The basic conceptual distinction has been between normal expiration followed by automatic reversion in the case of a fee on special limitation and the right to enforce a divestment in the case of a fee on condition subsequent (1 Tiffany, Real Property [3d ed.] § 217, pp. 380-381; 20 Chi.L.R. 215, 226).

A very sound analysis of language comparable to the present is found in Richardson v. Holman, 160 Fla. 65, 33 So.2d 641. The deed there read in part (160 Fla. at page 66, 33 So.2d at page 642):

'should the party of the second part cease to use the foregoing land for railroad purposes, then and in that event the title to said property shall revert to and vest in the said Eugene Holtsinger and his heirs and assigns.'

The Florida court concluded that the grantor intended to create a fee on special limitation, thereby reserving a possibility of reverter in the event the limit to the duration of the estate in the railway was reached.

In Thypin v. Magner, Sup., 28 N.Y.S.2d 262, 264, the court considered a limiting clause in a deed and pointed out that the deed contained 'no express provision for re-entry, nor is the word 'condition' mentioned.' The language was construed to create a fee on special limitation. The Restatement of Property, § 44, comment 1, illus. 17(I) provides the following as an illustration of an estate which terminates automatically: 'to B (a railroad corporation) to have and to hold for railroad purposes, for and during the continuance of said railroad.'

In the present case, it is clear from the language employed that in case the railway should at any time be abandoned, the title should revert automatically. Further, this case is unlike those situations in which the grantee is required to do some affirmative act in the future, e. g., to build a church within a reasonable time (Upington v. Corrigan, 151 N.Y. 143, 45 N.E. 359, 37 L.R.A. 794), or to construct a railroad within a specified time (Nicoll v. New York & Erie Ry. Co., 12 N.Y. 121). There was nothing for this railway to do except to continue to operate as a railway. In fact, the railway had been in operation on the land in question for a substantial time prior to the Starr deed. Upon its failure to continue in 1950, its estate reached its normal duration and terminated automatically.

We hold with the plaintiffs, therefore, that the estate created in the railway was a fee on special limitation, rather than a fee on condition subsequent.

We find no merit in the defendants' contention that the possibility of reverter was personal to...