Okla. City v. Dobbins
| Decision Date | 24 June 1941 |
| Docket Number | Case Number: 24343 |
| Parties | OKLAHOMA CITY v. DOBBINS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. BOUNDARIES--Grantor conveying all his land abutting on railway right of way presumed to have conveyed his interest in right of way.
A grantor of land abutting on a railway right of way who owns the fee of the right of way subject to the burden thereof, and who subsequent to the conveyance of the abutting land owns no part of the land on either side of the right of way, is presumed to have conveyed his interest in the right of way, unless a contrary intention clearly appears or is expressed.
2. SAME--Warranty deed by remote grantee without exception or reservation--Last grantee held to have acquired title to land covered by right of way subject to rights of railway.
The owner of a town lot 140 feet in length conveyed "forty feet off the north end" of said lot to a railway company "as and for its right of way for the construction, operation and maintenance of its railroad," with the provision that "in case of abandonment of said premises by said second party, its successors or assigns for the purpose above mentioned the same shall revert to the grantors, their heirs or assigns," and thereafter the remote grantee of such grantor conveyed by warranty deed, without exception or reservation, "the south one hundred feet off of" said lot to another railway company. Held, the grantee in the second deed thereby acquired title to the north forty feet of said lot, subject, however, to the rights of the grantee in the first conveyance.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by C. E. Dobbins et al. against Oklahoma City. From the judgment, both sides appeal. Reversed.
A. L. Jeffrey, Municipal Counselor, Warren W. Connor, Asst. Municipal Counselor, and Jarman, Brown, Looney & Watts, all of Oklahoma City, for plaintiff in error.
Joe T. Rogers and D. W. Eaton, both of Wichita, Kan., and A. H. Dolman and Chas. H. Garnett, both of Oklahoma City, for defendants in error.
¶1 This is an action by C. E. Dobbins and others to quiet the title to, and for possession of lot 5, block 64, of the original townsite of Oklahoma City, which lot is 25 feet wide and 140 feet long. The judgment of the trial court gave plaintiffs the south 100 feet of the lot, and Oklahoma City the north 40 feet. On appeal this court, in Oklahoma City v. Dobbins, 172 Okla. 195, 44 P.2d 148, reversed the judgment insofar as it gave plaintiffs the south 100 feet of said lot, and affirmed it as to the north 40 feet thereof, thus giving the entire lot to Oklahoma City.
¶2 The questions originally argued and considered in the first opinion (172 Okla. 195) in the determination of the title to the north 40 feet were identical with those involved in Noble v. Oklahoma City, 172 Okla. 182, 44 P.2d 135, and when a writ of certiorari to the Supreme Court of the United States was granted in that case, the mandate in the instant case was stayed pending the decision of that court in the Noble Case. In the Noble Case, the United States Supreme Court reversed the judgment of this court on the questions involved, the effect of that decision being that on the contentions originally made the title of plaintiffs in the present case to the north 40 feet was superior to that of the city. The city, however, now submits further contentions to support its claim of title. Little attention was given in the first opinion to the effect which the city now contends must be given to the various conveyances involved in this action, but these conveyances are contained in the record, and therefore their legal effect will now be considered. They were set out in the former opinion of this court cited above, and we need not burden this opinion by again setting them out.
¶3 The city now contends that when plaintiff's ancestor, Almira Wilkerson, took title to the lot in controversy, subject to the rights of the Choctaw Coal & Railway Company in and to the north 40 feet thereof, and thereafter conveyed the south 100 feet to the Oklahoma City Terminal Railroad Company by a warranty deed without restrictions or reservations, a fee-simple estate in said south 100 feet vested in her grantee, and that as, by the last-mentioned conveyance, she divested herself of all property abutting upon the north 40 feet, the servient estate in the north 40 feet vested in the Oklahoma City Terminal Railroad Company, under the rule announced in Cuneo v. Champlin Refining Co., 178 Okla. 198, 62 P.2d 82, and Jennings v. Amerada Petroleum Corporation, 179...
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