Reichard v. Chicago, B. & Q.R. Co.

• Citation: 1 N.W.2d 721,231 Iowa 563
• Decision Date: 13 January 1942
• Docket Number: 45648.
• Parties: REICHARD et al. v. CHICAGO, B. & Q. R. CO. et al.
• Court: United States State Supreme Court of Iowa

1 N.W.2d 721

231 Iowa 563

REICHARD et al. v. CHICAGO, B. & Q. R. CO. et al.

No. 45648.

Supreme Court of Iowa

January 13, 1942

Appeal from District Court, Marion County; E. W. Dingwell Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

N. D. Shinn and H. E. de Reus, both of Knoxville, for appellants.

Johnson & Johnson, of Knoxville, and Clark, Pryor, Hale & Plock, of Burlington, for appellees C., B. & O. R. Co., C., R. I. & P. Ry. Co., and Pure Oil Co.

Carl Hendrickson, of Cedar Rapids, for appellee Cities Service Oil Co.

Leon N. Miller, of Knoxville, for appellees Walter Clark and Glenn Beebout.

Paul J. Parker, of Des Moines, for appellee Phillips Petroleum Co.

Pike, Sias & Butler, of Waterloo, for appellee Mid Continent Petroleum Co.

Carr, Cox, Evans & Riley, of Des Moines, for appellee Sinclair Refining Co.

BLISS, Chief Justice.

Since this matter came before the lower court upon a motion of defendants to dismiss the petition, which motion was sustained and judgment for costs was entered against the plaintiffs, for the purpose of this appeal all well-pleaded material allegations of fact are to be taken as true. Any argument on propositions based on factual matters not alleged has not been considered.

The rights of all parties are founded upon a warranty deed duly executed on May 10, 1876, by E. Baker and wife, S. R. Baker, for a recited consideration of $1, delivered to the grantee therein, the Chicago, Rock Island & Pacific Railroad Company and conveying to the latter, land in Marion County, Iowa, described as follows:

"A strip of land two hundred feet wide off of the South side of the Northeast Quarter of the South East Quarter of Section one in Township Seventy five North of Range Twenty West of the 5th P. M. for Depot Grounds.

"Provided that in case the said Railroad Company do not construct their Road through said tract or shall, after construction, permanently abandon the Route through said tract of land, the same shall revert to and become the property of the grantors their heirs or assigns."

After receiving the deed, the grantee constructed and operated a depot and a railroad on the ground conveyed, with the western terminus of said railroad route on about the west line of the Northwest Quarter of the Southeast Quarter of said Section One, in Knoxville, Iowa, and the route extending easterly through the land conveyed and on to Evans, Iowa, a town in Mahaska County, about 20.4 miles distant. The grantee continued to operate a railroad on said route, and about June 2, 1880 it was consolidated with and into and became a part of the Chicago, Rock Island & Pacific Railway Company, a defendant herein, which company continued to operate said railroad route until about April 6, 1938. It will be noted, that the grantee was named "Railroad Company" while the company into which it was merged is named "Railway Company."

E. Baker, the grantor in the deed, prior to 1896, died intestate in Marion County, Iowa, survived by his widow, S. R. Baker, and his only child, Frank D. Baker. The widow, S. R. Baker, died in 1896, intestate and unmarried, leaving her son, Frank D. Baker, as her only heir. The latter died intestate in Polk County, Iowa in 1929, childless, but survived by his widow, Millie Baker. No administration was had upon his estate, but its value was much less than $7,500. All the matters of lineage and descent noted above were set out in an affidavit, describing the land in controversy, filed and recorded by one of the appellants in the recorder's office in Marion County, Iowa.

On October 13, 1938, Millie Baker, unmarried, conveyed the said strip of land by quitclaim deed to Marlene Butcher, who, with her husband, on October 17th following, conveyed the land by quitclaim deed to the appellants. Both deeds were recorded. The petition also alleges: "That on or about the 6th day of April, 1938, the defendant, Chicago, Rock Island & Pacific Railway Company, then in possession of said tract of land, did permanently abandon said route through said tract of land, and the depot constructed thereon." It further alleged that after April 6, 1938 said Railway Company ceased to have any right, title or interest in and to said land, and that whatever rights, titles or interests the other defendants claim, they have been derived solely through said Railway Company, and because thereof they have no right, title or interest and are wrongfully in possession of said land. Plaintiffs pray for general relief and that they be decreed owners in fee simple of said land, and entitled to complete and immediate possession, and that defendants be decreed without right therein.

The motion to dismiss filed by the C., B. & Q. Railroad Company, and joined in by the other defendants, contains the following grounds: (1) the petition shows that the C., R. I. & P. Railroad Co. has not operated a railroad over the railroad line since June 2, 1880, and, therefore, any claim of the plaintiffs is barred by the statute of limitations; (2) the petition shows that plaintiffs are grantees of Millie Baker, who is neither an heir, nor an assignee of the grantors in the deed; (3) the petition shows on its face that the reservation in the deed creates a future estate which is not alienable and which is cut off forever by any attempt to alienate the same, and that, therefore, all interest of Millie Baker and her grantees, the plaintiffs, in said real estate was forever cut off by the attempt of Millie Baker to alienate it; (4) the petition shows that the defendants are all assignees of the C., R. I. & P. Railway Company, and that, therefore, if the reserved right in the deed be construed as including assignees of the grantee, then there has been no abandonment, but if assignees are not included, then any claim of plaintiffs has been barred by adverse possession and the statute of limitations.

In sustaining the motion, the trial court apparently based its holding upon grounds (2) and (3) thereof, in that it held that there had been no compliance with Code sections 12018 to 12023, inclusive, with respect to the estate of Frank D. Baker, and, for that reason, though he died without issue, leaving a widow and an estate of less than $7,500, his widow did not receive by descent the property which she was entitled to receive under Code section 12017, and that while she could have saved her rights and property, under section 12017, by a suit in equity after the five years for administration had passed, she could not accomplish this by the recording of an affidavit setting out the facts entitling her to the estate under section 12017. The trial court also concluded that the proviso in the deed was a "condition subsequent," which according to the trial court "amounts to finding that, under the petition, a breach of such condition has and did occur; that no forfeiture of the rights of the grantees in said deed was attempted or made; that, as the court understands the law, the right of forfeiture cannot be transferred, which was done in this case under the petition, if any such right of forfeiture existed at any time in Millie Baker." I. It is our assumption that since the court in its ruling made no mention of ground (1) of the motion and the latter part of ground (4), alleging the defenses of adverse possession and the statute of limitation, that he found no merit in them. We think these grounds are not good, and that there was no breach of the condition in the deed by a mere change in the name of the operating company, or in any merger or consolidation of the grantee with another company. The fact remains that the depot and railroad were constructed and maintained by a company in which the grantee became a part, until both the route and the depot were permanently abandoned on April 6, 1938. It was the continued existence of both of these matters which the grantors contracted for and which were the real consideration for the conveyance. The condition was not broken until both were permanently abandoned on April 6, 1938.

II. The questions for determination are all questions of law. One of these questions upon which the court and counsel say they spent many weeks of investigation, and which, as one of them states, would require an extensive treatise to properly present, is the kind and character of both the estate, which the grantors conveyed to the railroad company, and the estate or interest which they retained. Both sides concede that the estate conveyed was a fee-simple, subject to defeasance. They differ as to the particular kind of a defeasible fee-simple estate that it was. The appellants contend that the estate conveyed was a "determinable fee," otherwise called a "base," "qualified," or "limited" fee, while the appellees claim that it was a fee-simple on a "condition subsequent." The various qualifying terms designating the first-mentioned fee have been used promiscuously as descriptive of an estate in fee with a qualification or limitation annexed to it providing that it must determine whenever that qualification is at an end. This is the definition upon which all authorities, both ancient and modern, are in accord. Littleton, Sec. 254; Coke, Litt. 27a 220; 2 Blackstone, Comm., 109; Cruise, Dig. Title 1, Sec. 82; 1 Bouvier, Law Dict. p. 472; Lyford v. Laconia, 75 N.H. 220, 72 A. 1085, 22 L.R.A., N.S., 1062, 139 Am.St.Rep. 680; United States Pipe Line Co. v. Delaware, etc., R. Co., 62 N.J.L. 254, 41 A. 759, 42 L.R.A. 572; 1 Washburn, Real Property, 6th Ed., pp. 79, 80. The author in 26 C.J.S., Deeds, § 110, p. 400, thus defines it: "A base fee, a fee simple determinable, or a fee simple subject to a conditional limitation, a fee with a limitation annexed that upon the happening of some future event or contingency, the...