Richard S. Brunt Trust v. Plantz, 3-583A132

CourtCourt of Appeals of Indiana
Citation458 N.E.2d 251
Docket NumberNo. 3-583A132,3-583A132
PartiesRICHARD S. BRUNT TRUST, Appellant (Plaintiff Below), v. Fred R. PLANTZ et al., Appellees (Defendants Below).
Decision Date27 December 1983

John D. Wagoner, Wagoner & Cochran, Marion, for appellant.

Richard A. Brown, Brown & Brown, Rochester, for appellees.

STATON, Judge.

In the late 1800's, the Terre Haute and Logansport Railroad (railroad) acquired for railroad purposes a right-of-way over five parcels of land. It maintained commercial railroading operations over this right-of-way until conveyance of the right-of-way to Penn Central Corporation (Penn Central). Shortly thereafter, Penn Central abandoned all railroading operations over the right-of-way and conveyed it to the Richard S. Brunt Trust (Brunt). To protect this acquired interest, Brunt filed a complaint for damages and to enjoin the neighboring landowners from removing trees from the right-of-way area. The landowners counterclaimed that the abandonment of railroad operations extinguished the right-of-way giving them unrestricted fee simple title in those portions of the right-of-way area which abuts their land. The trial court agreed with the landowners; it determined that the railroad's right-of-way constituted an easement which was extinguished when it was no longer used for railroad purposes.


Brunt contends that the language used to convey the right-of-way constituted a fee simple interest in the land; the phrase outlining the purpose of the conveyance constituted a covenant which was satisfied by the ninety-year duration of railroad operations. Because the parties stipulated to all of the pertinent facts, this Court need only determine what interest was conveyed by the "Releases of Right of Way" and the effect of abandonment of railroad operations. 1

The intentions of the parties govern the extent of the interest conveyed. Cleveland, Columbus, Cincinnati and Indianapolis R.W. Co. v. Coburn (1883), 91 Ind. 557, 562. The conveyance instruments and the surrounding circumstances reveal the intentions of the parties. Id. All words in the conveyance instrument will be given effect to determine whether the parties intended to convey an easement or a fee simple absolute. 2 Davenport v. Gwilliams (1892), 133 Ind. 142, 145, 31 N.E. 790, 791.

Because the railroad prepared the conveyance forms it is responsible for the printed words. Brookbank v. Benedum-Trees Oil Co. (1957), 389 Pa. 151, 158, 131 A.2d 103, 108. Therefore, we will construe the forms in the light most favorable to the grantors. All but one conveyance appeared on the following preprinted form:

"Release of Right of Way

"I, ________ of the County of ________ in the State of Indiana, in consideration of the advantages which will accrue to me in particular and the public generally by the construction of a railroad between Logansport, Cass County, Indiana, and South Bend, St. Joseph County, Indiana, and for the purpose of inducing the construction of such a railroad and avoiding condemnation proceedings, do hereby release and quitclaim to ________ of Kewanna, Indiana, in trust for such railroad company or companies as may cause such railroad to be constructed, the right of way, for railroad purposes only, for such railroad described as follows, to-wit: A strip of ground ninety-nine feet wide, being forty-nine and one-half feet from the center on each side of the main track of said railroad may be finally located and constructed, through the following real estate in ________ County, State of Indiana, to-wit:





and I do hereby empower and direct the said ______ to convey by good and sufficient deed the said right of way to the company or companies constructing said railroad and do release and relinquish all claims for damages by reason of the location and construction of said railroad through or upon the above described real estate.

Witness my hand and seal this ____ day of ______ A.D. 1881.

Executed in

presence of"

It is significant that this form conveys to the railroad for nominal consideration the right to use a strip of the grantor's land "for railroad purposes ". (Emphasis added).

Conveyance of a right generally conveys an easement. Smith v. Holloway (1890), 124 Ind. 329, 330, 24 N.E. 886; The Cincinnati, Indianapolis, St. Louis and Chicago Ry. Co. v. Geisel (1888), 119 Ind. 77, 78-79, 21 N.E. 470; Quick, Administrator v. Taylor (1887), 113 Ind. 540, 542, 16 N.E. 588, 589-90; Douglass v. Thomas (1885), 103 Ind. 187, 190, 2 N.E. 562, 564; Ingalls v. Byers, Administrator (1883), 94 Ind. 134, 136; L. & G. Realty & Construction Co. v. Indianapolis (1957), 127 Ind.App. 315, 322, 139 N.E.2d 580, 585; Muncie Electric Light Co. v. Joliff (1915), 59 Ind.App. 349, 355, 109 N.E. 433, 435; Lake Erie & Western Railroad Company v. Ziebarth (1892), 6 Ind.App. 228, 234, 33 N.E. 256, 258. The general rule for determining whether a fee or an easement was conveyed was set forth as follows:

" 'The general rule is that a conveyance to a railroad of a strip, piece, or parcel of land, without additional language as to the use or purpose to which the land is to be put in other ways limiting the estate conveyed, is to be construed as passing an estate in fee, but reference to right of way in such a conveyance generally leads to its construction as conveying only an easement.' "

L. & G. Realty, supra 127 Ind.App. at 322, 139 N.E.2d at 585. As applied to the forms used to convey the railroad's right-of-way, this rule defines the interest granted as an easement.

To supplement this conclusion, the Court in L. & G. Realty, supra stated that although "[the habendum and subsequent covenants may modify, limit and explain the grant, [but] they cannot defeat it when it is expressed in clear and unambiguous language." Id. at 322, 139 N.E.2d 585. Here, the granting clause clearly and unambiguously conveyed a right of way which Indiana courts have construed to be an easement. This construction of these conveyance forms is consistent with the railroad's statutory authority to acquire land.

In 1881, the railroad had the statutory authority to acquire land by private conveyance or by condemnation.

"3903. General powers. 13. Every such corporation shall possess the general powers, and be subject to the liabilities and restrictions expressed in the special powers following:

* * *

* * *

"Second. To receive, hold, and take such voluntary grants and donations of real estate and other personal property as shall be made to it to aid in the construction, maintenance, and accommodation of such railroad; but the real estate thus received by voluntary grants shall be held and used for the purposes of such grants only.

"Third. To purchase, and, by voluntary grants and donations, receive and take, and, by its officers, engineers, surveyors, and agents, enter upon, take possession of, hold, and use all such lands and real estate and other property as may be necessary for the construction and maintenance of its railroad stations, depots, and other accommodations necessary to accomplish the objects for which the corporation is created; but not until the compensation to be made therefor, as agreed upon by the parties or ascertained as hereinafter prescribed, shall have been paid to the owner or owners thereof, or deposited as hereinafter directed, unless the consent of such owner be given to enter into possession."

(Emphasis added).

IRS 1881, Sec. 3903, p. 820.

"3907. Proceedings to appropriate. 15. Such company is hereby authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad, including necessary side-tracks and water-stations, materials for constructing (except timber) a right-of-way over adjacent lands sufficient to enable such company to construct and repair its road, and a right to conduct water by aqueducts, and the right of making proper drains.

* * *

* * *

The corporation may, by its directors, purchase any such lands, materials, right-of-way, or interest of the owner of such land ... in fee-simple or otherwise, as the parties may agree, ... and the deed, when made, shall be deemed valid in law. If the corporation shall not agree with the owner of the land, or with his guardian, if the owner be incapable of contracting, touching the damages sustained by such appropriation, such corporation shall deliver to such owner or guardian, if within the county a copy of such instrument of appropriation." (Emphasis added).

IRS 1881, Sec. 3907, p. 822-23.

The statutory provisions allowed the railroad to condemn the land desired or to contract for it in "fee-simple or otherwise, ..." This Court addressed this option as follows:

" 'It does not follow that because a railroad company may take an estate in fee, or a right of way of a defined width, it does take such an estate, or such a right of way, for parties may by their contract create a less estate than a fee, or a right less in extent than that which the law authorizes the grantee to acquire.' "

Vandalia R. Co. v. Topping (1916), 62 Ind.App. 657, 665, 113 N.E. 421, 425 citing Cincinnati v. Geisel, supra 119 Ind. at 79, 21 N.E. at 470; Chicago and West Michigan Railway Co. v. Huncheon (1892), 130 Ind. 529, 532, 30 N.E. 636, 637; Abercrombie v. Simmons (1905), 71 Kan. 538, 541-43, 81 P. 208, 210. Therefore, in conveying to the railroad a right-of-way, the grantors retained fee ownership of the underlying land. Id.; Muncie Electric Co., supra 59 Ind.App. at 355, 109 N.E. 435-36; Smith, supra 124 Ind. at 330, 24 N.E. at 886.

Other language in the railroad's forms indicate that the parties intended to convey an easement. Reference to the purpose of the conveyance in the granting clause further supports our determination that the parties intended to convey an easement. 6 A.L.R.3d at 997; Ingalls, supra 94 Ind. at 136. Brunt contends that this language reflects...

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    ...thereby eliminating any ambiguity between the use of the words "easement" and "right of way." See Richard S. Brunt Tr. v. Plantz , 458 N.E.2d 251, 252 (Ind. Ct. App. 1983) ("Here, the granting clause clearly and unambiguously conveyed a right of way which Indiana courts have construed to be......
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    ...the printed words and so we construe the form in the light most favorable to the grantors. Id. (citing Richard S. Brunt Trust v. Plantz, 458 N.E.2d 251, 252 We then set forth the settled law of Indiana on conveyances to railroads of strips, pieces, or parcels of land: A deed that conveys a ......
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