Ritter v. Thompson

• Citation: 144 S.W. 910,102 Ark. 442
• Parties: RITTER v. THOMPSON
• Decision Date: 26 February 1912
• Court: Arkansas Supreme Court

144 S.W. 910

102 Ark. 442

RITTER v. THOMPSON

Supreme Court of Arkansas

February 26, 1912

Appeal from Poinsett Chancery Court; Edward D. Robertson Chancellor; affirmed.

STATEMENT BY THE COURT.

Appellant instituted this suit in the Poinsett Chancery Court, and alleged, in substance, that on the 22d day of July, 1898, he was the owner of, and by deed of that date conveyed to the Kansas City, Fort Scott & Memphis Railway Company, a strip of land situated in Marked Tree, Poinsett County, Arkansas which he described in his complaint. He alleged that the grantee in the deed subsequently conveyed its interest to the St. Louis & San Francisco Railway Company, one of the appellees; that the deed was without consideration, and was made for the exclusive use by said railway company for railroad purposes; that the appellee Thompson had known at all times the conditions of the deed limiting the grant for railroad purposes only; that, notwithstanding such knowledge he had secured from his codefendant, the railway company numerous grants and conveyances under which he claimed to be authorized to construct and occupy upon the railroad right-of-way embraced in the deed certain buildings, a map and plat of which he attached to his complaint. He alleged that Thompson was threatening to erect and occupy other and additional buildings on the right-of-way. He averred that at the time he conveyed the land to appellee railway company he owned and occupied, by tenants, a number of buildings upon the land adjacent to the right-of-way, and that the buildings erected by Thompson and the ones which he was threatening to erect would endanger appellant's buildings and subject them to additional loss and damage by fire. He prayed for a temporary restraining order, and that same, upon final hearing, be made perpetual; that the lease covenants between the appellees be cancelled, and that the appellee railway company be perpetually enjoined from issuing other leases of a similar character.

The appellees answered separately, denying the allegations of the complaint, admitting the execution of the right-of-way deed, but denying the alleged legal effect of the limitation contained therein; admitting the execution of the various licenses by appellee railway company to appellee Thompson and others, but alleging that same were with appellant's approval and consent.

The answers set up estoppel, laches and waiver in that for many years the appellee railway company had granted licenses to many persons, including appellant; that many buildings of great value had been erected under said license, and with the knowledge and encouragement of appellant.

On the 10th of December, 1888, C. W. Frazier and wife by deed of that date, conveyed to the Kansas City, Fort Scott & Memphis Railway Company the land in controversy, and after the conclusion of the description of the land in the deed is the following: "For the use of said company as railroad line purely, excluding all other uses and purposes of said land, and not to conflict with any sale heretofore made of land included in said limits."

Appellant claims title to the land in controversy from the same source of title, and also from an alleged tax title. After acquiring his deeds he conveyed to the Kansas City, Fort Scott & Memphis Railway Company the land in question, on July 22, 1898. The deed recites that, for and in consideration of the sum of one dollar paid by the railway company, "they (he and his wife) do hereby grant, sell and quitclaim unto said railway company, and unto its successors and assigns forever, the lands (describing them) for railroad purposes only.

Appellee railway company succeeded to whatever rights the Kansas City, Fort Scott & Memphis Railway Company had in the land in controversy, and the appellant succeeded to whatever rights the original grantor, Frazier, had.

Decree affirmed.

Going & Brickerhoff, for appellant.

1. The deeds conveyed an easement only. 10 A. 522; 5 N.W. 484; 53 Id. 807; 64 Id. 572; 61 Id. 342; 14 S.W. 538; 24 Id. 234; 1 N.E. 420; 46 N.W. 240; 35 N.W. 862; 74 N.E. 812; 53 So. 22; 111 P. 578.

2. The right of re-entry was assignable. Wash. on Easements (4 ed.) 292. It is not limited to the grantor's heirs but extends to his assignees. 38 P. 1126. Any interest in real estate may be conveyed. 14 Ark. 489; 3 Metc. 163; 44 Ark. 153; 91 Id. 407.

3. Appellant is not estopped; the essentials of an estopped are wanting. Bigelow on Estoppel, 484. A party must be actually deceived or misled to his injury by the conduct of another, and the latter must intend that his conduct should be acted upon. 56 Ark. 217; 54 Id. 465; 58 Id. 20; 53 Id. 545; 51 Id. 52; 109 Mass. 53. Something more than mere silence or inactivity is needed. 39 Ark. 131. The mere failure to institute proceedings is not sufficient. 63 Ark. 300.

4. Appellant has not waived his rights. See authorities on estoppel. The case of 77 Ark. 168 is not in point. The facts are too dissimilar.

Lamb & Caraway, for appellees.

1. The words "for railroad purposes" in a fee simple deed do not arise to the dignity of a condition subsequent, entitling appellant to re-enter for condition broken; they mean nothing more than for the use and benefit of the railway company. 46 N.J.L. 536; 17 P. 580; 13 Id. 890; 7 Allen (Mass.) 125; 20 Ind. 398; 12 N.E. 607; 98 N.Y. 665; 37 N.E. 650; 23 P. 98; 46 N.J.L. 536; 40 N.E. 587; 68 Ky. 330; 28 N.E. 442; 39 Conn. 54; 27 N.E. 162; 34 Mich. 163, 169-70; 77 Ark. 168; 38 Ga. 202; 223 P. 98-100; 43 N.E. 1076.

2. Conditions which operate as a forfeiture are not favored in law. The language is most strongly construed against the grantor. 50 Ark. 141; 38 Wis. 165; 23 P. 93; 27 N.E. 162; 40 Id. 587; 77 Ark. 168.

3. Appellant is barred. 59 Ark. 405; 77 Id. 168; 51 Id. 491; 135 S.W. 905; 73 N.E. 74; 106 N.W. 456; 114 Id. 151; 43 N.E. 1076; 96 P. 284; 55 Mo. 392; 99 C. C. A. 286.

WOOD, J. Mr. Justice HART, concurs.

OPINION

WOOD, J., (after stating the facts).

1. The appellant contends that the language used in the deed to appellee railway company, "for railroad purposes only," had the effect of limiting the use of all the lands mentioned in the deed to the purposes of an easement only; that the deeds conveyed an easement in the land, and that when the railway company ceased to use the entire tract conveyed or any part thereof for the purposes of its easement the appellant, being the owner of the land in fee, had the right to re-enter and take possession of the part that was not used as an easement.

In our construction of the deed it becomes unnecessary to determine whether or not its effect was to convey the fee-simple title to the railway company. The deed, in our opinion, conveyed to the railway company the entire strip of land mentioned therein; and, so long as any part of the same was being used for railroad purposes, appellant could not enter and take possession of any part that might not be used for the easement or right-of-way. See Morrill v. Wabash, St. Louis & Pacific Ry. Co., 96 Mo. 174, 9 S.W. 657. The deed was entire; and, so long as the railway company was using any portion of the strip of land conveyed for its right-of-way or easement, it had the right to the use and possession of all of it.

It will be noted that the clause in the deed is not "for right-of-way," but "for railroad purposes."

The uncontradicted evidence shows that the grants under which appellee Thompson and others occupied portions of the land in controversy were mere licensees. They were only tenants at will; they had no leases for any definite time. There is nothing in these licenses to show that the appellee railway company had abandoned any portion of its premises for railroad purposes. The witness testified that "under these licenses the parties simply held at our will. The licenses is revocable at sixty days' notice, and that precaution is taken to avoid any contention that they might constitute an abandonment. Persons go on there with the understanding that with sixty days' notice they must move their improvements and get off, and for the further reason that no railroad company can determine its needs at any definite time in the future at any particular point."

Conceding, without deciding, that the clause "for railroad purposes only" is in the nature of a condition subsequent giving the grantor the right to re-enter upon condition broken, we are of the opinion that the testimony does not show such breach of the condition as to entitle appellant to re-enter or to have the relief sought in this case.

2. On the same day that the appellant executed his deed to the Kansas City, Fort Scott & Memphis Railway Company, he entered into an agreement whereby, in consideration of a pass over the company's road, he undertook to sign court bonds for the company and also "to act as agent to watch and warn trespassers from encroaching on its right-of-way at Marked Tree."

In 1903, according to appellant's testimony, the appellee Thompson, erected a hardware and furniture store about fifty feet from the track of the railway company. Appellant personally notified Thompson of his claim; told him he had deeded the land to the railway company for railroad purposes only, and protested that appellee Thompson had no right to build on it. Thompson replied that he had a lease from the company, and was amply protected, and he kept on building on the right-of-way over appellant's protest and objection until appellant had him enjoined. The agent of the appellee company, having its land matters in charge at Marked Tree, as early as the latter part of October, 1905, went to Marked Tree and saw the appellant. The agent on this first visit had considerable conversation with the appellant. Appellant called his attention to the...