Rowell v. Gulf, M. & O.R. Co.

• Decision Date: 12 December 1946
• Docket Number: 1 Div. 267.
• Citation: 28 So.2d 209,248 Ala. 463
• Court: Alabama Supreme Court
• Parties: ROWELL et al. v. GULF, M. & O. R. CO.

28 So.2d 209

248 Ala. 463

ROWELL et al. v. GULF, M. & O. R. CO.

1 Div. 267.

Supreme Court of Alabama

December 12, 1946

D R. Coley, Jr., and Sidney S. Pfleger, both of Mobile, for appellants.

McCorvey Turner & Rogers, C. A. L. Johnstone, Jr., and Carl Fox all of Mobile, for appellee.

SIMPSON Justice.

Decision rests on the construction to be accorded two certain land deeds of bargain and sale executed respectively by William H. Rowell and wife and Thomas B. McDonald and wife, in 1899, to the Mobile & Ohio Railroad Company.

The deeds were for irregular parcels of land and except for the differences in amounts of the cash consideration, the granting clauses of the two were identical and recited that the grantors 'for the further consideration of the benefits to accrue to us from the construction of a railroad on the strip of land and on the station ground herein conveyed, do grant, bargain, sell and convey unto the said Mobile & Ohio Railroad Company for right of way and station grounds that certain tract of land situated in Mobile County, Alabama, more particularly described as follows, to-wit:' After the description of the land, Rowell's deed recited: 'The station grounds and right of way herein conveyed and the tract of land herein described being according to a map and survey signed by J. E. Buck, C. E. * * *.' The habendum clause of each deed was the same: 'To Have And To Hold unto the said Mobile & Ohio Railroad Company and its successors forever.'

Subsequent to 1899 McDonald conveyed to Rowell his interest in his surrounding land including in the conveyance the land sold to the railroad but subject to the rights of the railroad under his former deed to it.

This suit is by the appellants, as executors and trustees under the last will and testament of Rowell, now deceased, who seek to establish title and possession to all of the land conveyed to the railroad company by the said two deeds because of an alleged abandonment thereof as a railroad and station ground by the railroad company's successor, appellee.

The question is whether these instruments conveyed an absolute estate in fee simple of the lands described or a mere easement or servitude thereon.

The quoted language in the deed that the conveyed land was 'for right of way and station grounds,' and similar language captioning a plat appended to each deed, is the language which appellants claim reduces the quantity of the estate from a fee simple to a base fee. They contend that this language, indicative of a contemplated use of the property, made the title a defeasible one conditioned upon the use thereof as a station ground and railroad and implied a reversion or forfeiture for abandonment.

The decided weight of authority is that where the deed, in the granting clause, conveys a right of way only, the estate conveyed is construed to be an easement and not a fee. 132 A.L.R. 172, Note III a; Stevens v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 212 S.W. 639; Right of Way Oil Co. v. Gladys City Oil Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A., N.S., 268; Jones v. Van Bochove, 103 Mich. 98, 61 N.W. 342, 343; Cincinnati, I., St. L. & C. Ry. Co. v. Geisel, 119 Ind. 77, 21 N.E. 470; Indianapolis & V. R. Co. v. Reynolds, 116 Ind. 356, 19 N.E. 141; Cleveland, C. C. & I. Ry. Co. v. Coburn, 91 Ind. 557; Blakely v. Chicago, K. & N. R. Co., 46 Neb. 272, 64 N.W. 972; Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357, 38 P. 1126. Our own court holds to this view. Seaboard Air Line Ry. v. Banks, 207 Ala. 194, 92 So. 117.

But, this principle is without controlling effect here, because the instruments disclose more than a grant of a right of way through or over land. As will appear from the italicized portions above, the deeds contain apt and certain words of an outright conveyance of the land itself. The case before us then is, not the interpretation of instruments conveying a right of way over land, but of the conveying of a tract of land without limitation as regards the use contemplated and without reservation or condition in case of abandonment.

There is some contrariety of opinion by the courts in construing instruments of this character, but we think this conflict is due in a measure to the varying language of the deeds brought in for interpretation. On a careful study of the authorities it is our considered opinion that the deeds under review conveyed the entire fee, and not merely an easement.

We have said that in construing deeds 'The granting clause in a deed prevails over introductory statements in conflict therewith, and over the habendum also [though here, we interpolate, the habendum imports a full fee], if that clause is contradictory of, or repugnant to, said granting clause. Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Webb v. Webb, 29 Ala. 588. Therefore, when the granting clause provides for a certain or specific estate, and the character or nature of said estate is changed or lessened by some interlocutory clause, or by the habendum, there would be a conflict or repugnancy, and the granting clause should prevail.' Graves v. Wheeler, 180 Ala. 412, 416, 61 So. 341, 343.

It is also a primary rule of exposition that forfeitures and conditions in grants are not favored in law and, if effective, must be clearly expressed, and every estate in lands is to be taken as a fee simple, though words necessary to create such an estate are not used, unless it clearly appears that a less estate was intended. Hunter v. Murfee, 126 Ala. 123, 28 So. 7; Code 1940, Title 47, § 14 (Code 1896, § 1020).

It is also established that 'a fee will pass by a deed containing a clause or recital which is merely declaratory of the use contemplated of the land where the other parts of the deed operate as a conveyance of the fee.' 18 C.J. 336, § 335. See also 26 C.J.S., Deeds, § 134, p. 436.

And, in deeds granting 'land' rather than a 'right,' the fact that the instrument contains additional language embodying some reference to its contemplated use as a 'right of way' does not without further qualifying terms operate to limit the estate conveyed or cut it down from a title in fee to an easement. 44 Am.Jur. 317, § 102.

The result of the foregoing principles is that a condition sufficient to work a forfeiture by abandonment will not be raised by implication from a mere declaration in the deed that the grant is made for a certain purpose without being coupled with apt words to clearly impose such a condition. See R.C.L. 1103, par. 161.

It is difficult to find such clearly expressed condition here. Indeed, from aught that can be gathered from the language of the deeds the sale might have been for a right of way and station ground and still have been a sale of land and not an easement, and in no sense a debasement of the fee, so clearly conveyed by the granting and habendum clauses of the two instructions. If an ircorporeal right were intended to be granted, apt words should have been employed to clearly indicate such and to specifically qualify these controlling clauses. As observed in a similar case (our interpolation) 'If it was the grantor's purpose to have the title of the land she [he] was selling revert to her [him] unless the use of the property for railroad purposes should be perpetual, she [he] naturally would have inserted in the deed a technical common law condition and not a mere statement which at most is a covenant or agreement. Rawson v. Inhabitants of Uxbridge, 7 Allen, Mass., 125, 83 Am.Dec. 670; Barker v. Barrows, 138 Mass. 578; French v. Inhabitants of Quincy, 3 Allen 9.' In re...