Severns v. Union Pacific Railroad Co.

• Decision Date: 09 September 2002
• Docket Number: No. B150284.,B150284.
• Citation: 125 Cal.Rptr.2d 100,101 Cal.App.4th 1209
• Court: California Court of Appeals Court of Appeals
• Parties: Gary M. SEVERNS, Plaintiff and Respondent, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellant.

125 Cal.Rptr.2d 100

101 Cal.App.4th 1209

Gary M. SEVERNS, Plaintiff and Respondent, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellant.

No. B150284.

Court of Appeal, Second District, Division 4.

September 9, 2002.

As Modified on Denial of Rehearing September 30, 2002.

Lowell & Robbin, David S. Robbin, San Diego, and Mark M. Clairmont, La Palma, for Defendant and Appellant.

Bidna & Keys and Jon A. Longerbone, Newport Beach, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

Gary M. Severns (plaintiff) brought a quiet title action against Union Pacific Railroad Company (Union Pacific). The bone of contention was interpretation of a 1901 transaction in which Frederick and Elisabeth Bluemle granted an interest to the California Pacific Railway Company (California Pacific Railway). In essence, plaintiff alleged that the 1901 conveyance transferred only an easement, not a fee interest; that he was the successor in interest to the Bluemles and therefore the owner of the land (servient estate) burdened by the easement; and that the easement had been terminated by abandonment. He therefore sought to quiet title as against Union Pacific, the successor in interest to the California Pacific Railway.

The matter was tried to the court on a statement of undisputed material facts. The court found the conveyance was ambiguous and therefore considered extrinsic evidence to interpret it. The trial court ultimately concluded that the 1901 conveyance created only an easement; that the easement had been extinguished by abandonment; and that under the doctrine of marginal streets, plaintiff was entitled to have title quieted on his behalf to the abandoned railroad easement abutting his land. The trial court therefore entered judgment in favor of plaintiff. This appeal by Union Pacific follows.

We reverse. The trial court erred in first concluding the 1901 deed was ambiguous and in then using extrinsic evidence to interpret it. The deed is unambiguous. It conveys a fee simple subject to a condition subsequent: the realty can return to the grantors or their assigns if the railroad ceases for six months to use the property as a right-of-way. Given it is undisputed that said condition occurred, plaintiff, as successor in interest to the original grantors, had a right to exercise a power of termination to reclaim the land. However, the Marketable Record Title Act (Civ. Code, § 880.020 et seq.) requires plaintiff or his predecessor(s) in interest to record in a timely way an intent to preserve the future interest. No one made the necessary recordation. We reject plaintiffs contention that the Marketable Record Title Act cannot constitutionally be applied to him. The statutory scheme does not violate the contract clause or due process. The failure to comply with that statutory requirement resulted in the expiration of the power of termination and therefore barred plaintiffs action. Accordingly, we reverse the judgment.

STATEMENT OF FACTS

In 1901 the Bluemles executed the following handwritten deed.

"This indenture, made this 4th day of December A.D.1901 between Frederick Bluemle and Elisabeth Bluemle his wife, of Los Angeles County California, the parties of the first part, and the California Pacific Railway Company, a corporation, the party of the second part.

"Witnesseth: That the said parties of the first part for and in consideration of the sum of five dollars ($5.00) in U.S. Gold Coin, or equivalent to them in hand paid by the said party of the second part, the receipt of which is hereby acknowledged do by these presents grant, bargain, sell, convey, and confirm unto the said party of the second part and to its assigns forever, all that certain lot parcel or tract of land situate in Los Angeles County, California, and more particularly described as follows, viz:

"A strip of land sixty (60) feet wide West of the West line of the Old Tomlinson Stage Road (also recently, locally called `Vermont Avenue'), and West of adjoining parallel to, and along the entire length of the East line of lot three (3) of the Maria Machado de-Rocha Tract-Rancho San Pedro as per map recorded in Book 6 Page 161 of the Miscellaneous Records of Los Angeles County, California and containing in all, two and eighty-six hundredths (2.86) acres, more or less.

"Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversion and reversions remainder and remainders, rents, issues and profits thereof.

"To Have and to Hold all and singular, the said premises, together with the appurtenances unto the said party of the second part and to its assigns forever.

"Note. [I]t is understood that the above described strip of land herein conveyed, shall be for a right of way, and that said second party, or its assigns shall construct over and along same, a first class electric railway, and will operate said railway with a service of not less than ten daily trains and that local trains or cars, shall stop, for passengers desiring to get on or off the cars at the south line of said right of way.

"Should said railway after being completed and in operation cease thereafter to be operated for a period of six months, then said right of way herein conveyed shall revert to the parties of the first or assigns.

"It is mutually understood and agreed upon by both parties to this indenture, that the existing three wire fence along the east line of said right of way hereunder conveyed shall, for valuable consideration, already received by the said parties of the first part, be move[d] and set up in first class order along the west line of said right of way within thirty days from the date of this indenture by said first parties, their agents or assigns, and free of all expense to the party of the second part, or its assigns, and that the said fence shall, from the date of this indenture belong to the party of the second part or its assigns."

In 1912, the Bluemles conveyed a portion of their land to Lucile Brown, excepting various earlier conveyances. Brown subsequently subdivided her parcel into various lots.

In 1977 and 1978, Frampton Properties, a partnership in which plaintiff held a 25 percent interest, obtained nine of the subdivided lots originally belonging to Brown.

In 1994, Union Pacific commenced removal of the railroad tracks on the right-of-way.

In April 1999, Frampton Properties quitclaimed to plaintiff all of its interest in the nine lots.

In October 1999, plaintiff initiated this quiet title action.

DISCUSSION

A. INTERPRETATION OF THE DEED

The primary objective in interpreting a deed is to ascertain and carry out the intent of the parties. (Machado v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 347, 352, 284 Cal. Rptr. 560.) If the deed is ambiguous on its face, extrinsic evidence is admissible to interpret it. (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1132-1133, 235 Cal.Rptr. 857.) In this case, the trial court found the deed was ambiguous and consequently considered extrinsic evidence to ultimately decide the interest conveyed was an easement.¹

Union Pacific first contends the use of extrinsic evidence was improper because the 1901 deed is not ambiguous. We agree. The deed is not ambiguous. As we now explain, it is essentially identical to the deed analyzed in Concord & Bay Point Land Co. v. City of Concord (1991) 229 Cal.App.3d 289, 280 Cal.Rptr. 623 (Concord). Relying upon only the language of the deed and eschewing any statutory presumptions²or extrinsic evidence (Concord, at p. 294, 280 Cal.Rptr. 623), the Concord court held the deed conveyed a fee subject to a condition subsequent.

In this case, the granting clause recites the Bluemles "grant, bargain, sell, convey, and confirm" the designated parcel. To convey a fee, all that is required is the word "grant." (Schlageter v. Cutting (1931) 116 Cal.App. 489, 498, 2 P.2d 875.) The language used here is the traditional language for a conveyance of a fee and is identical to the language in the Concord deed. (Concord, supra, 229 Cal.App.3d at p. 293, 280 Cal.Rptr. 623.) Significantly, the granting clause does not restrict the grantee to any particular use. Furthermore, it contains language of inheritance ("to its successors and assigns forever"), language indicating a fee conveyance. (Id, at pp. 293-294, 280 Cal.Rptr. 623.)

The next paragraph contains a detailed description of the conveyance. The beginning phrase, "[a] strip of land sixty (60) feet wide"—language virtually the same as that employed in Concord—indicates the land itself is being conveyed, not merely a nonpossessory right to use the land. (Concord, supra, 229 Cal.App.3d at p. 294, 280 Cal.Rptr. 623.) As our Supreme Court has indicated, "[references to `land,' particularly in conjunction with precise and technical designation of the location, generally indicate an intention to transfer the entire estate not just a limited right to pass over the property." (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 244, 52 Cal.Rptr.2d 82, 914 P.2d 160 (Manhattan Beach).)

The following paragraph adds that the grant includes all "tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof." As the Concord court noted, this language "is very likely to be surplusage where an easement alone is conveyed." (Concord, supra, 229 Cal.App.3d at p. 295, 280 Cal.Rptr. 623; see also Johnson v. Ocean Shore Railroad Co. (1971) 16 Cal.App.3d 429, 434, 94 Cal.Rptr. 68.) Hence, it conveys a fee interest.

Next comes the habendum clause ("To Have and to Hold"). This simply repeats the language of inheritance found in the granting clause.

It is not until the following three paragraphs that any reference to a right-of-way appears. Introduced by the word "Note," the conveyance states the understood purpose of...