Sherman v. Petroleum Exploration

• Decision Date: 17 October 1939
• Citation: 280 Ky. 105
• Parties: Sherman et al. v. Petroleum Exploration et al.
• Court: United States State Supreme Court — District of Kentucky

280 Ky. 105

Sherman et al. v. Petroleum Exploration et al.

Court of Appeals of Kentucky.

October 17, 1939.

1. Deeds. — The test in construing a deed is that of intention, which is to be gathered from context of the instrument, read in those lights which are properly employed in construing writings.

2. Railroads. — An indefinite or ambiguous conveyance of land specifically for a railroad right of way is in its interpretation subject to influence of a general knowledge that much railroad right of way is expressly or by operation of law limited to an easement, which has usually been found sufficient for purposes desired.

3. Railroads. — Where a deed of conveyance of land to a railroad expressly grants a right of way, the deed will be held to have conveyed an easement.

4. Railroads. — Where land is conveyed to a railroad, the fact that the deed contains a conveyance of warranty or that the right acquired is designated as a fee is not necessarily controlling on question whether deed conveys a fee or an easement.

5. Railroads. — In the construction of a deed conveying land to a railroad for "railroad right of way," the quoted words could not be rejected as surplusage, for it is presumed that no clause or word in a deed was used without meaning or intent.

6. Railroads. — In determining whether a deed of land to a railroad for "railroad right of way" conveyed a fee or an easement, the quoted words could be considered as a declaration of purpose or use to be made of the land.

7. Deeds. — The interpretation of a deed must be with that position

of the parties and the circumstances under which they acted in mind.

8. Deeds. — If there is an actual repugnancy which cannot be reconciled between the habendum and granting clause of a deed, the habendum clause must yield to granting clause.

9. Deeds. — Where a deed contains inconsistent clauses, if intention of parties is apparent from a determination of the deed from its four corners, the deed will be given effect regardless of technical rules of construction.

10. Corporations. — The use of the words "successors and assigns," in the granting clause of a deed to a corporation, do not amount to an express grant of a fee.

11. Railroads. — In determining whether a deed of land to a railroad "for railroad right of way" conveyed a fee or an easement, not much significance should be given to a covenant of general warranty in deed or to recitation in habendum clause that estate with all its appurtenances was conveyed, because there may be a warranty of title to an easement and an easement with its appurtenances may be granted in perpetuity.

12. Railroads. — If, in a deed to a railroad, the land conveyed is described as a right of way, the deed may be construed as giving an easement right only, and not the full fee, notwithstanding that there are other words in the deed referring to fee simple, because such a conveyance implies a grant of easement forever.

13. Railroads. — A deed conveying a strip of land 50 feet on each side of center line of a railroad for "railroad right of way," with habendum clause reciting that strip was conveyed to grantee and his successors and assigns forever, with covenant of general warranty of title, conveyed only an easement for railroad purposes and the property reverted to grantor and his successors when land ceased to be used for railroad purposes.

14. Adverse Possession. — The possession of a strip of land by a railroad under deed giving railroad an easement for railroad purpose was not adverse to the owner of the fee.

15. Champerty and Maintenance. — Where railroad had possession of land under a deed conveying an easement to use land for railroad purposes, lease of oil and gas rights in land by owner of fee was not champertous.

16. Railroads. — Where a railroad company had only an easement for its right of way, the owner of tract of land which was subject to easement had exclusive right to oil and gas underneath, and, when the easement had been abandoned, the owner had right to drill wells thereon.

Appeal from Lee Circuit Court.

Shumate & Shumate and D.C. Howell for appellants.

Rose & Stamper, E.C. O'Rear, Allen E. Prewitt and William A. Young for appellees.

Before Charles L. Seale, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

The case involves conflicting oil and gas leases of a portion of an abandoned railroad right of way. Its decision depends upon the character of title first conveyed by the owner of the body of land of which it was a part. In this suit to quiet their title to the parcel and enjoin the defendants from developing it, the plaintiffs established their title to the lease of the original tract of 190 acres back to a deed of November 7, 1919, of the Duck Fork Land & Coal Company to J.F. Sutton, trustee. That deed contains no exclusion or reference to the conveyance of a strip of 2 2/10 acres which the grantor had made on April 2, 1907, to the Kentucky River Coal & Coke Company. If that previous deed conveyed a fee simple title, it is conceded that the defendants, now appellants, have a superior title to the oil and gas on the parcel. If it conveyed only an easement, which was surrendered by the abandonment of the use of the parcel as a railroad right of way, then the plaintiffs, now appellees, have a superior title.

The deed to be construed acknowledges the receipt of "$1.00 cash in hand paid, and other valuable consideration," and conveys out of the 190-acre tract "unto the party of the second part and its successors and assigns a certain strip, tract or parcel of land for railroad right of way," on Duck Fork of Sturgeon creek in Lee county, described as "100 feet in width, being 50 feet on each side of the center line of the Kentucky River Coal & Coke Company's railroad as surveyed and extending from Sta. 105, plus 35 to Sta. 115, plus 32.6 of said survey and containing 2 2/10 acres, more or less." The habendum is "To have and to hold said strip or parcel of land, together with all the appurtenances thereunto belonging, unto the party of the second part and its successors and assigns forever, with covenant of general warranty of title."

A few days after this deed was made the grantee conveyed the property to the Kentucky Coal & Development Company which built a railroad on it. About two years later that company conveyed its railroad and all property used in connection therewith to the Louisville & Atlantic Railroad Company, which shortly thereafter conveyed it to the Louisville & Nashville Railroad Company. In May, 1935, that company removed the railroad, and in June of that year quit-claimed its rights in the right of way, including this portion of it, to Lee County, which has used it as a highway. In October 1938, Lee County executed an oil and gas lease of this parcel to the defendants. The circuit court adjudged the leasehold rights of the plaintiffs superior and granted them the relief sought. The defendants appeal.

It seems unnecessary to consider the competency or effect of intervening conveyances, or the actual use of the land as a railroad right of way, or the deposition of the former president of the original grantor that the conveyance of the strip of land was a donation, for which no consideration was paid, and that it was intended to be and was used only as a railroad right of way. We confine our consideration to the deed and its construction independently.

The essence of the appellants' argument in support of their contention that the deed conveyed a fee simple title may be thus stated: The grant is not of a right of way but of a parcel of land "for railroad right of way," which term is only descriptive of the use to be made of the land, therefore superfluous, and does not...