State, Dept. of Roads v. Union Pacific R. Co.

• Citation: 241 Neb. 675,490 N.W.2d 461
• Decision Date: 09 October 1992
• Docket Number: Nos. S-89-1144,S-89-1345 and S-89-1347,s. S-89-1144
• Parties: , 242 Neb. 97 STATE of Nebraska, DEPARTMENT Of ROADS, Appellee, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellant.
• Court: Supreme Court of Nebraska

Page 461

490 N.W.2d 461

241 Neb. 675, 242 Neb. 97

STATE of Nebraska, DEPARTMENT Of ROADS, Appellee, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellant.

Nos. S-89-1144, S-89-1345 and S-89-1347.

Supreme Court of Nebraska.

Oct. 9, 1992.

On Rehearing Dec. 24, 1992.

Supreme Court of Nebraska

1. Summary Judgment: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus is not appealable, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions.

2. Summary Judgment. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Conveyances: Property: Intent. The rule in Nebraska is that an otherwise effective conveyance of property transfers the entire interest which the conveyor has, and has the power to convey, unless an intent to transfer a less interest is effectively manifested.

5. Conveyances: Estates. An estate in fee simple determinable is created by a special limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that the estate shall automatically expire upon the occurrence of a stated event.

6. Conveyances: Deeds: Estates. A deed which conveys an estate in fee simple, but provides that the grantor or his successor has power to terminate the estate upon the happening of some event or condition, creates an estate in fee simple subject to a condition subsequent.

7. Conveyances: Intent. It is the intent of the parties, manifested within the language of the entire instrument, which determines the nature of the conveyance.

8. Deeds. In a deed it is the habendum clause which defines the extent of the ownership in the thing granted to be held and enjoyed by the grantee.

Brenda J. Council, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Jeffery T. Schroeder, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

These appeals involve three separate cases. Case No.S-89-1144 was filed in Custer County, Nebraska; case No. S-89 1345 was filed in Dawson County; and case No.S-89-1347, in Buffalo County. Since the cases involve similar questions, they will be considered together. Both defendant-appellant, Union Pacific Railroad Company (hereinafter Railroad), and plaintiff-appellee, State of Nebraska, Department of Roads (hereinafter State), filed motions for summary judgment in each case. Each motion was submitted on stipulations between the parties, affidavits, and the pleadings. The stipulations included deeds to the State and to the Railroad as to the property in question. There was no factual dispute.

The district court in each county sustained the State's motion and denied the Railroad's motion. The summary judgment granted in the district court in each county quieted title in the State to the lands in question.

The Railroad timely appealed in each case and in this court assigns the same three errors in each case. The Railroad contends that the trial court erred (1) in determining that, as a matter of law, the Railroad and its predecessors in title obtained only an easement in the property it acquired; (2) in determining that upon the Railroad's abandonment of rail service over the acquired property, the State obtained title to the one-half of the property abutting state Highway 40; and (3) in sustaining the State's motion for summary judgment and denying the Railroad's motion for summary judgment. We reverse.

The record in each case before us shows the facts before the district courts and this court as set forth in the stipulations filed with the respective trial courts. The record shows that the Railroad's predecessors in interest acquired property by "Right of Way Deeds" in Buffalo, Custer, and Dawson Counties. The majority of the deeds were executed in 1886, with a few executed in 1887, some in 1890, and one in 1892. The language of the right-of-way deeds will be set out below. The land was used in the Railroad's operation of what came to be known as the Kearney Branch, which extended generally from Kearney, Nebraska, north and west to Callaway, Nebraska.

In the 1930's and 1960's, the State, by general warranty deeds, acquired property which abuts the railroad line. The State's land is located parallel to and south and west of the Railroad property for the length of the Kearney Branch. The land was purchased by the State for construction of Highway 40.

In the early 1980's, because of decreasing traffic levels on the Kearney Branch line, the Railroad requested and obtained Interstate Commerce Commission approval to abandon rail service over much of that line. The Railroad removed its track from these portions of its line, and has, since that time, been negotiating with interested parties, including the State, to sell the property.

In summary, the State's position is that the Railroad's right-of-way is an easement and, once abandoned, reverts to the owners of the land adjoining the easement. The State purchased its right-of-way from the assigns of the Railroad's original grantors, and out of the same original tracts of land from which the Railroad's right-of-way came. The State asserts that as an owner of land abutting the Railroad's right-of-way, the State owns the land to the centerline of the Railroad's abandoned right-of-way, and therefore, that land must revert to the State. The Railroad asserts that it held possession pursuant to warranty deeds which contained a clause providing for the possibility of reverter to the original grantors in the event that the Railroad ceased to use the land for railway purposes; that under current law, the possible reversion is void as against public policy; and that the land belongs, in fee, to the Railroad, pursuant to the original warranty deeds to its predecessors in title.

As stated above, the Railroad has appealed from the granting of summary judgment to the State and from the denial of its motion for summary judgment. As we stated in Nu-Dwarf Farms v. Stratbucker [A]lthough the denial of a motion for summary judgment is not a final order and thus is not appealable, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions, making an order specifying the facts which appear without substantial controversy and directing such further proceedings as it deems just. Licht v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566 (1990).

Farms, 238 Neb. 395, 397, 470 N.W.2d 772, 775-76 (1991):

Each of the district courts sustained the State's motion for summary judgment and quieted title to the southwest one-half of the Railroad right-of-way in the State.

"A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law.... In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence."

Wiles v. Metzger, 238 Neb. 943, 948, 473 N.W.2d 113, 118 (1991).

Additionally, since the parties in each of the cases seek to quiet title to the property in question, the cases are in equity. Our review, therefore, is de novo on the record. See Drew v. Walkup, 240 Neb. 946, 486 N.W.2d 187 (1992).

The Railroad's first assignment of error asserts that the trial court erred "in determining that, as a matter of law, the estate taken under the deeds by which Defendant acquired the subject property was an easement." The Railroad contends instead that its predecessors in interest acquired a defeasible fee simple.

The disposition of this question is pivotal to the Railroad's claims. If the estates conveyed to the Railroad's predecessors in title were easements, as the State contends, the law of Nebraska is clear that on abandonment of railroad use, title to the land contained within the right-of-way would revert to the adjoining landowner, which is the State in these cases. See Lillich v. Lowery, 211 Neb. 757, 320 N.W.2d 463 (1982).

The rule in Nebraska is that an otherwise effective conveyance of property transfers the entire interest which the conveyor has, and has the power to convey, unless an intent to transfer a less interest is effectively manifested. Neb.Rev.Stat. § 76-104 (Reissue 1990); Sun Oil Co. v. Emery, 183 Neb. 793, 164 N.W.2d 644 (1969).

An estate in fee simple determinable is created by a special limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that " 'the estate shall automatically expire upon the occurrence of a stated event.' " Ohm v. Clear Creek Drainage District, 153 Neb. 428, 431, 45 N.W.2d 117, 119 (1950). The term "special limitation" is defined as one which causes the created interest to terminate automatically, such as a transfer of Blackacre to " ' "B...