State v. Fuller

Decision Date05 October 1966
Docket NumberNo. A--11107,A--11107
Citation407 S.W.2d 215
PartiesThe STATE of Texas, Petitioner, v. E. T. FULLER, Jr. et al., Respondents.
CourtTexas Supreme Court

Weller, Wheelus & Green, Beaumont, for E. T. Fuller, Jr., and others.

Strong, Pipkin, Strong & Nelson, T. Turner Pope and Pike Powers, Beaumont, for Minnie B. Justus.

Carl R. Griffith and J. S. Maida, Jr., Beaumont, for Edna Brooks and others.

W. G. Walley, Jr., Beaumont, for State.

WALKER, Justice.

This is an action to determine the surface ownership of the west one-half of a 680.55-foot segment of an abandoned railroad right-of-way. The competing claimants are: (1) the State of Texas, which owns the surface of the land occupied by U.S. Highway 69, west of and adjoining the strip in controversy; (2) E. T. Fuller, Jr. et al, hereinafter referred to collectively as the Fullers, who own the land east of and adjoining the railroad right-of-way; and (3) Edna Brooks et al, hereinafter referred to collectively as the Brooks, who own the land west of and adjoining U.S. Highway 69. Title to the minerals is not in issue, and the Fullers are recognized to be the surface owners of the east one-half of the abandoned railroad right-of-way adjoining their property.

An action in trespass to try title and for a declaratory judgment was instituted by the State against the other claimants, and the trial court rendered summary judgment in favor of the State. This judgment was modified by the Court of Civil Appeals to include a declaration that the Fullers, as owners of the land east of the strip in controversy, have a right of access to Highway 69, and as so modified the judgment of the trial court was affirmed. 394 S.W.2d 203. Applications for writs of error were filed by the State, the Fullers and the Brooks, and all applications were granted. It is our opinion that the judgment of the trial court was correct and should be affirmed.

The following plat will be of assistance in understanding the situation and contentions of the parties:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

John J. French is the common source of title to all of the land shown on the plat. By deed dated September 9, 1880, he conveyed to East Texas Railway Company a railroad right-of-way easement 100 feet in width. Some nine years later he conveyed the land east of and adjoining the railroad right-of-way to Mrs. C. C. Blanchette. The Fullers acquired title to an 8-acre tract, which adjoins the railroad right-of-way on the east for a distance of 680.55 feet, through and under Mrs. Blanchette. The deeds in this chain of title purport to convey land bounded on the west by the east line of the railroad right-of-way. Fee simple title to the remainder of the land shown on the plat passed, subject to the railroad easement, from John J. French to Mrs. Edna French. On May 15, 1937, she conveyed the right-of-way for State Highway 40, later U.S. Highway 69, to the State of Texas. This conveyance was by general warranty deed, but all minerals were reserved to the grantor. It describes a strip of land 130 feet wide and 1509 feet long lying west of and adjoining the railroad right-of-way. Several small tracts immediately west of the highway were subsequently conveyed by Mrs. French to the Brooks or their predecessors in title. The railroad abandoned its right-of-way in 1961.

It is well settled that a deed to land abutting on a railroad right-of-way conveys title to the center of the right-of-way unless the contrary intention is expressed in the instrument. Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Joslin v. State, Tex.Civ.App., 146 S.W.2d 208 (wr. ref.). Under this rule the Fullers became the owners, subject to the easement, of the east one-half of the railroad right-of-way adjoining their 8-acre tract. Their title thereto, which ripened into absolute ownership when the right-of-way was abandoned, is not disputed by either the Brooks or the State.

The State relies upon the rule just mentioned as the basis of its claim to the west one-half of the railroad right-of-way, while the Brooks insist that this case is governed by the exception recognized in Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777. There we were concerned with the title to the minerals underlying three adjoining easements which ran in a general northerly and southerly direction. The Boothe plaintiffs held under a deed purporting to convey the land east of and adjoining the most easterly strip in controversy, and the land west of the disputed strips passed to the Haines heirs. The latter then conveyed to Scurry County the right-of-way of U.S. Highway 84, which lay immediately west of and adjoining the most westerly of the three strips.

We recognized in Haines that the deed to Scurry County conveyed at least a determinable fee. The instrument recited, however, that the conveyance was in the nature of a donation for highway purposes only, and stipulated that the property would revert to the grantors in the event it ceased to be used for such purposes. It was held that the minerals under the east one-half of the three strips were owned by the Boothe plaintiffs, and that the minerals under the west one-half were owned by the Haines plaintiffs. In rejecting the contention that title to part of three strips was outstanding in Scurry County, we said:

'Whether we rationalize our conclusion on the theory that the restrictive language of the deed (to Scurry County) in the light of attendant circumstances amounted to an 'express reservation' of the easement area under the rule as stated in Rio Bravo, Cox and Joslin cases, or simply refuse to apply the result of those decisions to a new situation where it seems unnatural to apply it, or say that here the additional area in question cannot realistically be called an appurtenance of the strip conveyed to Scurry County, our conclusion appears to us the more just solution of the problem.'

Here we are concerned only with the surface of the strip in controversy, and no minerals are involved. The deed from Mrs. Edna French to the State, the relevant portions of which are quoted in the margin, 1 was executed for a recited consideration of $2,056.50 paid in cash. All oil, gas and other minerals were reserved to the grantor, but the instrument contains no other restriction or reservation. It purports to 'grant, bargain, sell and convey' the land therein described, which adjoins the railroad right-of-way on the west, and includes a covenant of general warranty. We agree with the Court of Civil Appeals that the Haines exception is not applicable under these circumstances, and that the case is governed by the general rule mentioned above. See Bowers v. Atchison, T. & S.F.R. Co., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228.

The Fullers say that the deed from Mrs. Edna French to the State conveyed only an easement, and argue from this premise that they are entitled to the east one-half of the combined highway and railroad strips, which would give them all of the former railroad right-of-way. They cite Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268, where the railroad company was held to have acquired...

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