Stone v. USD NO. 222, 90,317.

• Decision Date: 25 June 2004
• Docket Number: No. 90,317.,90,317.
• Citation: 278 Kan. 166,91 P.3d 1194
• Parties: GARY STONE and DANIELLE STONE, Plaintiffs/Appellees, v. U.S.D. No. 222, Defendant/Appellant, and GARY HADDAN, d/b/a HADDAN WRECKER & EXCAVATING, Defendant.
• Court: Kansas Supreme Court

278 Kan. 166

91 P.3d 1194

GARY STONE and DANIELLE STONE, Plaintiffs/Appellees, v. U.S.D. No. 222, Defendant/Appellant, and GARY HADDAN, d/b/a HADDAN WRECKER & EXCAVATING, Defendant.

No. 90,317.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Teresa L. Sittenauer, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and David R. Cooper, of the same firm, was with her on the briefs for appellant U.S.D. No. 222.

Jason E. Brinegar, of Galloway, Wiegers & Heeney, P.A., of Marysville, argued the cause and was on the briefs for appellees Gary and Danielle Stone.

The opinion of the court was delivered by

DAVIS, J.

Burlington Northern Railroad Company (railroad) conveyed property to U.S.D. No. 222 (school district). The adjacent landowners Gary and Danielle Stone (Stones) were granted partial summary judgment based upon the trial court's ruling that the land reverted to the Stones when its use for a right-of-way was abandoned. The trial court concluded that notwithstanding the railroad's fee simple interest by original deed, the land was used for a right-of-way limiting the railroad's interest to a right-of-way easement only. The Court of Appeals affirmed in Stone v. U.S.D. No. 222, 31 Kan. App. 2d 1063, 77 P.3d 509 (2003). We granted the school district's petition for review, and reverse and remand with directions.

Facts

On November 7, 1883, Hugh and E.J. Little conveyed real estate in Washington County, Kansas, to The Chicago, Iowa & Kansas Railroad Company by warranty deed recorded on December 4, 1883:

"This Indenture, Made this 7th day of November A.D. 1883, between Hugh Little and E.J. Little, husband & wife, of Washington County, in the State of Kansas of the first part; and The Chicago Iowa and Kansas Railroad Company _______ of County in the State _______ of the second part:

"Witnesseth, That the said part[y] of the first part, in consideration of the sum of Five hundred and Seventy Three and 65/100 (573 65/100) Dollars, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell and convey unto said party of the second part, its successors and assigns, all the following described REAL ESTATE, situated in the County of Washington, and State of Kansas, to-wit:

"Commencing at a point twenty (20) rods north of the South East corner of the North East quarter of Section two (2) in Town 3 S of R 3 E in Washington County State of Kansas Thence West 235 feet Thence North 15 rods thence east 235 feet Thence South 15 rods to the place of beginning.

"To have and hold the same, Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever:

"And said Hugh W. Little and E.J. Little for themselves and their heirs, executors or administrators, do hereby covenant, promise and agree to and with said party of the second part, that at the delivery of these presents they are lawfully seized in their own right, of an absolute and indefeasible estate of inheritance, in fee simple, of an in all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged and un[e]ncumbered, of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and [e]ncumbrances of what nature or kind soever; and that they will WARRANT AND FOREVER DEFEND the same unto said party of the second part, its successors and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same."

Six months later, by deed dated May 16, 1884, The Chicago, Iowa & Kansas Railroad Company conveyed a portion of this real estate to F.M. Cox and W.H. Emery:

"This deed is intended to convey to the said F.M. Cox and W.H. Emery all the land lying south of a line drawn fifty (50) feet south of, and parallel with, the railroad of the said Chicago, Iowa & Kansas Railroad Company; said land having been conveyed to said Railroad Company by a deed from Hugh Little and wife, dated November 7th 1983, and recorded December 7, 1883 . . . ."

The deed described the property as follows:

"Commencing at a point twenty (20) rods north of the southeast corner of the northeast quarter of Section two (2), in Township three (3) South, Range three (3) East of the Sixth (6th) principal meridian; thence west two hundred and thirty-five (235) feet; thence north one hundred and thirty (130) feet; thence north sixty-seven (67) degrees east magnetic for two hundred and forty (240) feet; thence south one hundred and eighty-one (181) feet to place of beginning; and also the small brick house now standing on the right of way immediately north of the above described tract."

After the conveyance to Cox and Emery, the railroad owned a trapezoid-shaped piece of land measuring 117.5 feet on the west, 235 feet on the north, 66.5 feet on the east, and 240 feet along the south border (subject property). Upon this subject property the railroad laid tracks and the property was used for well over 100 years as its right-of-way. Although the deeds are not in the record on appeal, we note that the district court found that surrounding landowners granted the railroad right-of-ways in their land in 1883 and 1884. The railroad line was eventually abandoned, but when this occurred is not clear from the record.

The Chicago, Iowa & Kansas Railroad Company's successor in interest, the Burlington Northern Railroad Company, conveyed the subject property to the school district by quitclaim deed dated February 25, 1986, recorded on March 14, 1986, which described the land as:

"All that portion of Burlington Northern Railroad Company's right-of-way and station ground property at Washington, Kansas on the Odell, Nebraska to Concordia, Kansas Branch Line right-of-way August 15, 2003, now discontinued, varying in width on each side of the main track centerline, as originally located and constructed upon, over and across a part of the S ½ of the NE ½ of Section 2, Township 3 South, Range 3 East, lying Easterly of the West line of `E' Street in the Town of Washington, Washington County, Kansas."

During the spring and summer of 2001, the school district directed defendant Gary Haddan, d/b/a/ Haddan Wrecker & Excavating (Haddan), to secure fill dirt from the subject property to backfill a hole left when a school was razed. As adjacent landowners to the subject property, the Stones filed a petition for damages based on trespass against the school district and Haddan. The Stones claimed the removal of this dirt damaged the remainder of their property by removing valuable vegetation, altering the flow of rain water, causing flooding and channel formation, and soot and dirt relocation, which has reduced the value of their property.

Both parties filed motions for partial summary judgment on the issue of ownership of the subject property. The Stones argued that the subject property reverted to them because the railroad had only obtained a right-of-way that had been since abandoned. The school district argued that the subject property did not revert to the Stones because the railroad held the subject property in fee simple absolute and conveyed it to the school district by quitclaim deed.

Ruling in favor of the Stones, the district court found that the deeds in the chain of title showed that the property was acquired by the predecessor railroad for railroad purposes (construction and maintenance), and that the railroad held a right-of-way only because of the use for which the property was acquired. Thus, the property reverted to the Stones as the adjoining landowners on abandonment of the right-of-way. The school district filed a timely interlocutory appeal and the Court of Appeals affirmed the district court's ruling.

On petition for review, the school district argues the Court of Appeals erred in affirming the district court's order granting partial summary judgment in favor of the Stones. The school district argues the railroad was granted fee simple title in the original warranty deed and the railroad conveyed the same to the school district. The Stones argue that the railroad only had an easement in the subject property which was used as a railroad right-of-way, and the property reverted to them as adjacent landowners upon abandonment.

The question we must answer is whether the railroad's interest in the subject property was limited to a right-of-way or if it was a fee simple absolute interest. The answer to the question lies in Kansas statutory law and the past appellate decisions of Kansas. After identifying the governing statute, we will review those key past appellate decisions bearing upon the question. We will then discuss the Court of Appeals' resolution of the question. Finally, we will resolve the question presented.

Relevant Kansas Authority

A railroad may acquire an interest in real property by eminent domain, by purchase, or by voluntary grant. Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, 207, 675 P.2d 375 (1984). K.S.A. 66-501 provides that every railway corporation has the power:

"Second. To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance and accommodation of its railway." (Emphasis added.)

"Third. To lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road; and also such land as may be deemed necessary for side tracks, depots, workshops and water stations . . . ."

"If a

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