Sun Oil Co. v. Emery

• Decision Date: 31 January 1969
• Docket Number: No. 36958,36958
• Citation: 183 Neb. 793,164 N.W.2d 644
• Parties: SUN OIL COMPANY and Farmers Irrigation District, Appellants, v. Mary EMERY et al., Appellees.
• Court: Nebraska Supreme Court

Page 644

164 N.W.2d 644

183 Neb. 793

SUN OIL COMPANY and Farmers Irrigation District, Appellants, v. Mary EMERY et al., Appellees.

No. 36958.

Supreme Court of Nebraska.

Jan. 31, 1969.

Syllabus by the Court

1. 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.

2. Ordinarily, the inclusion of a purpose clause in a deed, of and by itself, does not operate to limit the estate granted by the deed.

Robert J. Bulger, Bridgeport, Richard W. Coates, Denver, Colo., for appellants.

Lyman & Gallawa, Frank Glebe, Scottsbluff, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, and McCOWN, JJ., and HUBKA and GARROTTO, District Judges.

WHITE, Chief Justice.

The question involved in this case is whether the plaintiffs acquired a title in fee or a mere right-of-way by virtue of a deed executed by their predecessors in the chain of title in 1910. The pertinent portions of the deed are: 'That the said parties * * * have remised, released and quit-claimed, and by these presents do, for themselves, their heirs, executors, administrators and assigns, remise, release and forever quit-claim and convey unto the said party of the second part and to its successors and assigns forever, all their right, title, interest, estate, claim and demand, both at law and in equity, of, in and to all of a certain strip of ground in

'Lot No. 3 in Section Eighteen.....(18)

Township Twenty-two.....(22)

North of Range Fifty-three.....(53) 'west of the Sixth Principal Meridian in Scotts Bluff County, Nebraska; Said strip of ground being of the uniform width of one hundred and fifty (150) feet, being seventy-five feet (75 ft.) on each side of the center line of The Farmers Mutual Canal Company's canal, as surveyed and located over, through and across said Lot No. Three (3) of said Section Eighteen (18)

'This deed is given for the purpose of conveying to the party of the second part a right of way for its irrigation canal over, through and across said above described premises, together with all and singular the hereditaments thereunto belonging.

'To have and to hold the above described premises unto the said The Farmers Mutual Canal Company, its successors and assigns, so that neither they, the said Mathias Schumacher and Nancy Schumacher, Nor any person in their name and behalf, shall or will hereafter claim or demand any right, title or interest to the said premises or any part thereof; but they and every one of them shall by these presents be excluded and forever barred.' (Emphasis supplied.)

Considerable ingenious and refined argument in the briefs of both parties is devoted to a discussion of the rules of construction used in construing deeds. These rules, of course, may be helpful in determining the fundamental question of the intent of the parties, but they should never be applied with ritualistic supremacy. The rule of law at the bottom of this case and in effect at the time the conveyance was made in 1910 is section 6192, Rev.St.1913, as follows: 'Every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.' The present statute, section 76--104, R.R.S.1943, is in part as follows: 'An othewise 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.'

In determining whether there was an effective limitation required by the statute, the question boils down to whether the words, 'This deed is given for the purpose of conveying to the party of the second part a right of way for its irrigation canal * * *' is mere description or whether it effectively created an intent to reserve an interest in the property, contrary to the absolute terms of the granting clause and the last paragraph, the traditional 'habendum' clause.

In Carr v. Miller, 105 Neb. 623, 181 N.W. 557, the pertinent language of the deed was: '* * * does hereby grant, bargain, sell, and convey unto the said Omaha Bridge & Terminal Railway Company, its successors and assigns, for terminal and railway purposes and uses, the following described real estate * * *.' This court said: 'We think that the words quoted amount at most only to a description of the use to which the land was to be put, or at most a covenant for the violation of which a suit for damages might be maintained. * * * We find nothing in the words, 'for terminal and railway purposes and uses,' which indicates that The grantor intended to reserve in itself any...