Tazian v. Cline, 02A03-9603-CV-80

Docket NºNo. 02A03-9603-CV-80
Citation673 N.E.2d 485
Case DateNovember 13, 1996
CourtCourt of Appeals of Indiana

Page 485

673 N.E.2d 485
In re Zohrab K. TAZIAN and Naomi Tazian, Appellants-Defendants,
James A. Long, II and Mary Ann Long, Robert S. Warner and
Malea A. Ramer, and Eleanor L. Doehla, Defendants
(not participating in this appeal),
Alice CLINE, Appellee-Plaintiff.
No. 02A03-9603-CV-80.
Court of Appeals of Indiana.
Nov. 13, 1996.

Page 486

Catherine S. Christoff, Christoff & Christoff, Fort Wayne, for Appellants.

Dennis D. Sutton, Burt, Blee, Dixon & Sutton, Christopher A. Ward, Deputy Attorney General, Fort Wayne, for Appellee.



Zohrab and Naomi Tazian appeal the trial court's grant of summary judgment in favor of Alice Cline, claiming that the trial court erred by finding that Alice Cline held the disputed property in fee simple.

Page 487


The following facts are undisputed. On May 15, 1985, Alice Cline purchased a 4.24 acre strip of land in Allen county from United Railroad Corporation/Penn Central Corporation ("United/Penn") by quitclaim deed. This strip of land abutted the property of the Tazians and the other defendants in the proceeding before the trial court. 1 The land, formerly used as a railroad, was no longer in use by United/Penn. United/Penn was the successor in interest of the Fort Wayne, Jackson & Saginaw Railroad Company ("Fort Wayne R.R."). The Fort Wayne R.R. purchased the land from S. Cary Evans and his wife by a deed dated February 10, 1873 ("1873 deed"). It is this deed that is the sole focus of this appeal. The Tazians contend that the deed grants the Fort Wayne R.R. only an easement, while Cline argues that the deed is for a fee simple estate.

The deed states in relevant part:

This indenture made this 10th day of February AD 1873 between S. Cary Evans & wife of the first part and the Fort Wayne, Jackson & Saginaw Railroad Company [party] of the second part. Witnesseth that the said parties of the first part in consideration of five hundred dollars to them in hand paid by the party of the second part the receipt whereof is hereby acknowledged and in further consideration of the benefits anticipated from said railroad when constructed do grant and convey and warrant to the party of the second part and their successors and assigns a strip of land fifty feet in width on West side of railroad over, across, and through the following described tract of land situated in the county of Allen and State of Indiana, viz:

The South West Quarter of Section Two (2), Township thirty-one (31) North, Range Twelve (12) East, formerly owned by William ? Hawley deceased deeded by Wm. E. Hawley to S.C. Evans recorded record 55, page 438 said strip of ground to be on and along the central line of said railroad as the same shall be finally located on such tract of land and of such width on each side of said central line as the final location of said railroad by said company shall determine. With the right also for the safety of said railroad to cut down standing timber on the outside of either outer line of said strip or any of its structures to have and to hold all and singular the said premises in and by these presents released and conveyed unto the said Fort Wayne, Jackson & Saginaw Railroad Company and their successors and assigns forever for the uses and purposes therein expressed. (R. 71)

Cline brought an action to quiet title in the disputed strip of land on February 24, 1995. The Tazians answered and filed a cross complaint to quiet title to the land abutting their property on March 28, 1995. In their cross complaint, the Tazians claimed that the 1873 deed merely granted the Fort Wayne R.R. an easement to conduct a railroad, which was extinguished when the United/Penn abandoned railroad operations. The Tazians argue that when an easement is extinguished it reverts to the original grantors, so, as successors to the Evanses, title rightfully belongs to them.

On July 29, 1995, Cline filed a motion for summary judgment on the issues of the interpretation of the deed and the quiet title claim. The Tazians responded on August 7, 1995, and filed a counter motion for summary judgment on the same issues. A hearing was held on October 13, 1995, and, on November 1, 1995, the trial court granted summary judgment in favor of Cline on the interpretation of the 1873 deed. In its order, the trial court also requested that Cline submit proposed findings of fact and conclusions of law on the deed interpretation and quiet title issues. On December 12, 1995, the trial court accepted Cline's proposed findings of fact and conclusions of law, quieting title in Cline and ruling the 1873 deed a grant of a fee simple estate. The Tazians filed their appeal on January 4, 1996.


The Tazians present one issue on appeal which we restate as follows:

Page 488

Whether the trial court erred by finding that the 1873 deed was a conveyance of a fee simple.


When reviewing an appeal of summary judgment, "the appellate court faces the same issues, which we analyze in the same way as a trial court does." Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.1992). "We will affirm the granting of summary judgment on any legal basis supported by the record. Our standard of review is unchanged by the entry of findings of fact and conclusions thereon. In the summary judgment context, the entry of findings of fact and conclusions thereon aids our review by providing us with a statement of the reasons for the trial court's actions, but it has no other effect." Chicago Southshore & S.B. R.R. v. Itel Rail, 658 N.E.2d 624, 629 (Ind.Ct.App.1995) (citations omitted). "When the parties do not dispute the facts material to the claim, our task is to determine whether the trial court correctly applied the law to the undisputed facts." O'Neal v. Throop, 596 N.E.2d 984, 986 (Ind.Ct.App.1992), trans. denied.

To determine whether the law has been properly applied to the facts, we need only review the language of the 1873 deed between the Evanses and the Fort Wayne R.R. When reviewing a deed, "[t]he entire deed is to be regarded, and the parts thereof are to be construed together so that no part is rejected. The object of the construction is to ascertain the intent of the parties and it must be their intent that every part has some meaning, therefore, we favor a construction which reconciles the different parts, and reject the construction which leads to a contradiction." Enderle v. Sharman, 422 N.E.2d 686, 694-695 (Ind.Ct.App.1981). When both the language and intent of the parties are clear from the instrument itself, our only duty is to enforce the instrument as it is written. Id. at 695.

The Tazians claim that the granting clause was general or indefinite and that the trial court erred by not finding that the habendum clause of the 1873 deed limited the estate conveyed to solely an easement. Because we must view the deed as a whole and reconcile its various parts, we begin our analysis by discussing the granting clause. Id. The most significant words in the granting clause are "do grant and convey and warrant." (R. 71). In its conclusions of law, the trial court found that under the controlling statute 2 at that time, these words of grant indicated a grant of fee simple estate. The language "grant and convey and warrant," and the rest of the granting clause, mirrors the language of the controlling statute. Accordingly, the granting clause language conveyed a fee simple estate in the 1873 deed. We agree with the trial court's conclusion that the specific language of grant conveys a fee simple estate. The Tazians argue that, notwithstanding this language, the remaining language of the deed, specifically the habendum clause, reflects a conveyance of an easement.

Before addressing the habendum clause, we must not overlook other relevant language in the granting clause. The granting clause uses the phrase "strip of land" instead of "right of way" to describe the estate conveyed in the deed. (R. 71). "The general rule is that a conveyance to a railroad of a strip, piece, or parcel of land, without additional language as to the use or purpose to which the land is to be put or in other ways limiting the estate conveyed, is to be construed as passing an estate in fee, but reference to a right-of-way in such a conveyance generally leads to its construction as conveying only an easement." Brown v. Penn. Cent. Corp., 510 N.E.2d 641, 644 (Ind.1987) (emphasis added). The 1873 deed unambiguously describes the property as a "strip of land." Absent a showing of additional limiting language, the use of "strip of

Page 489

land" further supports the trial court's finding that the 1873 deed granted a fee simple estate to the Fort Wayne R.R.

The final element of discussion in the granting clause is the consideration paid to the Evanses. A sale of property for nominal consideration reflects an intent to create an easement. Richard S. Brunt Trust v. Plantz, 458 N.E.2d 251, 255 (Ind.Ct.App.1983). The Fort Wayne R.R. paid five hundred dollars for the strip of land, hardly nominal consideration in 1873. In finding the conveyance to be an easement, the Plantz court emphasized the fact that only nominal consideration was given. It cannot be said that the five hundred dollars paid by the Fort Wayne R.R. for the 4.24 acres was nominal consideration. This lack of nominal consideration also supports the trial court's finding that the 1873 deed did not convey an easement.

The Tazians claim that despite the formal words of grant, the use of "strip of land," and the lack of nominal consideration, the...

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3 cases
  • Tazian v. Cline, 02S03-9709-CV-512
    • United States
    • Indiana Supreme Court of Indiana
    • September 26, 1997
    ...decree quieting title. The Tazians appealed and a divided Court of Appeals "affirmed the trial court in its entirety." Tazian v. Cline, 673 N.E.2d 485 Page 97 The Tazians seek transfer, contending the trial court and Court of Appeals erred in construing the deed from Evans to the Fort Wayne......
  • Whitley County Teachers Ass'n v. Bauer, 92A03-9806-CV-251.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1999
    ...grounds, however, must have been properly designated by the movant and must be otherwise supported by the record. See Tazian v. Cline, 673 N.E.2d 485, 488 (Ind.Ct.App.1996), aff'd 686 N.E.2d 95 (Ind.1997). If the trial court has incorrectly applied the law to the undisputed facts, this cour......
  • Flock v. Snider, 31A04-9708-CV-358
    • United States
    • Indiana Court of Appeals of Indiana
    • August 13, 1998
    ...the grant or denial of summary judgment hinges on whether the trial court appropriately applied the law. In re Zohrab K. Tazian v. Cline, 673 N.E.2d 485, 488 Flock maintains that the trial court's decision granting partial summary judgment in favor of Snider was erroneous because Leora's af......

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