Texas Elec. Ry. Co. v. Neale

• Citation: 151 Tex. 526,252 S.W.2d 451
• Decision Date: 22 October 1952
• Docket Number: No. A-3494,A-3494
• Parties: TEXAS ELECTRIC RY. CO. et al. v. NEALE et al.
• Court: Supreme Court of Texas

Page 451

252 S.W.2d 451

151 Tex. 526

TEXAS ELECTRIC RY. CO. et al. v. NEALE et al.

No. A-3494.

Supreme Court of Texas.

Oct. 22, 1952.

Rehearing Denied Nov. 26, 1952.

Burford, Ryburn, Hincks & Ford, Sam P. Burford and Clarence A. Guittard, Dallas, for petitioner Texas Electric Ry. Co.

O'Dowd & O'Dowd, Waco, for petitioner Tindell.

Clark & Seley, Waco, for petitioners Shannon and others.

Sleeper, Boynton, Darden & Burleson, Street & Street, Waco, for respondents.

SMEDLEY, Justice.

Respondents William F. Neale and E. C. Street sued petitioners Texas Electric Railway Company and others for the title and possession of a tract or strip of land containing 6.60 acres, which was acquired by the Southern Taction Company by conveyance in 1912 and was used by that company and its successor, respondent Texas Electric Railway Company, as part of the right of way of an electric interurban railway operated by the two companies until December 31, 1948, when operation was discontinued and abandoned.

The trial court's judgment for respondents was affirmed by the Court of Civil Appeals, which held that the deed to the Southern Traction Company conveyed only an easement and not the estate in fee to the land described. 244 S.W.2d 329.

The decision of the case turns on the construction of the deed, which is as follows, except that we have numbered the paragraphs of the deed for convenient referrence, and have omitted the signatures and the certificate of acknowledgment:

'(1) Know All Men By These Presents: That We Geo. S. McGhee, Mrs. Dora Behrens and Abe Gross, for and in consideration of One Dollar to me in hand paid and the benefits which will accrue to my other property by reason of the construction of the Interurban Railway hereinafter mentioned, do by these presents grant, sell and convey unto Chas. H. Allyn, W. D. Lacy, J. K. Parr, S. M. Dunlap, J. Baldridge, J. Houston Miller and W. R. McDaniel, Trustees of the Southern Traction Company, their successors and assigns, the following described piece or parcel of land, to-wit:

'(2) Beginning at a point on the dividing line between J. O. Brittian and J. J. Dean said point being about 508 feet from J. O. Brittian's north east corner; thence about 590 feet in a southerly direction; thence about 10 feet in a westerly direction; thence about 2564 feet in a southerly direction to J. J. Dean's south line, same being D. McCullum's north line; Thence about 60 feet along said line in a southwesterly direction to J. J. Dean's west line; Thence about 60 feet along said line in a northwesterly direction; Thence about 2564 feet in a northerly direction; thence about 10 feet in a westerly direction; thence about 500 feet in a northerly direction to J. J. Dean's north lien; thence about 140 feet with said line in a northeasterly direction to place of beginning, containing 6 06/100 acres, more or less, being a part of the Tomas de la Vega Eleven League Grant.

'(3) It being the intention of this deed to convey a strip of land 100 feet wide for 550 feet, and 80 feet wide for the balance of the way through the property of J J Dean in the Tomas de la Vega Eleven League Grant.

'(4) It is further understood herein that the above strip of land is conveyed upon the further condition and consideration that said Southern Traction Company will, as soon as it begins operation, establish a stop on the right of way hereinabove conveyed about the center thereof for the purpose of letting passengers on and off its cars which stop shall be as near a street crossing as possible and said Co., shall forever keep up and maintain said stop when so established, and said company further agrees to allow to be opened and dedicated as streets across said right of way such streets as may be opened by grantors herein, it being understood that the property through which this right of way is given is to be opened up as an addition to the city of Waco,

'(5) To have and to hold the same unto the said Trustees, their successors and assigns, forever free of all encumbrances, including telephone, telegraph and transmission lines

'(6) However, this deed is made as a right-of-way deed for an Interurban Railway from Dallas to Waco, Texas, and in case said railway shall not be constructed over said land then this conveyance shall be of no effect.

'Witness our hands this 4th day of Sept. A. D. 1912.'

The one, or the principal, question to be determined is: Did the deed convey to the grantee merely an easement, that is, the right to use the land for a right of way, or did it convey the title in fee? This question has been before the courts of this state many times. There are two lines of authorities, the one represented by Right of Way Oil Co. v. Gladys City Oil, etc., Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268, and the other by Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453, and Brightwell v. International-Great Northern R. Co., 121 Tex. 338, 49 S.W.2d 437, 84 A.L.R. 265. Generally stated, the rules announced by these decisions are: First, that, as in the Right of Way Oil Company case, (106 Tex. 94, 157 S.W. 739) a deed which by the terms of the granting clause grants, sells and conveys to the grantee a 'right of way' in or over a tract of land conveys only an easement; and second, that, as in the Calcasieu Lumber Company case and in the Brightwell case, a deed which in the granting clause grants, sells and conveys a tract or strip of land conveys the title in fee, even though in a subsequent clause or paragraph of the deed the land conveyed is referred to as a right of way.

Looking to the granting clause of the deed, paragraph No. 1, we find that it grants, sells and conveys to the grantee 'the following described piece or parcel of land'. (244 S.W.2d 331.) The quoted words are followed in the deed by a description of the 6.06 acres by metes and bounds and then by the recital, paragraph 3, that it is the intention of the deed 'to convey a strip of land 100 feet wide for 550 feet, and 80 feet wide for the balance of the way through the property of J. J. Dean' in a named survey. The habendum clause, paragraph No. 5, is 'To have and to hold the same unto the said Trustees, (of the Southern Traction Company) their successors and assigns, forever free of all encumbrances, including telephone, telegraph and transmission lines'. These parts of the deed evidence the intention on the part of the grantor to convey the title to the tract or strip of land, and the Court of Civil Appeals agrees that they do. That Court, however, found in paragraphs numbered 4 and 6 expressions which in its opinion disclose an intention 'that the instrument as a whole should evidence a conveyance of right-of-way as distinguished from land'. And it then expressed the conclusion that if the language employed in paragraphs numbered 4 and 6 did not clearly express that intention, they made the meaning of the instrument uncertain and ambiguous as to the nature of the estate conveyed so that extrinsic evidence was admissible and could be considered as an aid in ascertaining the true intention of the parties.

Respondents, relying on the recitals in the fourth and sixth paragraphs of the deed, as did the Court of Civil Appeals, insist that the deed conveys only an easement. They especially stress the statement in the sixth paragraph that 'this deed is made as a right-of-way deed' and construe that statement to mean or to say that 'a right of way is conveyed', that is, an easement merely, and they give that statement controlling effect over the granting clause; which conveys a piece or parcel of land. In this way respondents would bring the case under the rule of Right of Way Oil Co. v. Gladys City Oil, etc., Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A., N.S., 268.

It is our opinion, after careful consideration of the deed and the decisions, that the case is ruled by Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453, and Brightwell v. International-Great Northern R. Co., 121 Tex. 338, 49 S.W.2d 437, 84 A.L.R. 265, rather than by the Right of Way Oil Company case. In the case last mentioned the granting clause of the deed granted and conveyed 'the right of way, two hundred feet in width, over and upon the above-described tract of land', whereas the granting clause in the deed here under construction grants, sells and conveys to the grantee 'the following described piece or parcel of land'. It does not purport to convey merely a right of way or merely an easement. There do appear in the deed words which show the purpose for which the grant is made, but those words do not undertake to reduce or debase what has been granted from a fee title to a mere easement.

The fourth paragraph provides that the grantee will as soon as it begins operation 'establish a stop on the right of way hereinabove conveyed' at a designated place, and will forever maintain the stop, and that the grantee will allow streets to be opened and dedicated 'across said right of way'. These provisions show that the property is to be used as a right of way. The grantee is obligated to 'establish a stop on the right of way hereinabove conveyed'. The words 'right of way' here used clearly refer to the piece or parcel of land that is conveyed for a right of way. The stop is to be estalished on the tract or parcel of land. It could not be established on an intangible right, that is, an easement. The same is true of the obligation to allow streets to be opened 'across said right of way'. 'The term 'right of way' has a two-fold signification. It sometimes is used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their road-bed.' Joy v. City of St. Louis, 138 U.S. 1, 11 S.Ct. 243, 256, 34 L.Ed. 843, 857; see also New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407, 411; Johnson v. Valdosta, M. & W. R. Co., 169 Ga....