The Roxana Petroleum Corporation v. Jarvis

• Decision Date: 12 January 1929
• Docket Number: 28,431
• Parties: THE ROXANA PETROLEUM CORPORATION, Appellant, v. S. D. JARVIS et al., Appellees
• Court: Kansas Supreme Court

273 P. 661

127 Kan. 365

THE ROXANA PETROLEUM CORPORATION, Appellant, v. S. D. JARVIS et al., Appellees

No. 28,431

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Sumner district court, LAFAYETTE H. FINNEY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEEDS--Construction--Interest in Railroad Right of Way. Deeds of land abutting on a railroad right-of-way tract interpreted and held to convey the interest of the grantors in the right-of-way tract.

2. SAME--Construction--"Excepting Railroad Right of Way." Deeds of a quarter section of land in which the numerical descriptions were followed by the expressions "less railroad right of way" and "excepting railroad right of way" of a named railroad, interpreted and held to convey the interest of the grantors in the right-of-way tract.

W. T. McBride, John A. Potucek, both of Wellington, Kent Koerner, William F. Fahey, Truman Post Young, William K. Koerner and M. R. Stahl, all of St. Louis, Mo., for the appellant.

H. W. Hart, Glenn Porter, Enos E. Hook, all of Wichita, Z. I. J. Holt and Fred W. Kopplin, both of Tulsa, Okla., for cross-appellants Wilton C. Emrich, Edna P. Emrich and Mead Brothers.

Robert C. Foulston, George Siefkin, Lester L. Morris, all of Wichita, Albert Faulconer, Kirk Dale, C. L. Swarts, all of Arkansas City, Earl Taggart and John Bradley, both of Wellington, for the appellees.

Burch J. Harvey, J., dissenting in part.

OPINION

BURCH, J.:

The action was one by the holder of an oil lease to enjoin encroachment on its privileges and to quiet title to its leasehold interest against claimants under rival leases. The land involved is a railroad right of way. The fundamental question was whether deeds in plaintiff's chain of title were effective to convey what for brevity and convenience is usually spoken of as the fee of the land servient to the right of way. Plaintiff was denied relief, and appeals.

[SEE MAP IN ORIGINAL]

The interests of all parties were derived from Leonard K. Scroggin. In 1911 Scroggin deeded to the Wichita Midland Valley Railroad Company a strip of land extending through lands which he owned in the city of Oxford, and in the southeast quarter of section 14 adjoining the city on the south. The deed recited it conveyed the strip for right-of-way purposes. The strip in its relation to numbered blocks and outlots in the city of Oxford, and to the southeast quarter of section 14, is disclosed on the accompanying map.

Before the deed was executed streets and alleys on each side of the granted right of way had been vacated from Cedar street southward. After the deed was executed, what were formerly outlots 24 and 25 and blocks 89 and 90, were designated as tract 5 in the northeast quarter of section 14 in which the city of Oxford is situated.

Scroggin died intestate in 1916, leaving a widow, children and grandchildren as his heirs. He left more than 35,000 acres of land, situated in the states of Illinois, Kansas, Minnesota, Mississippi, Nebraska, and the province of Saskatchewan. The lands were valued at more than $ 1,700,000. Voluntary partition was made by exchange of deeds among the heirs. Speaking generally, for purpose of the narrative, blocks 89 and 90, outlots 22, 23, 24 and 25, and the southeast quarter of section 14, except a tract of 4.56 acres in the northeast corner which Scroggin had disposed of, were conveyed to the widow, Rhoda A. Scroggin, by her coheirs. Subsequently Rhoda A. Scroggin deeded to her daughter, Edna P. Emrich, who leased to the Roxanna Petroleum Corporation. Conceiving that the fee underlying the right of way had not been conveyed to Rhoda A. Scroggin, the heirs of Scroggin other than his widow and Edna P. Emrich, representing 191/208's of the total underlying interest, made a lease to S.D. Jarvis.

The deeds to Rhoda A. Scroggin were by two groups of heirs, and each group made two deeds. One deed of each group related to the city tracts, and the other to the quarter section. The deed of Alfred C. Scroggin and his group, relating to the quarter section, recited a consideration of one dollar, division of real estate held in common, and other good and valuable considerations. The deed conveyed lands in Cloud, Sumner and Cowley counties, contained full covenants of warranty, and contained the following recital:

"The grantors [naming them] and the grantee, Rhoda A. Scroggin, being the surviving widow and sole and only heirs at law of Leonard K. Scroggin, deceased.

"This deed is one of a series of deeds made to divide a part of the real estate of which the said Leonard K. Scroggin, late of the county of Logan and state of Illinois, died seized, intestate."

The description with which we are concerned follows:

"Also, the following-described real estate situated in the county of Sumner and state of Kansas, to wit: . . . The southeast quarter of section 14, excepting 4.56 acres out of the northeast corner thereof, in township 32, south of range 2 east, less railroad right of way; . . ."

The deed was not signed by one of the named grantors, Angeline Rothwell. Her death occasioned execution of deeds by her heirs. Their deed of the quarter section was identical in statement of consideration, description of land, and warranty, with the deed of the Alfred C. Scroggin group, and contained the following:

"The grantors, Murtie Gassaway, Thomas L. Rothwell and John M. Rothwell, are the sole and only heirs at law and only devisees under the last will and testament of Angeline Rothwell, deceased, who was an heir at law of Leonard K. Scroggin, deceased.

"This deed is one of a series of deeds made to divide a part of the real estate of which the said Leonard K. Scroggin, late of the county of Logan and state of Illinois, died seized, intestate, the intention herein being to convey the interest acquired by the said Angeline Rothwell during her lifetime as heir at law of the said Leonard K. Scroggin."

The deed by the Alfred C. Scroggin group of the city lots was identical in general form with their deed of the quarter section, and the description read as follows:

"The west half of outlot 22, and all of outlot 23 and what was formerly outlot 24 and 25, and the west half of block 89 and 90 in the town of Oxford, west division, in Sumner county, Kanass, less railroad right of way over and across the same (also designated as tract 5 in the northeast quarter of section 14), . . ."

The deed by the Rothwell heirs of the city tracts was identical in form with their deed of the quarter section, and the description was the same as the description in the Alfred C. Scroggin deed of the city tracts. The expression in the deeds of the city tracts, "less railroad right of way over and across the same," referred to the right of way of the Atchison, Topeka & Santa Fe Railway Company, and not to the Midland Valley right of way.

The Scroggin right-of-way deed was expressed to be "for a right of way over and across," and it is not debatable that only an interest, which for brevity and convenience is usually called an easement, was conveyed. Therefore, the question relating to the city tracts is whether the description, "the west half of outlot 22 . . . and the west half of blocks 89 and 90," conveyed to Rhoda A. Scroggin the fee of the land subservient to the Midland right of way adjoining the tracts on the east.

If the tracts had abutted on a highway laid out over the east half of the tracts while Scroggin owned them, the fee would have been conveyed by the deed of his heirs. That question was determined in the case of Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 P. 913. In the opinion in that case the following declaration of law was made:

"The result is, the rule adopted in this state is that intent to include the highway is inferred as a matter of law, unless intent to exclude is plainly expressed." (p. 206.)

The reasons for the declaration were stated in the opinion. The question reduces, therefore, first, to whether the highway rule applies generally to railroad rights of way, and if so, second, whether the general rule applies to this right of way.

The court holds the highway rule applies to railroad rights of way. The reasons for the rule are the same in one case as in the other:

"The easement which a railroad acquires in its right of way is like that of a highway, in that it is for the use of the public. [Citations.] It is one which has attached to it the incidents of exclusive occupation and enjoyment for the public use in a peculiar degree. [Citations.] It possesses the feature of prospective permanence no less than does that of a highway. All of the considerations which have led courts generally to recognize a presumed intent to have a bound upon a highway, stream, or canal, carry to the middle line, appear to be present in the case of a bound upon a railroad right of way; . . ." (Center Bridge Co. v. Wheeler & Howes Co., 86 Conn. 585, 589, 86 A. 11.)

The specific question was considered by the circuit court of appeals for the 8th circuit, in a case involving the same right of way in its relation to blocks 87 and 88 lying immediately north of the Scroggin blocks 89 and 90. The conclusion of the court is expressed in the headnote of the report of the decision:

"When owner conveys a tract of land abutting on a railroad right-of-way tract, in which such grantor owns the servient estate and the railroad the dominant estate for right-of-way purposes, his conveyance passes to his grantee such servient estate, unless the intention not to do so be clearly indicated.'' (Roxana Petroleum Corportation v. Sutter, 28 F.2d 159.)

The decision was rendered on July 28, 1928. The decision was supported by decisions in...