Uhl v. Ohio River R.R. Co.

• Decision Date: 08 March 1902
• Citation: 51 W.Va. 106
• Parties: Uhl v. Ohio River Railroad Company.
• Court: West Virginia Supreme Court

51 W.Va. 106

Uhl

v.Ohio River Railroad Company.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1901.

Decided March 8, 1902.

1. Written Evidence Oral Declarations not Received.

If a writing is not ambiguous, it must speak for tself by its words, without aid of any oral evidence; but if it is ambiguous, oral evidence is admissible to show the occasion of the contract, the situation of the parties, the circumstances surrounding them, their subsequent acts in executing the contract, in order to show their intention in making it; but evidence can- not be received to show their declarations, conversations or interlocutions before or at the execution of the contract, (pp. 109, 110).

2. Right of "Way Passes Easement Only.

The words "right of way" in a grant to a railroad company, taken alone, mean an easement only, and do not pass the very land itself, (p. 112).

3. Railroad Right of Way Buildings Easement.

An agreement grants to a railroad company "the full and free right of way of the width of 50 feet * * * in, upon and through the lands of the said Uhl * * *. which right of way is hereby granted and conveyed for the construction, building and use of the road of said company." It also says, "And the said Uhl also hereby covenants and agrees to execute and acknowledge in due form of law, when required by said company, a deed conveying to said company in fee simple the land hereinbefore described." Such agreement conveys only a right of way, an easement in fee simple, not the land itself and the oil in it. (p. 113).

4. Easement Conveyance Covenant Estate.

The covenant in this agreement to execute a deed conveying the land in fee simple is a dependent covenant, and the estate or interest conveyed by the agreement being limited to the right of way, which is an incorporeal hereditament, the operation of said covenant is necessarily restricted and limited by the granting clause, and does not require the conveyance of a greater estate, (p. 114).

5. Conveyance Covenant Deed.

The covenant in a deed tor further assurance means a covenant to execute a deed for further and better assurance of the estate passed in the granting clause, and does not enlarge that estate, (p. 115).

6. Deeds Construction Intention.

In the construction of deeds, as well as wills, the rule nowadays is that the intention of the grantor controls, and technical words of legal import must yield to plain intent, and the whole instrument, not merely and separately disjointed parts, is to be considered, (p. 116).

Appeal from Circuit Court, Wood County.

Action by C. D. Uhl against the Ohio River Railroad Company and others. From an order refusing to dissolve an injunction, defendant company appeals.

Affirmed.

H. P. Camden and W. P. Hubbard, for appellant.

McCluer & McCluer and C. D. Forrer, for appellee. Br anno n, Jijdoe:

An agreement was made between Charles D. Uhl and The Wheeling, Parkersburg & Charleston Railroad Company, the name of which was changed to The Ohio River Railroad Company, which agreement reads as follows: "This agreement made this 13th day of April, 1882, between Charles T). Uhl, of the county of Wood, West Virginia, of the first part, and The Wheeling, Parkersburg & Charleston Railway Company, a corporation under the laws of West Virginia, of the second part, Witnesseth: That whereas the said railway company proposes to construct and build its road through the said county of Wood, now in consideration of the advantages which said road will be to the said party of the first part, and to his property and of the premises, and the further consideration that the said railroad company will make a good roadway or crossing where the private road of said Uhl crosses said railroad, and also put in or build cattle stops wherever said railroad comes from one field to another, the said Charles D. Uhl does hereby grant and convey unto the said Wheeling, Parkersburg and Charleston Railway Company the full and free right of way of the width of fifty feet with necessary grounds for cuts and fills for the road of said company in, upon and through the lands of the said Uhl, upon which he now resides, described substantially as follows, to-wit: Being the line surveyed by engineer Wharton * * * which right of way is hereby granted and conveyed for the construction, building and use of the road of said company. * * * And the said Uhl also hereby covenants and agrees to execute and acknowledge in due form of law when required by said company, a deed conveying to said company in fee simple the land hereinbefore described. It is also agreed that said Charles D. Uhl hereby also grants and conveys to said railroad company the right of way, upon the same conditions and with the same restrictions, through the tract of land containing 28 or 30 acres above the one upon which he resides, and adjoining the lands of John R. Uhl and John F. Creel, it being understood that the same conditions applies to this right of way as to the one on the land upon which he now resides." Later the Ohio River Railroad Company made to Samuel Logan a lease of the said fifty foot strip of land for the purpose of boring for oil, and Logan erected a derrick for that purpose, when Uhl obtained an injunction in the circuit court of Wood County against Logan's operations, and the judge of that court, having refused to dissolve the injunction, the railroad company has appealed the case to this Court.

The railroad company contends that the agreement confers upon it a right of absolute fee simple estate in the very corpus or body of the soil of the fifty foot strip, the very land itself, carrying with it all minerals, and consequently the right to extract oil from it, just as Uhl may do on his remaining land, and the company demanded of him a conveyance carrying the very land itself. On the other hand, Uhl contends that he conferred on the company only an easement, a right to construct and operate upon the land a railroad, and he denies the right to the company, or to any one claiming under its right, to carry on upon the land the business of the production of oil, and thereby damage his remaining land irreparably by draining from it the oil in it. This controversy thus calls for the construction of said agreement. If a written contract is not ambiguous, it speaks for itself, and courts must carry its written words into effect; but if it is ambiguous, we may consider the circumstances surrounding the parties at the time they executed it, their situation, the nature of the contract which they were making as to its purpose, in order to enable us to say what that situation or occasion called for, what was their intention, so that we may glean the intention of the parties, as that actual intention is the criterion, the key to unlock the meaning of the contract. Knowlton v. Campbell 37 S. E. 581, 48 W. Va 294; 1 Beach, Mod. Law of Contracts, 702; Nash v. Towne, 5 Wall. 687. This agreement is not, in a legal point of view, ambiguous. Its very face says that the motive and purpose inspiring it, the occasion for its execution, was the obtaining by the company of right of passage for a railroad through Uhl's farm, and to accomplish this purpose a "right of way" was granted "in, upon and through lands of said Uhl." This is the: core of the writing, its essence, its grant, and it speaks a purpose to concede simply a right of way, an easement, a passage for the road. It does not imply a grant of the very land itself, but only a right of way, "in, upon and through the lands" of Uhl. Those prepositions "in," "upon," "through," speak this intent to concede mere passage. If the intent were to grant the land to all intents, why did not the paper do so then by the use of the word "land" in connection with the word "grant"? And treating it as an executory agreement, why did it not use the word "land" in its essential part? Why did it use the words "right of way"? Take the words, "right of way," prima facie they legally imply only an casement. To give them other meaning, there must be other words so showing. True, when we speak incidentally of "right of way," we may mean the land on which the right of way exists; but in a grant to a railroad it means only the easement. As this is strongly contested by able counsel in the elaborate argument which has taken place in this hotly contested case, I have for the second time examined this question, and I am confirmed in such opinion. "The words 'right of way' in a grant describe the tenure, not the land granted." Atlantic & Pacific R. Co. v. Lesure, 37 Am. & Eng. Railroad Cas. 368. A deed conveyed to a railroad company a "certain piece of land

* * * described as follows, to-wit: The right of way for a railroad running * * * a strip of land forty feet wide and nine hundred and fifty-two feet in length," with full covenant of warranty, and it was held that the deed conveyed an easement, not a fee in the land. Jones v. Van Bochove, 103 Mich. 98, 1 Am. & Eng. Railroad Cas. Annotated 664." fA right of way, ' in its legaly and generally accepted meaning in reference to a railway, is a mere easement in the land of others obtained by condemnation or purchase." Williams v. W. N. Ry. Co., 50 Wis. 71, 5 Am. & Eng. Railroad Cas. 290; Calcasieu v. Harris, 4 3 Am. & Eng. Railroad Cas., Annotated, 570. In the first case cited the court said: "It would be using the term in an usual sence by applying it to an absolute purchase of the fee simple of lands to be used for railroad purposes." A railroad company owning land conveyed it "reserving and excepting a strip of land

* * * to be used for a right of way or other railroad purposes." Held, that the deed passed the whole fee to the purchaser, and that the company reserved only a right of way. Biles v. Tacoma R. Co., 5 Wash. 509. A deed said "do grant and convey to said R. R. Co. the following piece or tract of land

* * * for the construction of said road; to have and to hold to said company forever," and it was held to convey "a...