Yazoo & Mississippi Valley Raolroad Co. v. Lakeview Traction Co.

• Decision Date: 16 October 1911
• Docket Number: 15251
• Citation: 56 So. 393,100 Miss. 281
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. LAKEVIEW TRACTION CO
• Court: Mississippi Supreme Court

56 So. 393

100 Miss. 281

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. LAKEVIEW TRACTION CO

No. 15251

Supreme Court of Mississippi

October 16, 1911

APPEAL from the circuit court of DeSoto county, HON. W. A. ROANE Judge.

Suit in ejectment by the Lakeview Traction Company against the Yazoo & Mississippi Valley Railroad Company. From a judgment granting relief in part to the plaintiff, defendant appeals and plaintiff prosecutes a cross appeal.

The deed from Montana to the railroad company is as follows:

"This indenture, made and entered into this 7th day of February, A. D. 1884, by and between A. P. Montana and his wife, Lizzie C Montana, parties of the first part, and the New Orleans Baton Rouge, Vicksburg & Memphis Railroad Company, parties of the second part, witnesseth: That for and in consideration of the sum of one dollar in hand paid to the said first parties the receipt whereof is hereby acknowledged, and for the further consideration that the said second party agrees to locate a depot and build sections houses on certain lots of ground hereinafter described, the parties of the first part have bargained, granted, and conveyed, and do hereby grant, bargain, and convey, unto the said railroad company, party of the second part, a right of way one hundred feet wide through the place on Horn Lake lately purchased by parties of the first part from Mrs. Martha A. Griffin, and two lots or parcels of land in same tract more particularly described as follows, to-wit: In section 22, township 1, range 9 west, in De Soto county, state of Mississippi, the lot or parcel of land on the east side of the railroad hereby conveyed commences at the intersection of Montana's southern line and the line of said right of way, and runs 374 feet along said right of way to a stake; thence S. 77[degree] 20' E. 210 feet; thence South 12[degree] 40' W. 294 feet; thence along Montana's southern line to the beginning--containing 1.61 acres more or less. The lot or parcel of land on the west side of said railroad hereby conveyed commences at a stake where the said right of way crosses the north line of the Horn Lake public road, and runs at 75[degree] 30' west 157 1/2 feet; thence north 14[degree] 30' E. 210 feet; thence 75[degree] 30' west 157 1/2 feet; thence along said right of way to the beginning--containing three-fourths of an acre more or less. The said right of way to extend fifty feet on each side of the center of the said railroad as now built. To have and to hold unto the said party and assigns forever. And the said second party shall have the right to dig earth, quarry rock, cut timber, and do such other things on said right of way and lots as are necessary and convenient in constructing and operating its line of railroad thereon. And the said parties of the first part, their heirs, or legal representatives do hereby covenant to forever warrant and defend said title against all claims; but this conveyance is made upon express condition and agreement that, in case the second party or their assigns should at any time in the future remove the said depot or section houses, or both, off the land here described, then and in that case the same shall at once revert to the said parties of the first part, their heirs, and assigns. In witness whereof, we have hereunto set our hands and seals the day and year above written."

Affirmed and reversed.

Mayes and Longstreet, for appellant, filed an elaborate brief contending:

1st. That there has been no breach of condition by the railroad. Citing 139 F. 60; Jones on Law of Real Property in Conveyancing, page 678; 13 Cyc. 689.

2d. That even though the court does not sustain the above contention and holds that the depot and section houses should not only be located, but kept on the two parcels of ground, the east and west lots, we submit that there has been no breach, but on the contrary, a full performance of the condition imposed, citing 13 Cyc. 1042; Pittsburg Railway Co. v. Rose, 24 Oh. St. 219, 229; 3 Words and Phrases, page 2005; State v. R. R. Co., 18 L. R. A. 505; McGrath v. R. R. Co., 24 N.W. 854; Rabidon v. R. R. Co., 39 L. R. A. 405; Grosse v. R. R. Co., 65 N.W. 185; Magher v. R. R. Co., 45 N.Y. 514, 520; 3 Elliot, page 943; 33 Cyc. 178; Jefferson v. Barbour, 89 Ind. 375; 13 Cyc. 696; R. R. Co. v. Cohn, 15 L. R. A. (N. S.) 595; State v. R. R. Co., 86 Miss. 172; R. R. Co. v. Ragsdale, 54 Miss. 200; Miller v. Tunica County, 67 Miss. 582; 13 Cyc. 700.

3d. Appellee cannot take advantage of the alleged breach. Citing R. R. Co. v. Neighbor, 51 Miss. 45; 13 Cyc. ; Rannels v. Rose, 145 F. 296; Lewis v. Lewis, 92 Am. St. Rep. 240; Wadley Lbr. Co. v. Lott, 60 S.E. 836; Bonniwell v. Madison, 77 N.W. 530; Griffith v. Railway Co., 15 Ky. L. Rep. 271; 13 Cyc. 708; Gould v. Richards, 16 Gray 309; Gonger v. Duryce, 90 N.Y. 592; Granite Bldg. Assn. v. Green, 54 A. 792; Barrie v. Smith, 10 N.W. 168; Brown v. Wrightman, 90 P. 457.

Percy & Hughes, for appellee and cross-appellant, filed an extended brief, citing:

60 L. R. A. 751; Bovier v. Baltimore & New York Railroad Co. (N. J.), reported in 60 L. R. A. 751; Section 1187 of the Code of 1880, section 2433 of the Code of 1892, and section 2762 of the Code of 1906; Wright v. Hardy, 76 Miss. 524; Hamel v. Minneapolis, St. P. & S. S. M. Ry. Company, decided by the supreme court of Minnesota in 1906, reported in 107 N.W. 139, and in 97 Minn. Rep. 334; Lyman v. Suburban Railroad Company, 190 Ill. 320, s. c. 52 L. R. A. 645; St. Louis, Iron Mountain & Southern Railroad v. Berry, 86 Ark. 309; Arkansas Central Railroad Company v. Smith, 71 Ark. 189; Howell v. Railroad Company, 37 Hun (N. Y.) 381; Railroad v. Hood, 66 Ind. 580; Davenport Railroad v. Rogers, 39 Ia. 298.

OPINION

MCLEAN, J

This is an action of ejectment, brought by appellee for the recovery of two lots or parcels of land, and also for rents. The plaintiff recovered judgment in the court below for one of the lots, but rents were denied. The defendant appeals, and the plaintiff in the court below prosecutes a cross-appeal, and assigns as error, first, that it was entitled to recover both lots sued for, and also the rental value of the property; while the contention of the appellant is that the plaintiff should not have recovered either lot. There is no question as to the title, but the whole question hinges on the construction of the deed from one Montana to defendant in the court below and its predecessors. This conveyance was executed by Montana and wife on the 7th day of February, 1884, is found on pages 15, 16, and 17 of the record, and the reporter will copy this deed in full in reporting this case.

In August, 1882, Mrs. Martha A. Griffin conveyed to the railroad company an easement in this strip of land one hundred feet wide as and for a right of way; Providence Bassit et al. conveyed an easement in this strip of land of same width, for the same purpose, to the railroad company on September 6, 1882; and Providence Bassit et al. conveyed certain lands to Montana, February 1, 1884. On April 13, 1883, Martha A. Griffin conveyed to Montana the lands through which the right of way of the railroad company runs, and it will be observed that the deed from Montana to the railroad company recites that the grantor conveys a strip of land one hundred feet wide through the place on Horn Lake, lately purchased by Montana from Martha A. Griffin. On March 27, 1888, Montana and wife conveyed to J. J. Sheppard the lands which include the above-named right of way and the two lots or parcels of land sued for; but the deed contains this clause: "But it is expressly agreed and understood between the parties hereby that this conveyance is not intended to embrace or convey the right of way and depot and section house grounds heretofore conveyed to the Mississippi Valley or the L., N. O. & T. Railway." In February, 1896, Sheppard conveyed this land to R. L. Boone and Ben Boone. In March, 1896, Montana quitclaimed to J. J. Sheppard all of the lands described in his deed of March 27, 1888, without reservation or exception. In September, 1897, R. L. Boone devised his one-half interest in the land to Ben Boone, and on June 1, 1906, Ben Boone, by deed with general covenants of warranty, conveyed these lands to the Lakeview Traction Company, the plaintiff and the court below; but this conveyance contains the following provision: "But there is excepted from this conveyance the rights which have been granted to the Yazoo & Mississippi Railroad Company and its predecessors, by the deeds from Providence Bassit and wife to the Vicksburg & Memphis Railroad Company, the deeds from Mrs. Martha A. Griffin to Memphis & Vicksburg Railroad Company, and in the deed from A. P. Montana and wife to the New Orleans, Baton Rouge, Vicksburg & Memphis Railroad Company, and in the deed from Ben Boone to the Yazoo & Mississippi Railroad Company."

It is under the Boone deed of June 1, 1906, that plaintiff claims the property. The railroad was constructed between the years 1882 and 1884. After the execution of the Griffin deed to the railroad company, and in one of the conveyances executed about 1884, the road is described as having been constructed or built. Shortly after the execution of the deed by Montana to the railroad company in 1884, the railroad company constructed a freight and passenger depot and water-closet and pumping station, the major portion of the depot being upon the right of way, while the smaller part was on one of the lots described in this conveyance. This lot we will designate as the "west lot, " and on the other lot, which we will call the "east lot," section houses were built. The east lot is on the east side of the railroad right of way, and the west lot is on the west side of the right of way, not directly opposite each...