46 Neb. 272 | Neb. | 1895
An opinion was filed in this case which was reported in 34 Neb., 284. A rehearing was afterward granted, and upon reargument it is now reached for further consideration. The deed of Maggie C. .Blakely to the Republican Valley Railroad Company conveyed a certain strip of land one hundred feet wide across certain lands described by government subdivisions, “to have and to hold the same unto the said railroad company, its successors and assigns.” In connection with the language just quoted the controversy in the case hinges on the words following the names and description of the grantors and the acknowledgment of the receipt of $900 consideration, which words are as follows: “do hereby grant, bargain, sell, and convey unto the Republican Valley Railroad Company, its successors and assigns, for right of way and for operating its railroad only,” etc. The Chicago, Burlington & Quincy Railroad Company afterwards became the- successor of the grantee above
The defendant in error contends that the words “for the right of way and operating its railroad only,” following the granting clause, do not create a condition subsequent, and that, therefore, this action cannot be maintained. In Chapin v. School District, 35 N. H., 445, the term above-used is thus discussed: “A subsequent condition is one which operates upon an estate already created and vested and renders it liable to be defeated. Thus, if a man grant-an estate in fee-simple, reserving to himself and his heirs-a certain rent, and that if such rent be not paid at the times-limited it shall be lawful for him and his heirs to re-enter- and avoid the estate; in such case the grantee and his heirs-have an estate upon condition subsequent; which is defeasible if the condition be not strictly performed. (Litt., sec. 325; 2 Black. Com., 154, 4 Kent’s Com., 125.)” The deed of the plaintiffs in error contained no condition of the-nature of that above indicated and illustrated, hence there-was no condition subsequent.
Thus far we have agreed with the defendant in its contention that the deed of Maggie C. Blakely and husband contained no condition subsequent. It is assumed in argument that this much being established, the conclusion-must of necessity follow that plaintiff could not insist that-by the abandonment of- a part <6f such right of way, such-part would revert to Mrs. Blakely. The conveyance by
It has already been shown that the deed under consideration was one that contained no condition subsequent.
The cases above cited with reference to cok /eyances in terms limited proceed upon- the principle that, as each grant was only of a right of user in a certain manner, such grant in effect was but an accordingly defined license. Between this class of cases and that relied upon by the defendant there is a marked difference, for in the latter the conveyance was in each instance of the fee, As was said in Coburn v. Coxeter, 51 N. H., 158: “A conveyance of a right of way over that parcel of land would clearly pass only an easement, leaving the fee in the grantor; but here the land itself, in the broadest terms, is granted, and the restriction upon the use is entirely consistent with the passing of the fee.” In the deed to the Republican Yalley Railroad Company the grant of the strip of land was “for right of way and for operating its railroad only.” These words were words of limitation of the rights of the grantee with respect to the strip conveyed, to a mere easement. In Henderson v. Hunter, 59 Pa. St., 335, there was discussed the effect of a deed in which was contained a limitation, which was “for the erection of a house or place of worship for the use of the members of the Methodist Episcopal church of the United States of America (so long as they use it for that purpose, and no longer, and then to return back to the original owner), according to the rules and ■discipline,” etc. Agnew, J.', delivering the opinion of the court, said: “The equitable estate is in the members of the •church so long as they use the bouse as a place of worship in the manner prescribed, and no longer. This is the boundary set to their interest, and when this limit is transcended the estate expires by its own limitation and returns to its author. The words thus used have not the slightest cast of a mere condition. No estate for any fixed or de
The case we have under consideration differs from that of Henderson v. Hunter, supra, in one respect, which should be noted, and that is, that the grant by the Blakelys was a mere easement, the legal title never having passed. There was therefore no question of the reversion of an estate involved. If the Republican Yalley Railroad Company or its successor parted with the right to the use of forty-two and one-half feet in width of the hundred feet, there existed no right, title, or interest outstanding incompatible with the complete title in Mrs. Blakely and the right of posséssion
It is insisted by the defendant in argument that the plaintiff is now estopped to disturb defendant’s possession of the forty-two and one-half foot strip and the line of road thereon constructed. There was presented no such claim by the pleadings, and it is clear by the proof above stated that there was no ground for estoppel shown. It may have been that there was acquiescence by silence or otherwise on the part of Mrs. Blakely in the construction of defendant’s road as it was constructed, but this, if a fact, was neither pleaded nor proved. On the other hand it is perfectly consistent with the facts stipulated above, that plaintiff may have supposed that the line being built upon the forty-two and one-half foot strip was in the course of construction by the Republican Yalley Railroad Company or by the Chicago, Burlington & Quincy Railroad Company. Under these circumstances we cannot say whether or not the estoppel in fact should be recognized. Certainly, in the present condition of the pleadings and evidence, this cannot be done. One thing is clear, however, and that is that over this strip forty-two and one-half feet in width there has been constructed and is now in operation a line of railroad in which the public at large is interested. As against the public, plaintiff must be deemed to have waived her right to insist that this strip shall be restored to her as though no railroad had been built or was in operation over it. As was said under somewhat similar circumstances in Omaha & R. V. R. Co. v. Brown, 14 Neb., 170: “But its [the railroad company’s] first and highest duty was to keep open its line for the transportation of persons, prop
Reversed and remanded.