54 S.E.2d 132 | Ga. | 1949
The instrument under which the defendant claimed title conveyed a fee simple estate, and not a mere easement for railroad purposes, and the trial court erred in overruling the general demurrer to the petition.
"State of Georgia, Jackson County: In consideration of the benefit and advantages to me accruing by the construction of the Gainesville, Jefferson Southern Railroad, as well as the receipt of ten dollars, to me paid, I have this day bargained and sold, and do hereby transfer and convey unto the Gainesville, Jefferson Southern Railroad Company, and its successors and assigns, all the land contained within one hundred feet in width on each side of its track, or roadbed (measuring from the center), of any portion of the lot of land hereinafter described through which said railroad may be constructed. The land hereby conveyed being that tract or parcel of land in said county and State, land on which I live, and any other land through which it may run belonging to me, bounded by lands of Z. B. Betts, W. E. Hill, W. J. Wright, John B. Betts, and others. To have and to hold said tract or parcel of land to the said railroad company, for railroad purposes, forever in fee simple. Witness my hand and seal, this 25th day of May, 1881. Signed, sealed and delivered [by] W. H. Bush (L. S.) in the presence of H. D. Jackson [and] N. J. Kelly. Georgia, Jackson County: Before me, J. D. Stanton, Notary Public, in and for the county aforesaid personally came and appeared N. J. Kelly, who being duly sworn deposeth and saith that the within named W. H. Bush executed and delivered the foregoing deed for the purposes therein mentioned in the presence of H. D. Jackson and this deponent who both subscribed the same as witnesses on the day of its date. [Signed] N. J. Kelly [and] Sworn and subscribed before me this 20th day of March A. D., 1890. [Signed] J. D. Stanton, N. P."
"Georgia, Jackson County: For and in consideration of ten dollars to me in hand paid, as well as in consideration of ten benefit to me arising from the location of a depot on my land at Jug Tavern, I hereby grant, bargain, sell and convey unto the Gainesville, Jefferson and Southern Railroad Company, and its successors and assigns a right of way of one hundred feet on each side of the center of its track through all the lands owned by me in the counties of Jackson and Walton in the State of Georgia, and I will and my heirs, executors and administrators shall the said bargained premises to the said railroad company, its successors *583 and assigns, forever warrant and defend against the claim of all persons whatever by virtue of these presents. In witness whereof, I have hereunto set my hand and seal on this the 17th day of November, 1884. [Signed] W. H. Bush (L. S.) Signed, sealed and delivered in the presence of: Lute L. Saunders [and] Alexander A. Hill, J. P. [and] Recorded November 24th, 1884, J. L. Williamson, C. S.C., Book U, Page 420."
The plaintiffs alleged that Mr. Bush, by said instruments, did not convey a fee-simple title to the land, but merely granted the railroad company an easement for a right of way for railroad purposes, and that under authority of an order of the Interstate Commerce Commission entered May 7, 1947, the Gainesville Midland Railroad Company, successor in title to the Gainesville, Jefferson Southern Railroad Company, abandoned that part of its railroad between Monroe, Walton County, Georgia, and Belmont, Hall County, Georgia, for railroad purposes, as well as all other purposes, by conveying to J. Roy Jackson its said right of way and station land, the said Jackson not owning or operating any locomotive equipment and not being authorized under law to do so, and by removing the rails and crossties, dismantling the bridges and trestles, and failing to maintain any railroad service, and allowing the roadbed to be so changed that it can not be used for railroad purposes, and that the defendant, J. Roy Jackson, went into possession of the properties covered by the conveyances executed by Bush, which are set out above.
The plaintiffs alleged that the title to said property was in them and that the defendant never acquired any title or interest in the property, for the reason that the instruments from Bush conveyed only an easement and that, upon the abandonment of the operation of the railroad line, the railroad company lost all right and interest in said lands. The yearly value of the property was alleged, and claim was made against the defendant for the rental since he had been in possession. It was further alleged that the plaintiffs were without remedy at law for the reason that the defendant had within his own knowledge the amount of rents and profits which he had received.
The plaintiffs filed an amendment to their petition, which was allowed, subject to objection and demurrers, on November 20, 1948, and by this amendment alleged that the property described *584 in the two conveyances from Bush was the same property; that it embraced a tract of land 200 feet wide extending through what was then the town of Jug Tavern, a mile and one-half, and embraced 36 acres of land; that the value of the land was at least $3600 at the time the conveyances were executed. The amendment further alleged that the only consideration Bush received was the ten dollars recited in the instrument and the anticipated benefits to him of having the depot of the railroad company located on his land; that neither Bush nor the railroad company intended or contemplated that the conveyance would do anything more than grant an easement for a right of way, and that neither party intended for the instruments to convey fee-simple title to the land. This amendment further alleged that the instrument referred to as exhibit "A," executed by Bush in 1881, was void for the reason that the railroad company at that time had no charter power to accept the conveyance or to construct or build a line of railroad through Jug Tavern where Bush's property was located, but this position was abandoned on the argument before this court and in the brief of counsel for the plaintiffs.
A second amendment to the petition was allowed, subject to demurrer and objections, on December 27, 1948. This amendment alleged that the railroad had not been constructed, nor any particular course marked out or selected for the right of way through the lands of Bush when the deed dated May, 1881, was executed and delivered.
The defendant demurred generally to the petition as originally filed. The grounds of demurrer were simply that the petition failed to set out a cause of action, and that no matter or thing of equity or equitable jurisdiction was shown, and that the plaintiffs were not entitled to any equitable relief.
After the amendment of November 20, 1948 was filed, the defendant renewed his demurrer to the petition as amended, and demurred to the several paragraphs of the amendment. The allegation in the amendment that the property conveyed by the two instruments was the same property was demurred to as being a conclusion, and further because the instruments themselves showed that one of them conveyed properties situated in both Jackson and Walton Counties, and the other land lying only in Jackson County. The allegation as to the consideration received *585 by Bush was demurred to specially as being a conclusion of the pleader for the reason that the instruments spoke for themselves.
The allegations in paragraphs 19 and 20 of the first amendment, setting out what Bush and the railroad company intended by these instruments, were demurred to as being conclusions of the pleader and for the reason that the instruments spoke for themselves and showed the intention of the parties.
The allegations of this amendment, to the effect that the Gainesville, Jefferson Southern Railroad Company had no charter power to receive or accept land or to construct a line of railroad through Jug Tavern where the property was located, were demurred to as being mere conclusions of the pleader, unsupported in fact or in law, for the reason that the charter of said railroad company was granted by an act of the legislature of Georgia appearing in the acts of 1872 (pages 333 to 336), which expressly showed that the railroad company did have authority to acquire these lands.
When the second amendment to the petition was allowed December 27, 1948, subject to objections and demurrer, the defendant again renewed his demurrer to the original petition and to the petition as amended upon each and all of the grounds set out in said demurrer, and upon the ground that the petition as amended showed on its face that the plaintiffs had no cause of action and no right, title, or interest in the lands described in the petition.
The case was heard by Honorable Frank Guess, presiding for Judge Clifford Pratt who was disqualified, and by an order dated January 5, 1949, Judge Guess overruled the demurrers to the petition as amended, and the case is before this court on the questions presented by said demurrers.
In the brief of counsel for the plaintiff in error, it is stated that the record raises these questions: "(1) Under the conveyances referred to, did the railroad company acquire such a title to the property conveyed as would revert to the grantor or his heirs upon the discontinuance of the company or its successors to use the property for railroad purposes? (2) Do the conveyances executed by W. H. Bush in 1881 and 1884, respectively, or either of them, convey to the grantee therein a fee-simple title to the *586 land therein described, or merely grant an easement over and across said land for the operation of a railroad line?" It is conceded by counsel for both the plaintiffs and the defendant that this case turns upon the proper construction of the two instruments which are set out in the foregoing statement of facts and referred to in the petition as exhibits "A" and "B," and which are referred to in the briefs of counsel and will hereafter be referred to as the instruments executed by W. H. Bush in 1881 and 1884.
Both the plaintiffs and the defendant claim under W. H. Bush, the plaintiffs as the personal representative and heir at law respectively of Bush, and the defendant as successor in title under the instruments referred to, executed by Bush. If it should be held that either of these instruments conveyed the title to the lands therein referred to, then the petition failed to set out a cause of action, and the judgment overruling the general demurrers thereto should be reversed. On the other hand, if it should be held that both of these instruments conveyed easements only, and not title to the property involved, then the petition set out a good cause of action, and the trial court's judgment overruling the general demurrers thereto should be affirmed.
Counsel for both the plaintiffs and the defendant have filed exhaustive briefs, in which they have cited, discussed, and distinguished decisions by this court, and several from other jurisdictions, dealing with a similar question. Many of the cases are very close, and the differences in the facts and in the provisions of the various conveyances dealt with are slight indeed, and this renders a decision of the question here presented most difficult. As pointed out by this court inJohnson v. Valdosta, Moultrie c. R. Co.,
It is insisted by counsel for the plaintiffs that the indefiniteness of the description of the land sought to be conveyed by this instrument should also be taken into consideration in determining whether the conveyance is of the title to the land or merely of an easement over the lands of the grantor, but this question is also settled adversely to this contention by the second headnote in the Johnson case, supra, wherein it is held: "Where property is conveyed by a grantor to a railroad company for the purpose of its right of way, without full description of the land conveyed, the occupancy of a particular route by the grantee with the consent of the grantor will identify and locate the property conveyed for such purpose, especially where the grantee pays to the grantor the purchase-price of the property conveyed and takes possession." See also, in this connection, Gaston v. Gainesville c. Ry.Co.,
Much stress is also laid by counsel for the plaintiffs upon the expression, "for railroad purposes," contained in the habendum clause of the instrument here under consideration. It is not insisted by counsel for the plaintiffs that this expression would be sufficient to create an estate on condition, or an estate with a conditional limitation, for they fully recognize that such an expression would not be sufficient for that purpose, and the soundness of the authorities relied upon by counsel for the defendant which hold to that effect, viz., Hollomon v.Board of Education of Stewart County,
We hold that the instrument executed by Bush in 1881 conveyed to the grantee therein a fee-simple title to the two-hundred-foot strip through the land therein described, and not a mere easement for railroad purposes. See, in addition to the authorities hereinbefore cited, Samuel Mitchell Estate v. Western and *590 Atlantic R.,
Since we have held that the instrument executed by Bush in 1881 conveyed a fee-simple title, and not an easement, it becomes unnecessary to consider the instrument executed by him in 1884, for, even should it be held that this latter instrument conveyed an easement only, the grantor, having already conveyed the fee by the prior conveyance, could not limit or change it by the subsequent conveyance. For the reasons hereinbefore stated, the trial court erred in overruling the general demurrer.
Judgment reversed. All the Justices concur.