129 Minn. 126 | Minn. | 1915
Action to determine the title to real property in which plaintiff had judgment and defendant appealed from an order denying a new trial.
The facts are as follows:
The land in controversy was conveyed to the Duluth Transfer Eailway Co. for right of way purposes, by the executors of the estate of George' W. Norton, deceased, who was the owner of the larger tract out of which the land in question was taken. The grantee in that conveyance was a corporation duly organized under the laws of the state in the year 1890, for the purpose of operating transfer lines of railroad within the city of Duluth and points beyond the boundaries .thereof, and it was granted the use of certain streets of the city, and of West Duluth, upon condition that it serve all railroad lines entering the city, and to permit such other railroad companies to use its tracks and facilities upon payment therefor.
The transfer company thereafter constructed its lines of road
The trial court found, from the facts stated, and other facts and circumstances not necessary to here repeat, that there was a complete abandonment of the land by the Northern Pacific Co., that all rights and interests acquired under and through the deed to the transfer company terminated, and that the estate of Norton, the grantor, became fully reinvested with the title to the same free and clear of any claim on the part of the defendant railroad company.
It is contended on the part of appellants: (1) That the Norton' deed to the transfer company conveyed an absolute fee title limited only as to use, namely, railroad right of way purposes, and that a failure to use it for that purpose or at all would not terminate the absolute title thus granted; (2) that the findings of the court to the effect that the land was abandoned by defendant Northern Pacific Co., thereby terminating its easement and title, are not sustained by the evidence; and (3) that the court erred in excluding certain evidence, offered by defendant for the purpose of showing the intent of its officers in removing the track, ties, and bridges from the land,
“WITNESSETH: That the said parties of the first part, in consideration of the sum of thirteen hundred and twenty-five dollars to them in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, do, by these presents, grant, bargain, sell and convey unto the said party of the second part, its successors and assigns, all that tract or parcel of land lying and being in the county of St. Louis, and state of Minnesota, described as follows to wit: (here follows a description of the land conveyed).
“TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining, unto the said party of the second part, its successors and assigns, for the uses and purposes of said party of the second part for and so long as the same shall be used as a right of way for tracks and side tracks and a railroad way for its railroad cars, locomotives and trains and for proper appendages to such track or tracks and railway, and for any other uses consistent with or embraced in the purposes and general nature of the business of said grantee, as expressed in its articles of incorporation.”
Aside from the names of the parties and the description of the land this quotation includes all the provisions of the conveyance. A reading of the same leaves in our minds no fair doubt of the intention of the parties. The land conveyed was taken from a larger tract and was a narrow strip 75 feet wide by about 3,000 in length. The railroad company desired it for a particular purpose, namely, as a right of way, and the grantors were willing to convey for that
No question arises as to the result and effect of an abandonment in a case of this kind. The Norton deed conveyed an easement for railroad purposes and, unlike a conveyance of the fee title, the right so granted may be lost by abandonment. This is settled law, and' not here disputed. 14 Cyc. 1185 ; 1 Ruling Case Law, 4. To have the effect of divesting title and reinvesting the same in the grantor of the easement, the abandonment must amount to something more than mere nonuser, for there must appear to have been an intentional-
In the case at bar the right of way was granted to the transfer company for and so long as it continued to occupy and use the same for railroad purposes. The grantee was a public service corporation, charged with certain duties and obligations in supplying facilities to other like corporations. By the abandonment of the road, by taking up and removing the track from the line in question the Northern Pacific Co. relieved itself from the discharge of those duties and obligations. The line from Sixty-third avenue,- West Duluth, to a point near Spirit Lake was parallel to the St. Paul & Duluth line, owned by the Northern Pacific Co., and there was, so far as disclosed by the record, no necessity or occasion for maintaining both lines; the St. Paul & Duluth line answered and supplied all the needs and requirements of defendant. The line from the point near Spirit Lake extended to a connection with the old Duluth & Winnipeg line of railroad, and when that road was in operation afforded it an entrance into Duluth over the transfer line. But the Duluth & Winnipeg line had been abandoned and the track taken up, and the extended transfer line was of no use or purpose beyond the point of divergence from the St. Paul & Duluth line near Spirit Lake. The defendant took up all this line between the points stated, removed the tracks, ties, rails and bridges, and all in connection therewith which was of any value or suitable for use elsewhere, and for 10
Defendant offered evidence tending to show that the removal of the track and bridges was not with any intention of abandoning the line, or its rights therein, but for temporary purposes only. Certain maps prepared by employees of the company for the purpose of showing the rights of way, held and owned by the company at Duluth indicated a continuing claim to this right of way. These maps were prepared, as we understand the matter, after the tracks had been taken up and removed, and the markings thereon included this particular right of way. It was not so marked out on one of the maps. These maps were proper evidence for the trial court, but are not conclusive that there was no intention to abandon permanently this part of the transfer line. The evidence was proper for the consideration of the trial court in connection with the other- facts and circumstances disclosed. The effort of the representatives of the Norton estate to
.Our conclusion therefore is tbat tbe Norton deed conveyed to tbe transfer company an easement only, tbat tbe findings of an intentional
Order affirmed.