*1 pauper pleaded guilty; was same he al- employ no other He makes and unable to counsel. to legations petition herein as for the basis his merit. petition a writ error
He that a further states 5, 1964 in coram June denied on nobis was way of know- have no Switzerland Circuit Court. We ing hearing not at the issue whether considered, appointment raised and of counsel was gives petitioner by that us court. determined adjudication to an no information with reference thereof. question Defender for
This is referred to Public investigation report court, pending this petitioner’s further court of the consideration plea herein. Myers
Achor, Jackson, JJ., C.J., Landis, concur. Reported in 201 2d 495. N. E.
Note. — Legler
Ross, al. Inc. v. Rehearing 30,401. denied Filed June [No. 8, 1964.] October *2 Ben J. Merrill, Sckroeder, Johnson Biederwolf & Kleindorfer, both of Evansville, appellant. for
Bamberger, Foreman, Hahn, Oswald & F. Wendell Lensing, Joseph John G. Bunner and Hatfield, S. all Evansville, appellees. for reassigned May 14,
1. This case was on ap- brought by the Achor, an action C. J. —This is ap- against Corporation pellee, Evansville School herein, for the appellees Ross, pellant, Inc., and other purposes. of real condemnation estate school only agreement issue parties are in appel- through deeds, case is whether simple or an title, convey fee title lant claims court only. in the trial was raised easement This issue asking that by appellant’s affirmative answer cross-complaint quieted it, re- be Fickas, Legler, Davidson, plies appellees filed asking quieted ah, them. The court et title be Legler, al., appellees, Rex et held Nellie ah, appellees, Fickas, Pollock were Annadale estate, in fee real the owners said property. had no title in said subject contro- of this real which is the *3 abutting 50 versy, strip land feet wide a or belt of is city Evansville, a 12 acre public a in the street thereof, latter which on the other side tract of land by purchased Evansville School the tract had been predecessors, City in title a site for a school. as controversy, strip the same of land in had sold to the. by Railway 1908 three Terminal in to the Evansville operated separate thereon A railroad was deeds. transfers, year, until 1948. In that after several acquired by the Evans- strip to had been said Co., Inc., Valley Railway which abandoned ville & Ohio tracks) taking up executed (by railroad Ross, Inc. quit claim deed thereto to a ap- strength upon chain of title that of this It pellant action. cause of rests his upon a must rest
Obviously in this case our decision con- the above deeds which of the construction 658 guided by
veyances are cer- were executed. In we this type applicable to are this tain established rules They are: of action. plaintiff (appellant) upon recover
1. The must Degymas strength Denham al. v. own title. his 214; 666, (1958), 2d et al. 237 Ind. 147 N. E. E, 58, (1949), 84 Kessener 227 Ind. N. v. Kerfoot 190; Rlty. L. & & Constr. Co. v. Indian G. 2d apolis 315, (1958), App. 139 E. 2d 580. 127 Ind. N. (1897), Graham 149 stated in v. Ind.
As Lunsford 88, 48 83, 627: N.E. “ a . . . Under ... rule well affirmed re-
peated court, appellants, decisions of this in suit, prevail order strength this must do so on of their own title. burden was cast upon dispute; a them title to show sufficient the lands appellees any to establish the_failure ground title whatever could afford the thereto former no recovery. ...” construing deed, rule, 2. In it ais in the con instruments, struction of other written -all given purpose words are to be effect for the determining parties. the intent of Leeds 541; (1945), 593, Leeds 223 63 Ind. N. E. 2d v. (1942), Ind. 215, Bros. Lassiter v. Goldblat E.N. 803; Rlty. Indianapolis & & 2d L. G. Constr. Co. v. supra (127 App. 315). Ind. Davenport
Similarly, (1892), v. Gwilliams 133 Ind. 142, 145, 31 N. E. court stated:
“It is also cardinal rule in the construction *4 deed, of deeds that it be made on the entire merely upon particular part it; and, a there- not of fore, every part ought, possible, a deed to of if operate.'” every [Cases word to effect, take supplied.] [Emphasis cited.] Phelps (1938), Claridge v.
Likewise, in the case 503, it has been 2d App. 344, 11 N. E. 105 Ind. stated: ‘ “ important rules in the most ne of . . [O] .. them to construe is so construction deeds object rejected. of all part be no shall par of the the intent is to ascertain construction to have intent been their ties, some must have and it part. every could be meaning It never himself; we therefore to contradict intent man’s as reconciles to construction lean such should the different reject parts, a construction ’ Wager [Wager v. . . a contradiction. . leads to Serg. (Penn.), 1 & R. 374]” policy conveyance not favor the Public does companies to
strips of land titles railroad right-of-way purposes, either deed or policy upon based the fact condemnation. This is strips alienation of such belts parent primary or bodies land from and across severed, obviously .they are is land from which convey purpose necessary for which such' not of the intended made after abandonment are ances conveyance,-' expressed there uses as adversely generally- operates after severance such in all use of the normal and best property ambiguity Therefore, there where volved. conveyed the interest or title such
the character generally ambigüity will be construed favor/of assigns. grantors, original their heirs Act 1905 Condemnation Section 1 of the specifically acquires right-of-way a- provides where a railroad *5 660
by condemnation, may acquire simple not a fee it title.2 statute was in This effect when the railroad first acquired strip right-of-way the of land for a in 1908 by and must have been understood the railroad as expressing public policy upon the this issue. recognized policy
This was the of also case Rlty. Indianapolis, supra, L. & G. & Constr. Co. v. 127 App. 315, 328, 139 Ind. 2d 580 : N. E. Ry. Tyrrel (1936), “In Houston N. S. Co. v. 248, 786, 1508, 128 Texas 98 S. 108 W. 2d A. L. R. statutory it provisions held was the right road way by of secured a condemnation to a rail- company shall not be to include construed simple merely existing
fee easement, estate but an is an statute, enunciation of the rule without of basis principle is the fundamental property greater no more and no estate or in- may public terest required.” be taken than the use deed, conveyed 4. A when the interest is defined or “right way,” conveys only described a an ease grantor, ment in which title reverts his assigns upon heirs abandonment such right-of-way. Rlty. L. & G. & Constr. Co. v. Indianapolis, supra; Ingalls Byers (1883), v. 94 Ind. 134; Cincinnati, Indianapolis, St. Louis Chicago R’y (1889), Co. v. Geisel 119 21 E. Ind. N. 470; Company Lake Erie & Western Railroad v. (1893), App. 228, Ziebarth 33 Ind. N. E. 256. brief, primarily upon In his relies Although ambiguity in the event of as to right-of-way purposes, character conveyed the interest or title land public policy normally the reversion favors of such land to the owner, assigns original a by his heirs and on abandonment exception thereof railroad, possible public a and reasonable within the policy might conveyed right-of-way exist where such easement and governmental body public to and dedicated for a right-of-way. However, we not decide do this issue which is not presented. here original supporting deeds of 1908 to the railroad as his controversy. the real title to estate in We therefore express from first examine these deeds to ascertain language parties therein contained whether the intended they convey right-of-way aor fee therein, land asserted described as herein appellant. conveyances Each described the of these “right strip (50 wide) way.” of land feet as a Specifically description portion sentence in the last way provided: . strip of each . . “Said deed *6 containing . . . or acres more less.” appellant’s provision
It contention that is this meaningless, merely it an enhancement since was descriptive deed, of the clause of the and was not a restriction limitation contained in “granting either clause” or the habendum the. clause in the deed. We find to be an over-refine this stated, ment of the rules construction. heretofore As entirety we must the deed in consider its and also subj property the known use to which the towas be give conveyance and therefrom the effect ected3 parties. description intended of a clause may employed deed quality be to describe the as well quantity conveyed. as dimensions the estate Therefore, under the enunciated, rules above we be considering only lieve deeds, the 1908 the decision of the trial court should be affirmed. regardless
However, of the construction which this upon may place conveyances the 1908 court from the “ tendency disregard ‘The modern decisions is to techni- conveyance ambigui- calities and to treat all uncertainties in a as subject up to be cleared resort to ties parties the intention of the gathered itself, as from instrument circumstances leading execution, attending up subject to its and the matter ” parties the situation of the as of that time. . . .’ Am. [16 Deeds, Jur., §168, p. (1942), Lassiter v. Goldblatt 531.] Bros. 218, 220 Ind. at 41 N. 2d 803. E.
original railway, appellant’s cause landowners any, interest, must or fall if stand on the of the basis arising by deeds, acquired virtue of its own which it Co., Valley Railway from the Evansville & Ohio in 1948. Inc. here, grounds
Appellant, the trial court and both simple upon it a fee contention holds claim its its subject Having stand, property. taken title in its only prevail if it can sustain claim to a fee can it Consequently, the decision of title. this be to whether suc- court must proving such title in itself as matter of ceeded making law, and in determination we con- must interest, conveyed any, the nature of the if sider conveyances railway. appellant by the 1948 from the quit deeds, purport convey claim and an appellant, interest in said real estate to described interest and real estate as follows: way “All on north side of the. adjoining property Covert Avenue and in the name Legler beginning ap- Richard on south at side proximately 210 east of Vann Avenue feet running eastwardly in an direction feet to the property west line of in the name of Heerdink.” *7 emphasis.] [Our whereby appellant to the These title deeds claims expressly real estate defined and described the interest “right conveyed way.” Thus said deeds right passage, conveyed only an easement or passage which terminated easement Therefore, regardless upon the abandonment thereof. upon original placed the of the construction here conveyances, appellant prevail. cannot
Judgment affirmed. Myers, JJ., Arterburn, & concur. Landis Jackson, dissents, opinion. J., with
-Dissenting Opinion. on order on transfer J. —This cause is here Jackson, appeals theory Appellate on of the Court the Supreme than rather condemnation are in the actions Appellate Court. the brought appellee, Evansville by the an action
This is Inc., against Ross, Corporation, appellant, the School against appellees for the con- the other herein and purposes. The for school demnation of real estate ownership is in of the real to be condemned estate appellant ap- dispute and of the certain between the pellees herein. agreement parties only issue in are through is, appellant did the
this case deeds convey title the fee an claims title or ease- only? ment objection appellant and to the filed its answer Corporation,
complaint appellee, School Evansville determining praying for order an by ap- held real condemned herein was Legler, appellees, Rex et al. pellant; and Nellie al., Fickas, Annadale Pollock filed appellees, objec- replies appellant’s separate answer petitions appellees separate also filed said tions against appellant praying cross-complaints determining order title to real estate con- an appellees. The herein was held con- demned said ap- entered order was the court demnation exceptions appointed, praisers filed were report requested appraisers a trial on the damages. hearing A of the trial and was held on issue *8 estate, question and of title to the condemned real Legler, appellees, Rex court held that Nellie Fickas, appellees, et al., Pollock and the Annadale ah, in fee of real estate were owners said property. and that the had no title in said question The real follows: is described as “Part of the South One-half of North-west Quarter Part of the North one-half of the and a Quarter Thirty-five (35), Southwest Township of Section South, Range West, (6) (10) Six Ten Vanderburgh Indiana, County, particularly more described as follows: “Beginning point at a on the South line of the quarter quarter Southwest of the Northwest Eighty-nine (89) said Section which North de- grees Fifty (50) and East at a minutes distance Seventy-five (475) of Four hundred from feet quarter the Southwest corner of the Southwest quarter Section, of the Northwest of said thence parallel North and with the West line of the South- quarter quarter west of the Northwest Sec- said Thirty-seven eighteen tion for a distance of and (37.18) point hundredths feet on the Right-of-Way North line of the former of Valley Railway Evansville and Ohio thence North Company Eighty-nine degrees (89) Forty- along right-of- (49) nine North minutes East said way six and Eight seventy- line a distance of hundred fifty-seven (876.57) to a feet hundredths point Twenty-five (25) line feet east of East quarter quarter of the Southwest of the Northwest (0) degrees of Eleven South said Section thence Zero (11) Fifty for a minutes West distance of (50) point feet to a line on the South of said way, Eighty-nine
former thence South degrees Forty-nine (89) (49) West for minutes Eight seventy-six forty- a one distance of Twelve hundred distance (876.41) feet thence North for a hundredths eighty-two hundredths beginning. (12.82) place Subject feet to the any legal highways, rights way.” easements passed controversy Title to the real estate appellant’s predecessor in title deeds marked A, B, and *9 Exhibits C. The issue is therefore deter- by placed upon mined the construction to be said in- struments. A appearing
Exhibit page transcript at 223 of the warranty a conveying is deed certain real there- in described Railway to Evansville predeces- Terminal appellant sor in title to A herein. careful examina- tion of only said deed discloses a metes and bounds description of the real described, estate therein to- gether awith final body sentence in the of the deed reading strip right way of being “[s]aid of located quarter in the southwest of section township 6 range south 10 containing west .76 acres.” Said deed, my opinion, conveys in a simple fee rather than an easement. B, appearing
Exhibit page 225 of transcript, at quit conveying a is claim deed certain real estate by described paragraph metes bounds. The final in body of the deed reads strip as follows: “[s]aid right way being quarter in located the northwest township range section 6 south 10 west con- taining instrument, 1.14 more acres or less.” Said my opinion, conveys a fee not an easement. appears page
Exhibit C at transcript 227 of the quit conveying is claim deed certain real estate therein described metes and bounds. Said deed con- body tains in the thereof a reading statement as fol- strip right way being : “Said lows located in the quarter of 35 township northwest section 6 south range containing 10 west 1.14 acres more or less.” conveys deed an Said interest in the real estate rather an than easement. provided granting involved deeds clause conveyance following
for a of “the real es- described convey- imports clearly granting clause
tate.” Quite re- specific contain a land. often ance of deeds grant language stating that shall verter clause or long property a railroad is used for so as as continue purpose, specific thus right-of-way or other for some through subsequent. The deeds imposing a condition herein contain no such claims title 'limitations, restrictions, subsequent. or conditions designated majority opinion in the
The statement thereof, my opinion, assumption paragraph 3 is an prohibition not in fact exist. The that does right-of- acquisition of a fee railroad only acquisition right-of-way way limited of eminent domain under the exercise of Act. the 1905
The cause should be remanded reversed findings trial court with to enter instructions its judgment is the owner in fee appropriated proceedings, real hearing purpose had and that be for the of deter- appellant’s mining damages to real estate. Reported N. E. 2d Note. — Casey, Trustee, etc.
Peters v. 30,496. Filed October [No. 1964.]