132 Iowa 129 | Iowa | 1906
Lead Opinion
This is one of a series of cases, involving what is known as “ abandoned rights of way,” which have given ns much trouble in the past, and about which we have not been entirely agreed. The case now before us, however, involves one new proposition, and to this we shall now turn our attention. In May of the year 1868 one Eleanor TI. Moore was the owner of the S. E. ^4 of the S. E. % of section 9, township 71, range 17, in Monroe county, Iowa, and on the 10 th day of that month she executed and delivered a deed to the Iowa Central Railroad Company, as right of way, one hundred feet wide through the quarter of land above described for railway purposes only. It was expressly provided in the deed that, if the said premises are not used for said railroad purposes, “ it is to revert and rest in said Eleanor II. Moore.” In the year 1876 Eleanor H. Moore conveyed the quarter above described to John Spencer, Sr.; the deed containing this reservation or exception: “ Excepting a strip of land 100 feet wide heretofore deeded to the Iowa Central Railroad, being the same now occupied by said company’s road as located across said land.” John II. Spencer, Sr., died intestate, and the widow and other heirs, save John Spencer, Jr., conveyed the land of which Spencer, Sr., died seised to John Spencer, Jr.; the deed containing this exception: “ Excepting the right of way of the Chicago, Burlington & Quincy Railroad and the Center-ville, Monrovia & Albia Railroad.” This conveyance was made March 4, 1893. It appears that the Central Railroad of Iowa succeeded to the rights of way of the Iowa Central Railroad Company some time in the year 1870. In 1879 the Moulton & Albia Railroad Company condemned the right of way in controversy, as against the Central Railroad Company, and built a railway thereon, which it and its successor, the Chicago, Burlington & Quincy Railroad Company, used for a right of way and operated as a railway until about the year 1888, when it was abandoned by them. In the year 1897 the rails and ties were removed
Section 2015 of the Code provides, in substance, among other things, that if a railway shall not be used or operated for a period of eight years the right of way, including the roadbed, shall revert to the owner of the land from which said right of way was taken. Bor the purposes of the ease we shall treat the right of way as abandoned by nonuser, and also concede that neither the original landowner nor his grantee need refund the compensation received for the original right of way. Indeed, these propositions are not now involved. We shall also assume that title reverted by nonuser for more than eight years to some one, and that this reversion became complete some time in the year 1896. The question is, to whom did the land revert? Plaintiff contends that as purchaser from the heirs of the owner of
II. But there is another reason why plaintiff cannot recover. The land was not originally condemned for railway purposes. It was acquired by deed from Eleanor H. Moore, and in that deed we find the following: “ With the
As the parties stipulated for a reversion to the grantor in case of nonuser or abandonment, we have no occasion to inquire as to the effect of the statutory reversion. Upon the latter proposition the members of this court are not agreed. The conduct of Eleanor H. Moore in excepting the strip of land deeded to the Iowa Central Railroad from her deed to Spencer, and of the Spencer heirs in making a like exception, is entirely consistent with the construction we have placed on the deed to the railroad company, and adds strength to the thought that these exceptions were, what they purport to be, of something from the estate granted, and that something was of the reversion provided for in the deed to the railroad company. In the face of the provision in the deed to the railway company to the effect that in case of nonuser the title should revert and rest in Eleanor H. Moore, we are not justified, especially in view of the exceptions contained in the deeds in plaintiff’s chain of title, in saying that upon abandonment of title vested in plaintiff under
Our conclusion upon the whole case is that the .demurrer to the reply was rightly sustained, and that the judgment should be, and it is, affirmed.
Dissenting Opinion
(dissenting). 1. Eleanor H. Moore conveyed to the railroad company .a right of way for its road across her land. The reversion clause in the deed gave it no other or greater effect than it would have had were that clause entirely omitted, for the conveyance was expressly made for a specific use and purpose, and an abandonment of that use and purpose by the grantee would of necessity work the extinguishipent of the right so conveyed and leave the title to the entire tract in the grantor, her heirs or assigns, unincumbered by the claims of the railway company. While this right of way was still unimpaired in the company, Mrs. Moore conveyed the entire tract to Spencer, “ excepting a strip of land heretofore deeded to the Iowa Central Railroad.” What was it she had deeded to the railroad company? Not the fee to the strip, but the right of way only, and this and nothing more is what she excepted from the second conveyance. It seems to me a palpable perversion of the clear meaning of the language of her deed to Spencer to say that she intended to or did in fact except from its tens the fee underlying the -right Of- way.- She s'ayS in £ub
II. Furthermore, our statute (Code, section 2015) provides that upon abandonment for eight years of a railroad right of way the land shall revert to the owner of the tract from which it was taken. This we have expressly held must be interpreted in favor of the person who owns the tract at the time the abandonment becomes complete, and n'ot the person who may have owned such tract at the time the right of way was taken. Smith v. Hall, 103 Iowa, 95. We also said in the same case that as the right of way was taken for further use, and the fee remaining in the grantor was nominal only, it was -entirely “ competent for the Legislature to say to whom the land occupied and used by a railroad. company shall revert when abandoned.” That decision was concurred in by the entire court, including at least two of its present membership. If it was good law then, it is good now. Indeed, there is no suggestion in the opinion of any purpose to discredit or overrule that precedent. If we were correct in saying that the Legislature can control the direction in which ownership of the right of way shall pass on its abandonment, and if, as we there held, the owners of land under a deed which simply describes the granted tract as bordering on the right of way are entitled to the benefit of the reversion which takes place when that right of way is abandoned, then most certainly the holding of the district court in the present ease was erroneous and should be reversed. If Smith v. Hall, supra, and Remey v. Railroad Co., 116 Iowa, 133, and the half dozen other cases which have adhered to the rule of these cases, are to be overruled, let ns do it frankly and unequivocally. To hand down the
I think the decree appealed from should be reversed.