83 Wash. 260 | Wash. | 1915
This is an action to quiet title in the plaintiffs to a strip of land formerly occupied as a railroad right of way. The evidence was chiefly documentary, consisting of instruments the parts of which, hereinafter chronologically set out, constitute the essential facts.
(a) On December 12, 1870, John Beek and Jane Beek, the then owners of a donation land claim where the town of Castle B.ock, in Cowlitz county, is now located, conveyed to
“The right-of-way for the construction of a railroad and telegraph line to the extent of 200 feet wide, of land, on each side of said railroad, along the entire of said railroad as located, or to be located, across on hereinafter described lands and premises, and the right, power, authority, to take from our said lands adjacent to the line of said railroad material of earth, stone and timber for the construction thereof, to-wit: Reserving always the fee simple to said lands and premises, it being understood that the use of the land for said' railroad purposes is all that is conveyed by this instrument to-wit: Our Donation Claim Certificate No. 12, Notification No. 1243, as designated on the plats and records of the U. S. Land Office at Vancouver, W. T., containing 315-80-100 acres, being: [here follows a particular description of the donation claim.]”
(b) On December 19, 1871, the same grantors conveyed by bargain and sale deed to the Northern Pacific Railroad Company by specific description a part of the donation claim containing 45.25 acres, upon condition as follows:
“This deed is given upon the express condition that the said Northern Pacific Railroad Company, party of the second part, construct a station and depot upon the line of its railroad upon the above described premises, with proper and usual facilities and accommodations for passengers and freight, and maintain the same permanently.”
(c) On February 20, 1878, the railroad company reconveyed to John Beek by quitclaim deed the same 45.25 acres of land last above mentioned, with the following reservation:
“Reserving and excepting therefrom, however, a strip of land extending through the same or so much of said strip of land as may be within said described premises of the width of four hundred feet, that is, two hundred feet on each side of the center line of the Northern Pacific railroad' as conveyed by said party of the second part to said party of the first part, for right-of-way, by deed dated the twelfth day of December, A. D. 1871.”
(e) On June 12, 1879, John Beek and Jane Beek, his wife, executed to James Studebaker a deed conveying by particular description the entire donation claim, reciting “containing 315-80-100 acres, more or less,” and followed by a reservation and exception which reads:
“Reserving and excepting therefrom, however, a strip of land extending through the same or so much of said strip of land as may be within said described premises of the width of four hundred feet, that is, two hundred feet on each side of the center line of the Northern Pacific railroad as conveyed by said John Beek and Jane Beek, his wife, to the Northern Pacific railroad company for right-of-way by deed dated the twelfth day of December, A. D. 1870.”
(f) On April 18, 1913, the Northern Pacific Railroad Company executed to one Joseph O’Neill a quitclaim deed of the abandoned right of way across the Beek donation claim. This deed, it is admitted, was given for the benefit of all of the plaintiffs. It was also admitted that the railroad company has recently abandoned this part of its former right of way and removed its tracks therefrom.
The evidence showed that the plaintiff James Studebaker was a son-in-law of Pyle and a partner in the purchase of the Beek donation claim. Studebaker testified that the deed from Beek'and wife to him, dated June 12, 1879, was given in compliance with the bond for deed from John Beek to Pyle. It was admitted that the other plaintiffs are the heirs at law of George R. Pyle, who is now dead, and that what
The appellants’ claims of error are all, so far as material, directed to three points: (1) That the deed from John Beek and wife to the appellant Studebaker, instrument (e), should have been construed in connection with the bond for deed from the Beeks to Pyle, instrument (d), as conveying the fee of the right of way then occupied by the railroad company and reserved to the Beeks in their original deed to the railroad company, instrument (a) ; (2) that the second deed from the Beeks to the railroad company conveying the 4.5.25-acre tract, instrument (b), conveyed to the railroad company the fee of the right of way which had been reserved to the Beeks in their original deed of the easement to the railroad company, instrument (a), and the deed from the railroad company of this 4i5.25 acres back to the Beeks, instrument (c), reserved to the railroad company the fee of the right of way, so that the deed from the railroad company to O’Neill, instrument (f), of the abandoned right of way conveyed the fee title of that strip; (3) that because the reservation in the deed from the Beeks to Studebaker, instrument (e), was couched in the same terms as the reservation in the deed from the railroad company to the Beeks of the
I. The claim that the deed from Beeks to Studebaker should be construed in connection with the bond for a deed from Beek to Pyle, is based upon the contention that the reservation in the deed from the Beeks to Studebaker is ambiguous, in that it contained the words “reserving and excepting” as applied to the strip of land here in question. It is urged that the deed should be construed together with the bond for a deed in fulfillment of which the deed was given. The bond for a deed contained no reservation or exception whatever. It is claimed, therefore, that the reservation and exception in the deed was a mere reservation to the railroad company of the easement for a right of way which, when abandoned, passed by the deed and the bond for a deed to Studebaker. This court said, in Biles v. Tacoma, Olympia & Grays Harbor R. Co., 5 Wash. 509, 32 Pac. 211:
“While it is true that there is a technical legal distinction between an exception and a reservation, it is also true that whether a particular clause in a deed will be considered an exception or a reservation depends not so much upon the words used as upon the nature of the right or thing excepted or reserved. Martindale on Conveyancing, p. 106, § 118. An exception is a clause in a deed which withdraws from its operation some part of the thing granted, and which would otherwise have passed to the grantee under the general description. The part excepted is in existence at the time of the grant, and remains in the grantor unaffected by the conveyance. A reservation is the creation in behalf of the grantor of a new right issuing out of the thing granted, something which did not exist as an independent right before the grant. 5 Am. and Eng. Enc. of Law, 1, 455, Title, ‘DeedsTiedeman on Real Property, § 843. But frequently the words exception and reservation are used as synonymous, and the term exception will be held to mean reservation whenever it may be necessary to effectuate the intention of the parties to the instrument.”
The case of Hall v. Wabash R. Co., 133 Iowa 714, 110 N. W. 1039, presents a situation closely parallel to that before us. In that case a right of way had been previously deeded to the railroad company and later a deed had been made to another person of the entire tract, just as in this case the deed was made from the Beeks to Studebaker. In the deed of the entire tract, the following language was used: “Excepting the part occupied by the right of way of the Iowa Central Railroad Company.” In the case here, there was a reservation and exception of the strip of land, and for a description, reference was made to the original deed of the right of way to the railroad company. The cases are thus clearly analogous. The court said:
“This exception is clear and unequivocal, and no title to the land embraced in the right of way passed. She deeded all of the forty-acre tract, except the land occupied by such right of way. We do not see how an exception could be more definite, or how the intent of the grantor could be made plainer. The railroad company then had a • recorded deed of the right of way. An exception in the grant of the right of way alone would amount to nothing, and, unless the exception in question withheld from the grant the strip of land so occupied, it is meaningless. It was the soil itself that was in terms excepted from the grant, and not merely the right of way. The exception before us is not repugnant to the grant, and must be held valid; and, if it be valid, the*268 title to the land occupied as right of way remained in the grantor, with the like force and effect as if no grant had been made.”
This language is directly applicable to the situation here. Since the railroad company was in possession of the right of way at the time the deed was given to Studebaker, under a prior recorded deed, the reservation and exception in the Studebaker deed would be meaningless, unless it was intended to reserve to the Beeks the title to the soil itself, and not merely to except the easement which had been granted to the railroad company. The language in the deed to Studebaker is even less capable of a contrary construction than was that in the deed in the Hall case. The reservation could only refer to the title to the soil of the strip in question, even if the exception were held to refer to the easement alone.
The case of Reynolds v. Gaertner, 117 Mich. 532, 76 N. W. 3, is also a close parallel to that in hand. In that case a deed excepted from the premises conveyed 2.46 acres which formerly had been conveyed to a railroad company for use as a right of way. The railroad company, as it seems subsequently, abandoned the right of way. The contest was between the grantor and grantee in the first mentioned deed, both claiming title to the strip formerly occupied by the railroad as a right of way. The court held that the exception in the deed was an exception of the fee of the right of way, not merely an exception of the railroad company’s easement, and that the title to the land so excepted never passed to the grantee. Here, again, the language in the Studebaker deed, in that it both reserved and excepted the right of way, is less capable of the contrary meaning than that 'in the deed involved in the Reynolds case.
II. The claim that the second deed from the Beeks to the railroad company, conveying the 45.25 acres, conveyed to the railroad company the fee of the right of way reserved in their original deed of the easement to the railroad company might be conceded were it not for the fact that it was given
III. The claim that the identity of the reserving clause in the deed from the railroad company to the Beeks with that in the deed from the Beeks to Studebaker would compel the same construction on both deeds, thus carrying the fee of the right of way to Studebaker, would have much force were it not for the fact that the relation of the parties to the subject-matter in the two instances was different. As we have pointed out, the railroad company never had any claim to the fee of the strip of land here in question, except upon a condition which it never performed. Its deed to the Beeks was obviously for the purpose of reinvesting them with the title to the 45-acre tract because of its failure to perform
“In each case the equities of all the parties must be considered in arriving at the intent of the deed.”
There was no equity to sustain a reservation in the railroad company of the fee of this strip. Studebaker and the Pyle heirs, however, having accepted in 1879 from the Beeks, who had the equitable and, as we construe it, the legal title in the fee of this strip, a deed reserving it to the Beeks, in full satisfaction of the bond for a deed of the donation claim, can, at this late day, hardly assert an equitable claim to this strip.
Viewed in the light of all of the circumstances, and of the relation of the parties to the subject-matter, we believe that the trial court reached the correct result.
The judgment is affirmed.
Crow, C. J., Gose, and Main, JJ., concur.