Summary
In Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468, at page 762 of 180 Miss., at page 469 of 178 So., the Court said: "In construing deeds, the intention of the parties is sought to be effectuated, of course, but this intention must be found in the language of the instrument; so that effect must be given, if possible, to each item of the written contents, and no item shall be stricken or rejected so long as it may be harmonized with the other items.
Summary of this case from Sumter Lbr. Co. Inc. v. SkipperOpinion
No. 33006.
January 24, 1938.
1. DEEDS.
In construing deed, intention of parties is sought to be effectuated, but that intention must be found in language of instrument, and effect must be given, if possible, to each item, and no item should be rejected if in harmony with other items.
2. RAILROADS.
A deed conveying to railroad right of way across land and stating that northerly line should be a line parallel with center of main track of railroad and 100 feet distant on northerly side thereof, and westerly line a line running along west side of west leg of wye 15 feet distant from center line of wye track, did not convey land embraced within legs of wye.
3. RAILROADS.
That area within legs of railroad wye should be unobstructed and unoccupied did not give rise to implied grant, in right of way deed to a wye, of land within legs of wye.
APPEAL from the chancery court of Marion county. HON. BEN STEVENS, Chancellor.
T.J. Wills, of Hattiesburg, Edw. C. Craig, of Chicago, Ill., and H.D. Minor, of Memphis, Tenn., for appellant.
The railroad company entered into an agreement and contract with Patten and with Barnes for this right of way and lands embraced therein for the construction of its railroad. The language used in the deed is "Convey unto the Gulf Ship Island Railroad Company a right of way across and over my lands as follows: being a piece of land across which the tracks of said railroad are now laid etc."
The deed then particularly described the lands showing that already the main line tracks had been constructed and the Y. A Y is used to turn trains around. They are constructed in the shape of the letter Y with the opening ends of the Y intersecting the main line track, the character of which is a matter of common knowledge to everyone. It was desirable to the Railroad Company to own the lands within the Y so that in leaving the main line and in going in on one leg of the Y and throwing the switch and coming out on the other leg of the Y, so as to turn the locomotive or train of cars around, that the view might not be obstructed. It was essentially necessary that the railroad own and control the lands so that it could prevent buildings or structures of any kind being erected thereon so as to make more dangerous the operation of the train and create a hazard to the public generally.
It is shown here that High School Avenue crosses the main line track and crosses a part of the lands embraced in these deeds of conveyance. The fact that the property was located in a city and that the Y crossed one of the main streets, that the evidence in this record shows to be two numbered highways, made the necessity for the ownership and control of the land much greater. The deed conveyed these lands to the Railroad Company.
Territory of New Mexico v. U.S. Trust Co. of New York, 172 U.S. 171, 43 L.Ed. 407, 19 Sup. Ct. 128.
It is the contention of appellee that, while the conveyance embraced the land in question, it had not been used for railroad purposes; that it had been abandoned by the railroad and was not being used. The contention so made is without merit. The land was within the legs of the Y. The use of it to retain an unobstructed view while the trains were being handled was a constant use. The evidence shows that trains were turned on the Y every day except Sunday; that trains were being run over the main line track every day. The use for which the land was intended, when it was purchased, had not been changed, or even if it had been changed, the purpose of its use remained the same.
M.J. K.C.R.R. Co. v. Kamper, 88 Miss. 817, 41 So. 513.
Intention is the first and paramount object of inquiry where the question of abandonment is raised, for there can be no abandonment without the intention to abandon
1 C.J., page 6.
No abandonment can be presumed from a non-user of land from the time of its taking.
1 C.J., page 7, par. 8, and page 8, par. 11; Hummel v. Cumberland Valley R.R. Co., 175 Pa. 537, 34 A. 848.
The burden of proving an abandonment rests upon the owner who asserts it.
Adams v. Hodgkins, 42 L.R.A. (N.S.), 741; Hennessy v. Murdock, 137 N.Y. 317, 33 N.E. 330.
Appellant asserted in its bill of complaint that it had been in adverse possession of the said land for a long period of time and more than ten years. The proof showed that it had gone into possession of the tract of land, embraced in the deed, in 1900 and had continuously, uninterruptedly been in possession of the land, with all of the necessary elements of adverse possession, from the date of the deeds in 1900 down to the date of the trial of the case. It was not necessary for it to be in the actual occupancy of each and every part of the land embraced in the deed. Claiming under color of title, the deed, its occupancy of any part of the lands so conveyed would extend to all of the land embraced in the deed.
Native Lbr. Co. v. Elmer, 117 Miss. 720, 78 So. 703; Jones v. Gaddis, 67 Miss. 769, 7 So. 489; Mitchell v. Bond, 84 Miss. 72, 36 So. 148.
Hall Hall, of Columbia, for appellees.
There is a well settled rule of law to the effect that "an instrument is to be construed most strongly against the person who draws it."
Home Mutual Fire Ins. Co. v. Pittman, 71 So. 739, 111 Miss. 420.
Applying this rule, it must be assumed that the railroad company, in preparing the deeds in question, included a grant of every right and title which Patten and Barnes had agreed to convey. The record shows without dispute that the officials of the railroad company prepared the deeds here in question and had them ready for the signatures of the grantors when they were presented to the grantors for execution. This being true, the railroad company certainly cannot successfully claim something which is not included in these deeds. Each of these deeds provides: "I hereby convey unto the Gulf Ship Island Railroad Company a Right of Way across and over my lands as follows," and after which there follows a description of the land owned by the grantors. It is perfectly clear that nothing whatever was conveyed or intended to be conveyed except a mere right of way across the land.
A deed conveys only the property described therein and which it manifests an intention on the part of the grantor to convey.
Finkbine Lbr. Co. v. Saucier, 116 So. 736, 150 Miss. 446.
As we understand the law, when an unlimited right of way is conveyed, the company may use such parts of the land as may be desired or necessary for right of way purposes, and, if necessary, may even use all of it, but the company has no right or title to any portion which is not used for right of way purposes.
Alabama Great Southern Ry. v. McWhorter, 80 So. 839.
In the case at bar, only a right of way was granted, but the railroad is claiming the whole tract of land.
John T. Moore Planting Co., Ltd. v. Morgan's Louisiana T.R. S.S. Co., 53 So. 32; Louisiana Sulphur Mining Co. v. Brimstone R. Canal Co., 79 So. 325; Leader Realty Co. v. Taylor, 84 So. 650.
Even if the land had once been used for right of way purposes, and had been abandoned, such an abandonment, in view of the provisions of the deeds in question, would operate as a reversion of the land, even though no reversionary clause was contained in the deeds.
Abercrombie v. Simmons, 114 A.S.R. 509; Wilczinski v. L.N.O. T. Ry., 66 Miss. 595; Bond v. T. P. Ry., 160 So. 406.
It is well settled that in construing a deed all of the words used in it must be taken into consideration, and the purpose of the instrument is to be determined from a consideration of all the words which it contains.
Argued orally by T.J. Wills, for appellant, and by Lee D. Hall, for appellees.
The issue before us is the proper construction, particularly as to description, of the following deed:
"For and in consideration of the public and private advantages and the sum of one dollar to me in hand paid the receipt of which is hereby acknowledged I hereby convey unto the Gulf Ship Island R.R. Co. a Right of Way across and over my land as follows: Being a piece of land across which the tracks of said railroad company are now laid. The northerly lines of which shall be a line running parallel with the center line of the main track of said railroad and one hundred feet (100) distant on the northerly side thereof. The westerly line being a line running along the west side of the west leg of the Y. and fifteen feet distant from the center line of the said Y. track following the curve, both lines running from lands of C.R. Foxworth to lands of C.R. Foxworth.
"Witness my signature this 8th day of November A.D. 1900" — duly signed and acknowledged.
At the time of the execution of this deed there was a wye partially located on the described land, the legs of which, together with the main line, enclosed the plot or portion of land here in dispute. Appellees contend that the deed carried title only to a strip 100 feet wide north and east of the main line, and a strip 50 feet wide south and west of the center of the main line and parallel therewith, and a strip 15 feet wide on each side of the center of the wye, but conveyed no title to the railroad company to the remainder of the land within the legs of the wye. The railroad insists that the deed carried title also to all the land within the described boundaries, including that which is embraced within the legs of the wye. The chancellor held with the contention of appellees, and we think correctly so.
It will be observed that, looking to its opening or leading words, the deed did not convey all the lands within the outside boundaries as delineated, but conveyed a right of way over and across the lands so described. In order to arrive at the construction contended for by the railroad company, it would be necessary to strike from the deed the primary reference to or recital about the right of way. In construing deeds, the intention of the parties is sought to be effectuated, of course, but this intention must be found in the language of the instrument; so that effect must be given, if possible, to each item of the written contents, and no item shall be stricken or rejected so long as it may be harmonized with the other items. Dunn v. Stratton, 160 Miss. 1, 7, 133 So. 140. To construe this deed as insisted by the railroad company would mean that, when an owner conveys a right of way over his land described, for instance, as section 5, Tp. 3 N., R. 18 W., the recital or provision as to the right of way would be stricken out and the deed would then be made to carry title to the whole section, a position which would be manifestly untenable.
The railroad contends, however, that the area within the legs of the wye must be unobstructed and unoccupied in order that the operations of trains on the wye may be safe both as to the railroad and to the public, and that therefore a right of way deed to a wye carries, by implication, a grant of the land within the legs of the wye, although this might be as much as an acre, or more, of valuable land, in a commercial area. No direct authority is cited for so broad a contention, and we must conclude that, if maintainable, some precise authority out of the multitude of cases on the subject of rights of way could be found and would be cited. We recur, therefore, to the observations found in the first sentence of the concluding paragraph of the opinion in Johnson v. State, 154 Miss. 512, 513, 122 So. 529.
It will be observed that the deed contains no reference to the section, township, or range within which the lands are located, nor to any plat or survey, municipal or otherwise, although the caption is "State of Mississippi, County of Marion, Village of Columbia." The parties doubtless considered the caption as sufficient, and they have raised no point in this regard. Something is said about whether the railroad acquired a fee-simple title to the right of way or a mere easement. It is not necessary to go into that question, since the railroad company acquired no title of any character to that portion adjudged by the chancellor to belong to appellees.
Affirmed.