Kozak v. State, Game and Parks Commission , 189 Neb. 525 ( 1973 )

White, C. J.,

dissenting.

I would reverse. It is certainly true, as the majority holds, that the plaintiff in an ejectment action must recover, if at all, on the strength of his own title rather than the weakness of his adversary’s title. But I would hold that the plaintiffs herein have sufficient title to the disputed strip to prevail, having acquired that title as the successors in interest to the fee simple formerly held by Mary Kozak.

When the C., K. & N. Railway condemned the land in question in 1886, it thereby acquired a mere easement, and the fee simple title remained in the original owner, L. L. Kirby. See, Roberts v. Sioux City & Pacific R.R. Co., 73 Neb. 8, 102 N. W. 60 (1905). The continuity of fee title to the quarter is thereafter clearly unbroken until the deed here in controversy was executed. That deed, from Mary Kozak, granted to Ladd J. Hubka “The SW% except the railroad * * * 154 acres, more or less.” The majority holds that the fee title to the land underlying the right-of-way did not pass by this conveyance. I would hold that it did.

To begin with, one must inquire into the probable intent of the grantor, Mary Kozak. It cannot seriously be contended that, in conveying the quarter, she purposely withheld from her grantee the irregular strip of land on which the railroad had its track. In Barker v. Lashbrook, 128 Kan. 595, 279 P. 12 (1929), the court construed a deed which conveyed 120 acres “Less one acre in southeast comer for school purposes and 3.81 acres taken by the Kansas City, Wyandotte & Northwestern Railway, containing 117.19 acres, more or less.” In holding that this language was sufficient to vest fee title to the entire 120 acres in the grantee the court said: “A reservation is always construed more strictly than a grant * * * and it is difficult to conclude that businesslike people, able to own, sell and buy land, could reasonably have had in mind, at the time of the sale and purchase the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency.” Ildi. at 598.

Similarly, it cannot have been the intention of the grantee, Ladd J. Hubka, to accept such a tract. In Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir., 1939), the court was presented with a deed which by its terms conveyed “* * * 162.00 acres of land save and except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.” Holding that this conveyed the entire 162 acres the court said: “If construed as appellees would have it, a result both unreasonable and clearly unintended would have been produced. For it is inconceivable that Gregory, plaintiffs’ grantee, would have bought a tract of land split into two tracts by a small narrow strip * * *. If construed as appellant contends it should be, every part of the deed would be harmonized and reconciled, and a result would be produced both reasonable and without doubt, in accordance with what the parties to the deed intended.” Id. at 780.

The construction of such language so as to except from the conveyance a strip of land such as that involved here is not only contrary to the probable intent of the parties, but also violates public policy. As far back as 1895 Justice Taft said in Paine v. Consumers’ Forwarding & Storage Co., 71 F. 626, (6th Cir., 1895): “The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases.”

In Bowers v. Atchison, Topeka & Santa Fe Ry. Co., 119 Kan. 202, 237 P. 913, the court noted: “Experience revealed, that separate ownership of long, narrow strips of land distinct from the territory adjoining on each side was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.”

In short, courts have chosen, whether for reasons of public policy or because of the probable intent of the parties, to construe these types of clauses not as reservations, but as limitations. Jennings v. Amerada Petroleum Corp., 179 Okla. 561, 66 P. 2d 1069 (1937). In cases with language seemingly far more clear than that here in question courts have nonetheless held that the grantor has parted with the entire estate. The additional language is recognized as merely that of acknowledgment of a prior estate. As to the specification of a lesser acreage (in this case, 154 rather than 160) the court in Barker v. Lashbrook, supra, pointed out that: “The most apparent purpose of such statement of acreage excepted for the purpose named and statement of acres remaining was to protect the grantor against the warranties of the deed and to indicate that the railroad held the dominant estate to the three acres and she only the servient estate thereto, leaving only one hundred and seventeen acres free from a dominant right of the railroad company.” (Emphasis supplied.) Cases reaching similar results are numerous. See, Penn v. Holland (Tex. Civ. App., 1937), 105 S. W. 2d 351, where the deed provided: “* * * save and except three (3) acres of land out of said tract, the same having been conveyed by me to the Houston Galveston Electric Railway Company.”

The same arguments apply, a fortiori, to the language contained in the plaintiffs’ deed from Ladd J. Hubka. It grants to them “The SW except railroad right of way.” This language clearly manifests no intent on the part of the grantor to reserve the servient estate. Rather it conveys the fee, acknowledging a dominant estate in the railroad.

Thus in September of 1968 the state of the title to the quarter section here in controversy was: Fee simple in Jerry and Julia Kozak (grantees of Ladd J. Hubka) subject to a right-of-way in the Rock Island Railroad (successor to the C., K. & N.). When, on September 20, 1968 the Rock Island attempted to convey its right-of-way to the Game and Parks Commission, the right-of-way immediately reverted to the Kozaks and merged with their fee. If a railroad attempts to alienate such a right-of-way for any purpose other than railroad operation the right at once reverts to the owner of the servient estate. Roberts v. Sioux City & Pacific R. R. Co., supra. Such reversion is expressly not subject to the statutes abolishing rights of reverter and similar future interests. § 76-2,104, R. R. S. 1943. Therefore, subsequent to September 20, 1968, the entire fee title was vested in the Kozaks, subject to no prior estates or rights. Their title being good, they should prevail.

Boslaugh and Newton, JJ., join in this dissent.