Opinion
No. CV 82-11-113
Decided December 30, 1983.
Real Property — Action to enforce a reverter — "Fee simple determinable," defined — Instrument creating fee must contain limiting words — Provision for reverter required, when — Applicable statute of limitations in R.C. 2305.04.
O.Jur 3d Estates §§ 15, 23.
1. A "fee simple determinable" is created by an instrument providing that the estate shall automatically terminate upon the happening of a stated event.
2. In order to create a fee simple determinable the instrument must contain limiting words, such as "so long as," and if these words are contained in the habendum clause rather than in the granting clause, then there must also be a provision for forfeiture or reversion.
O.Jur 2d Limitation of Actions § 27.
3. The appropriate statute of limitations to be applied in an action to enforce a reverter is that of twenty-one years, contained in R.C. 2305.04.
Mr. Stephen E. Keister, prosecuting attorney, for plaintiff.
Messrs. Bieser, Greer Landis and Mr. Edward H. Siddens, for defendant.
Plaintiff, Van Wert County Board of Commissioners, filed its complaint on November 30, 1982 alleging that a piece of property located adjacent to the Van Wert County Courthouse was deeded on August 7, 1981 to the Pittsburgh, Ft. Wayne and Chicago Railway Co., which conveyance was subject to a reversion in that said transfer was "so long as said strip may be required or used for passenger station purposes only; but in the event that said strip shall be finally vacated and abandoned for passenger station purposes, then, and in that event the same shall revert to Van Wert County"; and that the real estate has been vacated and abandoned for such purposes; and praying for a declaratory judgment ordering the property reverted to the county. The defendant, Consolidated Rail Corporation ("Conrail"), the successor in interest to the Pittsburgh, Ft. Wayne and Chicago Railway Co., admits that on or about April 30, 1971, passenger trains ceased stopping at the property in question for the purpose of permitting passengers to enter or leave passenger trains.
It is the opinion of the court that a finding must be made in favor of the county based upon the following:
(1) the limiting phrase contained in the habendum clause of the deed, along with a reverter clause, was specific as to the limitation, purpose and forfeiture;
(2) the intent of the limiting phrase, while clear within the "four corners" of the deed, is further supported by official transcripts of the commissioners' journal which express the intent to "lease" the property to the railroad, and when the stated purpose is over, to have the property returned to the county;
(3) the defendant admits that the property is no longer being used for passenger station purposes, said usage having ceased finally on April 30, 1971; and
(4) plaintiff is not barred by the statute of limitations provision of R.C. 2305.04.
R.C. 5302.04 provides that a conveyance of an estate shall be deemed to include all rights, easements, privileges and appurtenances unless the contrary is stated in the deed. An estate which descends as a fee simple but which may or will terminate is generally known as a "qualified fee." Among qualified fees, there are generally three types, the classification of which depends upon the manner in which the estate may or will terminate. A "fee simple determinable" is created by an instrument providing that the estate shall automatically terminate upon the happening of a stated event. 41 Ohio Jurisprudence 3d (1983) 443, Estates, Section 15.
In determining whether the present conveyance is a fee simple determinable, we must first ascertain the intent of the parties at the time of the conveyance, for it is an accepted principle of construction that all doubts will be resolved against a finding that such an estate exists. In the present case, the deed in question states in the habendum clause, in very plain language, that the defendant's title will be defended "for so long as said strip may be required or used for passenger station purposes only" (emphasis added) and then continues with the reverter language stating, "but in the event that said strip shall be finally vacated and abandoned for passenger station purposes, then, and in that event the same shall revert to Van Wert County." The court finds that this language alone would sufficiently express the intent to convey a determinable fee; however, there is further evidence presented to support this intent. Prior to the grant in question, the commissioners journalized a resolution which speaks of the grant as a "lease" to the railroad and further states, "said ground to be used solely for [passenger] depot purposes and to revert to county when said Pittsburgh, Ft. Wayne and Chicago Rail Road Company cease [ sic] to so use it."
Therefore, having found that a fee simple determinable was in fact intended, we must determine whether it was properly created. It is generally accepted that a bare statement within a deed specifying a use and nothing more will fail to create a qualified fee. Generally, the usage of the magic words "so long as" will be sufficient to create a determinable fee; however, in Ohio, a much cited case, In re Copps Chapel Methodist Episcopal Church (1929), 120 Ohio St. 309, has held otherwise. The syllabus of Copps Chapel states that the usage of these words in the habendum clause, "without any provision for forfeiture or reversion," will not serve to limit or qualify the grant. Thus, in Ohio, it is necessary, in order to create a fee simple determinable, that there must be the limiting words, such as "so long as," and if these words are contained in the habendum clause rather than in the granting clause, then there must also be a provision for forfeiture or reversion. The court finds that both exist in the present case and that, therefore, there exists a fee simple determinable.
The next consideration is whether the qualifying event recited in the limiting phrase has occurred. The two phrases used in the deed in question are: "so long as said strip may be required or used for passenger station purposes only" and "in the event that said strip shall be finally vacated and abandoned for passenger station purposes." The defendant argues that the property has not been finally vacated and abandoned for passenger station purposes because it stands ready, willing and able to use the property for such purposes. This argument is fatuous since by defendant's own admission no passenger trains have stopped at the depot since April 30, 1971, or nearly thirteen years ago. The court further takes notice that Conrail is not in the passenger transportation business and it is not anywhere argued that Conrail stands ready to reinstitute such business. The defendant might likewise argue that it stands ready to utilize the premises for any number of purposes which are either impossible or highly unlikely, but the truth is that rail passenger service in this country has declined to a near nonexistence in non-metropolitan areas, and that its revival is a most unlikely event for the future. Conrail does admit that it uses this property for other purposes related to the operation of the railroad, but none of these has anything to do with providing the citizens of Van Wert County with rail passenger service. The Van Wert County Board of Commissioners granted this property to the railroad for one purpose only, and that was for the strategic location of a passenger terminal, and this property has not been so used for many years by the defendant. In fact, when the railroad was still in the passenger business and maintained the passenger depot at this location, the railroad had at least two other locations in the city of Van Wert where the freight, signal maintenance and other functions of the railroad were housed. The railroad should not now complain that since it has disposed of these other facilities, presumably profitably, that it should not be deprived of premises which it bargained away from the county for the sole purpose of using these premises as a passenger depot. The court therefore finds that the event specified in the deed, being the abandonment of the premises for passenger station purposes, has occurred and that the forfeiture provisions contained in the deed should now be enforced.
The defendant further argues that the appropriate statute of limitations to be applied in this case is that of ten years, contained in R.C. 2305.14. This argument is based upon a statement contained in the case of Williams v. Haller (1912), 13 Ohio N.P. (N.S.) 329. The Williams case can be distinguished from the present situation in many respects and the court finds that holding not to be applicable to this case. The court finds that an action to enforce a reverter is similar to an action in adverse possession and that the proper statute of limitations would be found in R.C. 2305.04, being twenty-one years, and that this action was brought well within the applicable time period.
Judgment for plaintiff.