Summary
In Morrison, the Court found that the deed at issue conveyed an easement and, in particular, a "floating easement" because "[n]o particular strip was identified with that certainty which a conveyance of the fee would require."
Summary of this case from Gregory v. United StatesOpinion
No. 36759.
April 26, 1948.
1. RAILROADS.
Grant by deed of a right of way through certain land reserving to grantor the privilege of using timber and cultivating parts not used in operation of railroad and identifying no particular strip with a certainty required by conveyance of a fee, created only a "floating easement" or "right of user" (Code 1942, sec. 831).
2. COVENANTS.
A "covenant to warrant" in the habendum clause is not a general but at most a "special warranty".
3. COVENANTS.
Under deed granting right of way to railroad reserving privilege of using timber and cultivating parts not used to grantor, wherein grantor covenanted to warrant and defend against any and all persons claiming through him, grantor's covenant was a "guaranty" but not a "grant" where that which was granted was, both by text of deed and context, a mere right of user (Code 1942, sec. 831).
4. EASEMENTS.
Where an easement will satisfy the purpose of the grant, a fee will not be included in the grant unless expressly provided.
5. RAILROADS.
Under deed granting railroad a right of way through land clearly intending an easement rather than a grant in fee, fact that grantee has for many years paid taxes assessed upon the subject strip nor other circumstances in point only if there had been ambiguity in language of the instrument, could not create an implication of a grant in fee.
6. EASEMENTS.
No implication of a fee can arise where by the terms of the deed, there are conveyed rights adequate to the grantee's special purpose which is consistent with the owner's retention of the fee.
7. ADVERSE POSSESSION. Railroads.
In suit by grantor's successors to quiet title to mineral rights under railroad right of way, deposition of railroad relevant only upon issues of contemporaneous construction of deed as granting a fee rather than right of way, and adverse possession, purporting to sustain these issues only by disclosure of railroad grantee's legal conclusions and assumptions, and its exclusive possession of the land, was properly excluded where there was never any defiance by railroad of grantor's title.
8. ADVERSE POSSESSION.
Under deed granting railroad right of way through certain land, exclusive use of surface by grantee was consistent with its mere right of way, and its permissive user was inconsistent with acquisition of prescriptive rights.
9. BOUNDARIES. Mines and minerals.
Generally conveyances of land bordering on a railroad easement of right of way carry title in fee to the center line of the easement as to subsurface minerals, and reversionary rights to the surface.
10. BOUNDARIES. Mines and minerals.
Where heirs inherited land subject to deed granting railroad a right of way in the nature of an easement, made partition of the lands among themselves by mutual conveyances and thereafter conveyed mineral interests to third parties, third party grantees took title to the mineral interests to the center line of the easement and not merely to the margins of the way.
APPEAL from the Chancery Court of Jasper County.
Cameron Wills, of Meridian, and J. Blanc Monroe of New Orleans, La., for appellant.
Seizin, being the concept of ownership incident to an estate of inheritance or a fee, includes possession, either actual or constructive.
Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586; Planters' Oil Mill v. Yazoo M.V.R. Co., 153 Miss. 712, 121 So. 138; Code of 1942, Secs. 778, 783, 831, 836, 839, 840, 843, 845, 847, 849, 905; 26 C.J.S. 180; Pollock and Maitland, History of English Law, Vol. 2, p. 29; 6 Co. Rep. 57 b.; Smith on Real and Personal Property, pp. 94, 95; Maitland, Constitutional History of England, p. 112.
Easements are interests owned by one out of possession, or, at most, by one whose permission is permissive and restricted.
Ackroyd v. Smith, 19 L.J.C.T. 315, 10 Eng. Rul. Cas. 1; 2 Pollock and Maitland's History of English Law 145; 28 C.J.S. 633, 637; Annotation, 47 A.L.R. 552.
Railroad rights of way, where granted as mere easements, are in the exclusive possession of the railroad using them, and in order for seizin to continue in the owner of the servient estate, there must be muniments of title which outweigh the exclusive possession and presumptive seizin of the occupant.
Wilmot v. Yazoo M.V.R. Co., 76 Miss. 374, 24 So. 701; Paxton v. Yazoo M.V.R. Co., 76 Miss. 536, 24 So. 536; Alabama V.R. Co. v. Joseph, 125 Miss. 454, 87 So. 421; Illinois Cent. R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150, 92 Am. St. Rep. 612; Illinois Cent. R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Tennessee C. R. Co. v. East Alabama R. Co., 75 Ala. 516, 51 Am. Rep. 475; 47 A.L.R. 552.
The deed from Mrs. Taylor operated to convey seizin in fee to appellant.
Wilmot v. Yazoo M.V.R. Co., supra; Paxton v. Yazoo M.V.R. Co., supra; Longmire v. Mars, 124 Miss. 77, 86 So. 753; Allen v. Chaffee, 85 Miss. 766, 38 So. 186; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Houston v. National Mut. Bldg. Loan Ass'n, 80 Miss. 31, 31 So. 540, 92 Am. St. Rep. 565; Yazoo M.V.R. Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239; Boarman v. Catlett, 13 Smedes M. 149; Raley v. Raley, 121 Miss. 555, 83 So. 740; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477; Ricks v. Merchants National Bank Trust Co., 191 Miss. 323, 2 So.2d 344; United States v. Union P.R. Co., 91 U.S. 72, 79, 23 L.Ed. 224, 228; Ballard v. Louisville N.R. Co., 9 Ky. L. Rep. 523, 5 S.W. 484; Stevens v. Galveston H. S.A.R. Co. (Tex.), 212 S.W. 639; Radetsky v. Jorgensen, 70 Colo. 423, 202 P. 175; Arkansas Improvement Co. v. Kansas City S.R. Co., 189 La. 921, 181 So. 445; Johnson v. Valdosta M. W.R. Co., 169 Ga. 559, 150 S.E. 845; Midstate Oil Co. v. Ocean Shore R. Co., 93 Cal.App. 704, 270 P. 216; Marland v. Gillespie, 168 Okla. 376, 33 P.2d 207; New Mexico v. U.S. Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407; Alabama Great Southern R. Co. v. McWhorter, 202 Ala. 405, 80 So. 839; Chouteau v. Missouri P.R. Co., 122 Mo. 375, 22 S.W. 458; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208; Danielson v. Woestemeyer, 131 Kan. 196, 293 P. 507; Kansas City Southern R. Co. v. Sandlin, 173 Mo. App. 384, 158 S.W. 857; Code of 1942, Secs. 831, 832, 833, 839, 843-847, 7726, 7738; 18 C.J. 187, Sec. 72; 62 C.J. 408; 24 C.J.S. 833; 26 C.J.S. 189, Sec. 16, p. 209, Sec. 28; 31 C.J.S. 22, 23, Sec. 10; Pollock and Maitland, Vol. 2, p. 83.
The deed to appellant was contemporaneously construed by the parties as creating a fee simple title.
Sumter Lumber Co. v. Skipper, supra; Vinegar Bend Lumber Co. v. Churchwell, 123 Miss. 807, 86 So. 299; Overby v. Burnham, 190 Miss. 435, 200 So. 591; Hattiesburg Plumbing Co. v. A.E. Carmichael Co., 80 Miss. 66, 31 So. 536; Kerl v. Smith, 96 Miss. 827, 51 So. 3; Mixon v. Green, 187 Miss. 343, 193 So. 8; Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768; Town of Como v. Pointer, 87 Miss. 712, 40 So. 260; Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Cummings et al. v. Midstates Oil Corporation, 193 Miss. 675, 9 So.2d 648; Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Joy v. St. Louis, 138 U.S. 44, 34 L.Ed. 843, 857; Code of 1942, Sec. 9770; 26 C.J.S. 346.
The language of the instrument itself shows that the grantor intended to convey everything but what she reserved.
A deed should be construed against the grantor and in favor of the grantee.
Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Fatherree et al. v. McCormick, 199 Miss. 248, 24 So.2d 724; Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; 22 C.J.S. 322; 16 Am. Jur. 530.
Wilbourn, Miller Wilbourn, of Meridian, for appellee and cross-appellant, E.A. Morrison, Trustee.
The court below properly construed the deed from Mrs. E.K. Taylor to appellant, New Orleans Northeastern Railroad Company, dated January 23, 1882, as conveying only a right of way over and across the lands described therein, for the construction and operation of a railroad thereon and correctly held that such deed was not effective to invest the grantee with any right, title or interest in and to the oil, gas and minerals in, on and under such right of way.
Hart v. Gardner, 74 Miss. 153, 20 So. 877; Hill v. Woodward, 100 Miss. 879, 57 So. 294; Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Williams v. Patterson et al., 198 Miss. 120, 21 So.2d 477; East Alabama R. Co. v. Doe, 114 U.S. 340, 5 S.Ct. 869, 29 L.Ed. 136; Jones v. Van Bochave, 103 Mich. 98, 61 N.W. 342; Danielson v. Woestemeyer, 131 Kan. 196, 293 P. 507; Kansas City Southern R. Co. v. Sandlin, 173 Mo. App. 384, 159 S.W. 857; Alabama Great Southern R. Co. v. McWhorter, 202 Ala. 405, 80 So. 839; Sherman et al. v. Petroleum Exploration et al., 280 Ky. 105, 132 S.W.2d 768, 132 A.L.R. 137; Brightwell v. International Great Northern R. Co., 121 Tex. 338, 49 S.W.2d 437; Right of Way Oil Co. v. Gladys City Oil, Gas Manufacturing Co., 106 Tex. 93, 157 S.W. 737, 51 L.R.A. (N.S.) 268; 16 Am. Jur. 577, Sec. 245; 132 A.L.R. 136, p. 157.
The court below properly held that appellant's possession, use and occupation of the right of way was such only as was usual and common under a deed for a right of way only and was not inconsistent with the continued ownership of Mrs. E.K. Taylor of the fee to the lands under the right of way and was not such a possession, use and occupation as would give notice of any claim to ownership of the fee in said lands and the minerals thereunder, nor such use, occupation and possession as could under the facts in this case give title in fee to appellant railroad company by adverse possession.
Williams v. Patterson et al., supra; Nicholson v. Board of Mississippi Levee Commissioners et al., 203 Miss. 71, 33 So.2d 604; Whitworth et al. v. Mississippi State Highway Commission, 203 Miss. 94, 33 So.2d 612.
The court below erred in construing the division deeds and the subsequent deeds from the various grantees of the divisions deed as extending to the center of the right of way of the railroad and erred in adjudging that any one other than the cross-appellant had any interest in the minerals in, on and under the right of way.
Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625; Goff v. Avent, 122 Miss. 86, 84 So. 134; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Herod v. Robinson, 149 Miss. 354, 115 So. 40; Tuskeegee Land Security Co. v. Birmingham Realty Co., 161 Ala. 542, 49 So. 378, 23 L.R.A. (N.S.) 992; Haight v. Hamor, 83 Me. 453, 22 A. 369; Hunt v. Brown, 75 Md. 483, 23 A. 1020; Peabody v. Sadtler, 63 Md. 533; Stuart v. Fox, 129 Me. 417, 152 A. 413, 76 L.Ed. 498; Alabama, Great Southern R. Co. v. Owens (Ala.), 118 So. 332; Rio Bravo Oil Co. et al. v. Weed et al., 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Couch v. T. P.R. Co., 99 Tex. 464, 90 S.W. 860; Illinois Cent. R. Co. v. Hassenwinkle, 232 Ill. 234, 83 N.E. 815, 15 L.R.A. (N.S.) 139; Detroit v. Arbiter, 252 Mich. 99, 233 N.W. 179; Georgia R. B.K. Co. v. Hamilton, 59 Ga. 171; Perry v. Keith, 93 Me. 433, 45 A. 511; 8 Am. Jur. 774, Sec. 37, p. 776, Sec. 39, p. 781, Sec. 49; 16 Am. Jur. 601, Sec. 289; 9 C.J. 198, Secs. 86, 87, p. 201, Sec. 93, p. 202, Sec. 95; 11 C.J.S. 594, Sec. 45, note 83; 2 A.L.R. 29.
Butler Snow, of Jackson, for appellees, T.F. Hodge et al.
The deed from Mrs. E.K. Taylor to the New Orleans Northeastern Railroad conveyed only an easement over the land and did not convey a fee simple title to the land.
Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Wilmot v. Yazoo M.V.R. Co., 76 Miss. 374, 24 So. 701; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477; Whitworth et al. v. Mississippi State Highway Commission, 203 Miss. 94, 33 So.2d 612; Central of Georgia R. Co. v. Lawley, 33 Ga. App. 375, 126 S.E. 273; Lake Erie W.R. Co. v. Ziebarth, 6 Ind. App. 228, 33 N.E. 256; Moore Planting Co. v. Morgan's La. T.R. S.S. Co., 126 La. 840, 53 So. 22; Uhl v. Ohio River R. Co., 51 W. Va. 106, 41 S.E. 340; East Alabama R. Co. v. Doe, 114 U.S. 340, 29 L.Ed. 136; Sherman v. Petroleum Exploration et al., 280 Ky. 105, 132 S.W.2d 768, 132 A.L.R. 137; Simpson v. Brown, 162 Ga. 529, 134 S.E. 161, 47 A.L.R. 865; Alabama Great Southern R. Co. v. McWhorter, 202 Ala. 455, 80 So. 839; Polk v. Ball, 149 F.2d 263; Tallman v. Eastern Ill. Peoria R. Co., 379 Ill. 441, 41 N.E.2d 537; 14 Miss. Law Journal, p. 114; 132 A.L.R. 142, 144, 145, 172, 179, 187; 16 Am. Jur. 575; 44 Am. Jur., Railroads, Secs. 97-100, 102; 51 C.J. 535, Sec. 203; 5 A.L.I., Restatement of Property, p. 2966, Sec. 455.
The railroad acquired no title by adverse possession or prescription. The use and occupancy by the railroad being permissive, it could not constitute an adverse and hostile holding until actual notice to the owner of the assertion of a hostile right.
Williams v. Patterson, supra; 1 Am. Jur. 871, Sec. 137; A.L.I., Restatement of Property, p. 2933, Sec. 458.
The use by the railroad was attributable to an easement and was consistent with the easement and therefore could not be hostile to the owner of the fee.
Williams v. Patterson, supra; Wilmot v. Yazoo M.V.R. Co., supra; Paxton v. Yazoo M.V.R. Co., 76 Miss. 536, 24 So. 536; Brown v. Weare, 152 S.W.2d 649; 51 C.J., Railroads, Secs. 204, 233, 238; 44 Am. Jur., Railroads, Secs. 126, 129, 133, 141, 142, 150.
A railroad acquires by prescription or adverse possession only an easement in a right of way and not the fee.
Meyer v. Pittsburgh, C.C. St. L.R. Co., 63 Ind. App. 156, 133 N.E. 443; 44 Am. Jur., Railroads, p. 314, Sec. 99, p. 341, Sec. 128; 127 A.L.R. 519; 5 A.L.I., Restatement of Property, p. 2992, Sec. 477.
A railroad right of way usually is an easement merely. This is true whether it is acquired by eminent domain, adverse possession or conveyance.
Wilmot v. Yazoo M.V.R. Co., supra; Paxton v. Yazoo M.V.R. Co., supra; Williams v. Patterson, supra; 44 Am. Jur., Railroads, Secs. 97, 98, 99, 100, 102, 129; 51 C.J., Railroads, Secs. 203, 204, note 3.
The conveyance to appellant railroad by Mrs. Taylor was not a transfer of land to it in fee.
McInnis v. Pickett, 65 Miss. 354, 3 So. 660; Wilmot v. R. Co., supra; Paxton v. Yazoo M.V.R. Co, supra; Williams v. Patterson, supra; Kansas City, M. B.R. Co. v. Spencer, 72 Miss. 491, 17 So. 168; Gulf S.I.R. Co. v. Allen, 145 Miss. 415, 110 So. 844; Western Union Tel. Co. v. Louisville N.R. Co., 107 Miss. 626, 65 So. 650; Grace v. Gulf C.R. Co. (Miss.), 25 So. 875; Sherman v. Petroleum Exploration et al., 280 Ky. 105, 132 S.W.2d 768; Simpson v. Brown, 162 Ga. 529, 134 S.E. 161; Alabama Great Southern R. Co. v. McWhorter, supra; New Mexico v. U.S. Trust Co., 172 U.S. 171, 43 L.Ed. 407; Ballard v. Louisville N.R. Co., 9 Ky. L. Rep. 523, 5 S.W. 484; Stevens v. Galveston H. S.A.R. Co. (Tex.), 212 S.W. 693; Radetsky v. Jorgenson, 70 Colo. 423, 202 P. 175; Arkansas Improvement Co. v. Kansas City S.R. Co., 189 La. 921, 181 So. 445; Johnson v. Valdosta M. W.R. Co., 169 Ga. 559, 150 S.E. 845; Midstate Oil Co. v. Ocean Shore R. Co., 93 Cal.App. 704, 270 P. 216; Marland v. Gillespie, 168 Okla. 376, 33 P.2d 207; 16 Am. Jur. 471, 575, 636; 44 Am. Jur. 362, Sec. 149; 47 A.L.R. 165; 132 A.L.R. 144; 51 C.J. 539, Sec. 203.
The conveyance to the railroad is not ambiguous and therefore any alleged practical construction may not be looked to; and in any event, no acts of the parties have construed the deed as being a fee simple to the railroad.
Sumter Lumber Co. v. Skipper, supra; Cummings v. Midstates Oil Corporation et al., 193 Miss. 675, 9 So.2d 648; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Whitworth v. Mississippi State Highway Commission, supra; Nicholson v. Mississippi Levee Commissioners, 203 Miss. 71, 33 So.2d 604; Meyercort v. Warrington (Miss.), 19 So.2d 433; Uhl v. Ohio River R. Co., 51 W. Va. 106, 41 S.E. 340; Hurd v. General Electric Co., 215 Mass. 358, 102 N.E. 444; Roxana Petroleum Corporation v. Sutter, 28 F.2d 159; Federal Crude Oil Co. v. Yount-Lee Oil Co. et al., 103 F.2d 171; Joslin v. State, 146 S.W.2d 208; Jennings v. Amerada Petroleum Co., 179 Okla. 561, 66 P.2d 1069; Roxana Petroleum Co. v. Corn, 28 F.2d 168; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; N.E.R. Co. v. Hastings, A.C. 260, 263; Cox v. Campbell, 143 S.W.2d 361; Blake v. Cuneo, 111 P.2d 485; Smith v. Hall, 103 Iowa 95, 72 N.W. 427; Code of 1942, Sec. 9770; 8 Am. Jur., Boundaries, Secs. 5, 53; 16 Am. Jur., Deeds, Secs. 174, 289; 19 C.J. 262; 26 C.J.S. 346, Sec. 93.
Conveyances bounding land "east of the railroad" or "west of the railroad," as the case may be, carry title to the center of the railroad.
Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625; The Magnolia v. Marshall, 39 Miss. 109; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Maynard v. Weeks, 41 Vt. 617; Church v. Stiles, 59 Vt. 642, 10 A. 674; Rice v. Clear Spring Coal Co., 186 Pa. 49, 40 A. 149; Center Bridge Co. v. Wheeler H. Co., 86 Conn. 585, 86 A. 11; Wright v. Willoughby, 79 S.C. 438, 60 S.E. 971; Foster v. Foster, 81 S.C. 307, 62 S.E. 320; Boney v. Cornwell, 117 S.C. 426, 109 S.E. 271; Roxana Pet. Co. v. Sutter, supra; Roxana Pet. Co. v. Jarvis, supra; Emrich v. Jarvis, 121 Kan. 876, 274 P. 1113; Rio Bravo Oil Co. v. Weed, supra; Federal Crude Oil Co. v. Yount-Lee Oil Co. et al., supra; Cox v. Campbell, supra; Joslin v. State, supra; Cantley v. Gulf Products Co., 143 S.W.2d 912; Cuneo v. Champlin Refining Co., 62 P.2d 82; Blake v. Cuneo, 111 P.2d 485; Oklahoma City v. Dobbins, 117 P.2d 132; Kassner v. Alexander Drug Co., 147 P.2d 979; Eureka Real Estate Ins. Co. v. Southern Co., 200 S.W.2d 328; Jennings v. Amerada Pet. Co., supra; Roxana Petroleum Co. v. Corn, supra, Gulf Production Co. v. Warner, 99 S.W.2d 616; Peterson v. Holland, 189 S.W.2d 94; Stuart v. Fox, 129 Me. 407, 152 A. 413; Thompson v. Hickman, 1 Ch. 550; Cross v. Bernstein, 8 La. App. 380; Williams v. Savannah, 94 Ga. 540, 20 S.E. 487, 85 A.L.R. 408; I.C.R. Co. v. Hasenwinkle, 232 Ill. 224, 83 N.E. 815; Alabama Great Southern R. Co. v. Owens, 218 Ala. 180, 118 So. 332; Couch v. T. P.R. Co., 99 Tex. 464, 90 S.W. 860; Code of 1942, Sec. 7781; 18 C.J. 268, Sec. 229; 8 Am. Jur., Boundaries, Secs. 22, 25, 29, 36; 16 Am. Jur. 537, Sec. 175; 85 A.L.R. 404, Annotation, 407, 409.
Argued orally by Ben F. Cameron, for appellant, and by R.E. Wilbourn and George Butler, Jr., for appellee.
On January 23, 1882, Mrs. E.K. Taylor executed to appellant a deed in the following form:
"Know All Men by These Presents, that for and in consideration of the benefits to accrue to me by the construction of the New Orleans and Northeastern Railroad, and for the sum of $1.00 to me in hand paid by said company, I hereby grant, bargain, sell and quitclaim unto the said New Orleans and Northeastern Railroad Company, a right of way for 200 feet, through the following lands, to-wit:
"W 1/2 SW 1/4 Sec. 28 E 1/2 S.E. 1/4 Sec. 29, T 1 N, R 13 E reserving the privilege of using any timber on said land and cultivating any of the same not used in the construction and operating said road, situate in said county being 100 feet from the centre of the road bed, on either side, to be constructed by said company. And I hereby covenant to warrant and defend the title of said company to said lands against any and all persons claiming under by or through me."
After the death of Mrs. Taylor, intestate, her only heirs made partition of her lands among themselves by mutual conveyances. Thereafter the said heirs and those who had inherited per stirpes from such original heirs as were deceased, executed to E.A. Morrison, as trustee, a deed to all the minerals "in, on and under" the "200 foot right of way" of the appellant. Its location is in the West half of the Southwest quarter of Section 28, and the East half of the Southeast quarter of Section 29, all in Township One North, Range 13 East.
In the meantime some of the heirs had executed mineral deeds and leases to certain persons who were made parties by amendment.
Bill was filed by E.A. Morrison as trustee against the railroad company and the several owners of mineral interests to quiet title to the minerals under the two-hundred-foot strip designated as a right of way.
Each of the several deeds of partition between the heirs of Mrs. Taylor, and from such heirs to third parties, described the respective parcels as lying "East (or west) of the N O N E Railroad" and as containing a given number of acres "more or less."
Appellant railroad company contends that, by the conveyance of Mrs. Taylor, it took a fee simple title to the litigated strip. The heirs of Mrs. Taylor, acting through Morrison, trustee, claim to own all minerals therein subject only to an alleged easement of the company. The mineral owners and lessees assert ownership and rights to the said minerals. It will be seen, therefore, that the heirs and mineral assignees make common cause against the appellant as respects its claim to a fee ownership. The trial judge decreed title in the appellant to an easement only; found the heirs owned minerals under the right of way; and that the grantees and lessees of mineral interests had valid title thereto up to the center line of the right of way. As between the heirs and the owners of mineral interests, the former contend that they acquired title in severalty to their respective allotments up to, but not beyond the boundaries of the right of way. As to the minerals under the easement strip, they assert that their title thereto as heirs and tenants in common has not been divided or alienated. By seeking to restrict their partition deeds to the lands outside the easement, they would justify a similar interception of their grantees at this barrier. The latter group of parties assert that the partition deeds carried title to the center line, and, with similar reason, that the conveyances to them carried like title.
We take up first the claim of appellant. Elaborate argument is presented to support a view that the deed by Mrs. Taylor was an effective livery of seizin under Code 1942, Section 831, and that its contemplated use thereof for railroad purposes was but an incident to its complete acquisition of title to the fee.
Let us examine the deed. By its language it conveyed a "right of way." It did not convey land, but a right (of passage) "through" the land. No particular strip was identified with that certainty which a conveyance of the fee would require. It was only a floating easement or right of user of a strip 200 feet wide through the two quarter sections. The reservations as to timber and cultivation were consistent rather with an easement than title in fee. Moore Planting Co. v. Morgan's Louisiana T.R. S.S. Co., 126 La. 840, 53 So. 22.
In the habendum clause there was a "covenant to warrant" which is not a general, but at most a special warranty. In the instance here present, this language may not be allowed to rise to the efficacy of a warranty of the fee by a granting clause. That which was here granted is both by its text and its context a mere right. Grantor's "covenant to warrant and defend" was a guaranty but not a grant. Lake Erie W.R. Co. v. Ziebarth, 6 Ind. App. 228, 33 N.E. 256.
The record discloses no relevant facts upon which draft may be made to construe the deed otherwise than according to its purport. Appellant argues that at the date of the deed its grantors had no reason to withhold the fee, since there was no ground to suspect the presence of subsurface minerals. Such attitude must also have been held by appellant whose complete purpose could have been, and was, served by the right of passage with its normal incidents. It has been held in such cases that where an easement will satisfy the purpose of the grant a fee will not be included in the grant unless expressly provided. See Whitworth v. Mississippi State Highway Commission, 203 Miss. 94, 33 So.2d 612.
We have been unable to find any controlling relevancy in the fact that the appellant has for many years paid taxes assessed upon the 200-foot strip, nor in other circumstances which would be in point only if there were ambiguity in the language of the instrument. Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318. No implication of a fee can arise where, by the terms of the deed, there are conveyed rights adequate to the grantee's special purpose which is consistent with the owner's retention of the fee. 28 C.J.S., Easements, Sec. 27, p. 682. Compare Hill v. Woodward, 100 Miss. 879, 893, 57 So. 294, 39 L.R.A. (N.S.) 538, Ann. Cas. 1914A, 390. Whelan v. Johnson, 192 Miss. 673, 6 So.2d 300, is beside the point. It is there seen that acquisition by a railway company of a fee simple title was under authority and direction of a legislative act.
We are of the opinion that the learned trial judge was correct in adjudging appellant's title only as an easement. We find no error in the exclusion of the deposition of Jones. Its only relevancy was upon the issues of contemporaneous construction and adverse possession. Yet it purported to sustain these issues only by disclosure of the appellant's legal conclusions and assumptions and its "exclusive possession of the land." There was never any defiance of appellees' title. The exclusive use of the surface was consistent with its mere right of way and its permissive user is inconsistent with the acquisition of prescriptive rights. Wilmot v. Yazoo M.V.R. Co., 76 Miss. 374, 24 So. 701; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477. See extensive annotation in 132 A.L.R. 142.
We consider next the contention of Morrison, trustee. The partition deeds of the heirs inter sese, as above stated, described the respective allotments as containing a given acreage "more or less" and as lying "East (or West) of the . . . railroad."
We need not rationalize the several theories upon which the courts have reached an almost unanimous conclusion that such conveyances carry title in fee to the center line of the easement as to subsurface minerals and reversionary rights to the surface. Most of the cases are cited in the annotation to Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391, 404. Decisions of our Court are in harmony with these views. We forbear to extend our opinion by more ample citation. Other cases are set forth in briefs of counsel. See generally 8 Am. Jur., Boundaries, Secs. 39, 49.
The trustee, however, has been at pains to stand upon these principles without allowing the lessees or grantees from his grantors to gain a footing thereon. It is argued that while the heirs acquired the mineral interests beneath the right of way by inheritance, they in turn conveyed mineral interests in land bounded only by the margins of the way. Otherwise put, they partited only such lands as lay outside the easement strip, and claimed the minerals under the residuary strip as tenants in common.
The contention is ingenious, but upon the same vehicle by which we transport their rights beyond the side lines and unto the center, we cannot deny to their grantees and lessees equal passage. Grantees in the deeds of partition, who owned in common the lands on both sides of the right of way, have been given a sword of authority by which they may oust the appellant from beneath the right of way. They may not be permitted thereafter to convert it into a shield against their assignees who have made an approving common cause against appellant, but whose forward march to the center was sought to be halted at the side lines.
We do not document our conclusions with the available citations which abound in counsel's briefs. It is enough to state that we agree with the trial court's view that the title of the coparceners runs to the center of the right of way, and by the several instruments executed by them they assigned to their grantees and lessees that which the Court has vouchsafed to their grantors. A contrary contention has in its elusiveness somewhat of a fugacious quality in which an unsuspected merit has been detected by an awakened optimism and brought into sympathetic view along with discovered oil. The views of the trustee are, however, pressed with unquestioned sincerity and with that vigor without which novelty must fail of sanction.
The decree of the chancellor is in complete accord with our unanimous view, and is affirmed.
Affirmed.