Daily Development for
Tuesday, March 3, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

TITLE; RAILROAD RIGHT OF WAY: Deed for railroad right of way that states that it transfers "a strip of land over, across and through" the grantor's property will be construed to be a conveyance of an estate in fee rather than the grant of an easement.

Tazian v. Cline, 686 N.E. 2d 95 (Ind. 1997).

Plaintiff landowner brought an action against defendant neighbor to quiet title in a strip of land held by Union Railroad Corporation/Penn Central Corporation ("Union Railroad," successor in interest to Fort Wayne Railroad). Both parties filed cross motions for summary judgment. To determine which party had title to the land in question, the court needed to determine whether Fort Wayne Railroad held the strip of land in fee simple or as an easement. If the railroad had owned the right of way as an easement, that easement had been abandoned and one of the landowners had a reversion. If the railroad had owned it in fee, then the neighbor held the railroad's claim.

The trial judge granted summary judgment in favor of the railroad interest.

On appeal: affirmed: The Supreme Court of Indiana looked to the use of the language "grant and convey and warrant" in the deed, the fact that the granting clause in the deed did not appear to be limited to conveying only a right, that the deed contained no language in the granting clause limiting the use or purpose of the land and did not contain the term "right of way," that the description provided a means of identifying the strip of land with particularity, and that the deed stated that the grant was "forever," a description of time more consistent with the conveyance of a fee than that of an easement. Therefore, the court ruled that the grant was in fee simple absolute, rather than an easement.

The dispositive distinction made by the court in this case, is the fact that the parties stated that the grantor was conveying "a strip of land" described as set forth in the deed. The court distinguished a number of other cases using such language because in those cases there was other language to show that a mere use right was intended. Here, there was no mention of railroad purposes and no reference to "right of way." The court saw as less signficant the parties' statement in the deed that the ultimate construction of the railroad constituted part of the consideration for the transfer, as this could be true whatever the nature of the transfer.

The court also saw as less signficant the fact that the deed did not describe the land conveyed with particularity, but only with regard to the railroad's ultimate location of its railroad tracks.

Comment 1: The appellate decisions are full of disputes over old railroad right of way these days. The reversionary interests often are very valuable, if they exist. From the standpoint of the railroads or their successors, there is a major problem even in identifitying the owners of these reversions, and a strong impetus to view the interests as fee interests. Many jurisdictions, however, will not recognize a condemnation title as a 100% title interest even if the language of the court's award was in those terms. They conclude that the railroads had condemnation authority only to obtain a right of way easement.

Comment 2: Underlying all of these disputes is the unfortunate fact that American law never really developed a clear name for the concept of "100% ownership."

For instance, the term "fee" actually connotes a period of time. Therefore, the court's reliance upon the language of a grant being "forever" is misplaced, as perpetual transfer of rights is consistent either with a total ownership grant or an easement grant. The traditional rule is that easements are not terminated by nonuse, but rather by an affirmative act of abandonment by the dominant owner. (The new Restatement of Servitudes may apply a different concept, and limit easements to their useful lives unless the parties stipulate otherwise - but this would only emphasize the signficance of including in an easement terms designating perpetual duration.)

Similarly, it is not unusual for parties to use deeds with warranty language or even formal property descriptions to create easements, and it was not unusual in the late Nineteenth Century for this to happen either.

Comment 3: The editor suspects that in this case, if one had asked the owner such questions as "who do you intend would own an gold deposits located three hundred feet below the tracks?" the answer would shown that the owner did not intend to give up anything but surface rights - in short - an easement. For the editor, the fact that the deed does not desribe a particular parcel through a legal description suggests that the whole function of the deed was to accomodate a railroad track, and that no one really was focussed on any other issue. Under these circumstances, the editor would conclude that it was likely that an easement was intended. Whether now, 120 years later, it makes sense to re-create all the reversionary interests and fashion a rat's nest of conflicting title claims is another question entirely. Where the documents do not compel the conclusion that the instrument was intended as an easement, there is no point in a court reaching for that result.

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