Submitted: September 22, 1992
Filed: November 13, 1992
Charles E. Barnett
John M. Hedges
Kay, Casto, Chaney, Love & Wise Charleston, West Virginia
Charleston, West Virginia Attorney for Amicus Curiae
Attorney for the Appellees Elk River Rails-To-Trails
Foundation, Inc.; Mountain
Jan L. Fox State Wheelers Bicycle
Deputy Attorney General Club, Inc.; North Bend
Charleston, West Virginia Rails-To-Trails Foundation,
Attorney for Appellants Inc.; West Virginia Rails-
Greenbrier River Association, Inc.; Greenbrier
River Watershed Association, Inc.; Monongahela
River Trails Conservancy,
Ltd.; and West Virginia
Scenic Trails Association,
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
"'In construing a deed, will or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith.' Pt. 1, syllabus, Maddy v. Maddy, 87 W. Va. 581 [105 S.E. 803] [(1921)]." Syllabus Point 5 of Hall v. Hartley, 146 W. Va. 328, 119 S.E.2d 759 (1961).
The defendants, the West Virginia Railroad Maintenance
Authority, a public corporation, and Robert Trocin, Commissioner of
the Department of Commerce, appeal an order of the Circuit Court of
Kanawha County which granted the plaintiffs' motion for summary
judgment. The case involves a civil action instituted to determine
the ownership of a 100-foot wide strip of land which is part of
what is commonly known as the Greenbrier River Trail. The
defendants contend that the contested strip of land was conveyed by
a general warranty deed to the Greenbrier Railway Company in 1899.
The plaintiffs contend that the 1899 deed conveyed only an easement
for a right-of-way across property which they now own.
The civil action arising out of this dispute was filed by Elva Kathleen Grill and Charles G. Engelhart and Virginia Holt Engelhart, his wife, to determine the legal status of the strip of land. At the time the action was filed, Ms. Grill and Mr. and Mrs. Engelhart each owned a one-half undivided interest in and to a 100-acre tract of land, of which the contested strip of land is a part.See footnote 1
The property in question was conveyed to the Greenbrier
Railway Company, a corporation, by deed dated July 8, 1899, from
William L. McNeel and Mary L. McNeel, his wife. That deed is
recorded in the Office of the Clerk of the County Commission of
Greenbrier County in Deed Book No. 53, at page 522. The granting
clause of the deed states that the McNeels "do hereby sell and
grant unto the said Railway a strip of land for a right-of-way one
hundred (100) feet wide through the lands of the parties of the
first part, situate in the District of Falling Springs, in
Greenbrier County, State of West Virginia[.]" The habendum clause
of the deed states: "To have and to hold said strip of land unto
said Railway for a right of way, its successors and assigns
forever." The deed does not contain any reverter clause, nor does
it contain any clause which expressly or impliedly forfeits the
land upon the discontinuance of its use by the Greenbrier Railway
Company or its successors in interest. Moreover, the deed contains
a covenant of general warranty.See footnote 2
The contested strip of land is one of several strips acquired for the construction of a railroad, which became known as the "Greenbrier Line," running along the Greenbrier River from Caldwell in Greenbrier County to a place at or near Durbin in Pocahontas County. The railroad was constructed and was operated for many years either by the Greenbrier Railway Company or its immediate successor in title, the Chesapeake and Ohio Railway Company (C & O Railway), a Virginia corporation.
In March 1975, C & O Railway applied to the Interstate
Commerce Commission (ICC) for permission to abandon a portion of
the Greenbrier Line. The contested strip of land was a part of the
railroad line upon which service was to be discontinued. The ICC
granted its permission, and service was discontinued. However,
C & O continued to hold the title to the property until it was
conveyed to the West Virginia Railroad Maintenance Authority by
deed dated June 20, 1980.See footnote 3
Following discovery in this matter, the plaintiffs filed a motion for summary judgment. After considering the various pleadings filed by the parties and oral arguments thereon, the circuit court ruled in favor of the plaintiffs. In its order dated March 21, 1991, the circuit court ruled that the McNeel deed was a conveyance of an easement for a right-of-way only and that the plaintiffs are the owners of the 100-acre tract, which includes the contested strip of land.
The circuit court apparently based its ruling on the fact
that, at the time the McNeel deed was made, the Greenbrier Railway
Company obtained 48 similar deeds, 39 of which contained clauses
identical to the granting and habendum clauses in the McNeel deed.
The circuit court stated that 30 of these deeds were made on
preprinted forms, and, while the McNeel deed is handwritten, it
contains verbatim the same language as the preprinted forms. Based
on this reasoning, the circuit court concluded that the McNeel deed
was prepared by the Greenbrier Railway Company and that any
ambiguity must, therefore, be resolved in favor of the plaintiffs.
The circuit court then found that the use of the
contested strip of land for recreational purposes was not a part of
the purpose for which the easement was created. The defendants
appeal from the findings of the circuit court and seek a
declaration that they are the owners of the contested strip of land
in fee simple.
On appeal, we granted several organizations the right to file an amicus curiae brief. A brief was filed on behalf of Elk River Rails-To-Trails Foundation, Inc.; Mountain State Wheelers Bicycle Club, Inc.; North Bend Rails-To-Trails Foundation, Inc.; West Virginia Rails-To-Trails Council; Greenbrier River Association, Inc.; Greenbrier River Watershed Association, Inc.; Monongahela River Trails Conservancy, Ltd.; and West Virginia Scenic Trails Association, Inc.
There is little question that the deed does create an ambiguity with regard to whether the estate conveyed was a fee simple or a right-of-way. Our general rule for construing a deed is given in Syllabus Point 5 of Hall v. Hartley, 146 W. Va. 328, 119 S.E.2d 759 (1961):
"'In construing a deed, will or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith.' Pt. 1, syllabus, Maddy v. Maddy, 87 W. Va. 581 [105 S.E. 803 (1921)]."
See generally 23 Am. Jur. 2d Deeds § 265 (1983).
In Killgore v. Cabell County Court, 80 W. Va. 283, 92
S.E. 562 (1917), this Court considered a grant of land to a
railroad. The deed stated that the land was granted "for the
construction of a double track of railway." 80 W. Va. at 284, 92
S.E. at 562. The plaintiffs claimed that the deed therefore
granted only an easement. The Court, however, noted that "[i]t has
been held in many cases that words used in a deed declaratory of
the purpose for which the land is granted do not have the effect of
limiting the estate granted by the deed. [Citations omitted.]" 80
W. Va. at 286, 92 S.E. at 563. The Court held that the deed
conveyed a fee simple absolute estate.
Other jurisdictions have also found creation of a fee
simple estate, despite reference in a deed to the purpose of the
conveyance as a right-of-way. In Maberry v. Gueths, 238 Mont. 304,
777 P.2d 1285 (1989), the court examined a grant of land to a
railroad and found creation of a fee simple, despite reference to
the land as a right-of-way. The deed considered in that case
contained language in the habendum clause similar to that before us
now, namely "to have and to hold . . . its successors and assigns
forever." 238 Mont. at ___, 777 P.2d at 1288. The Court found
that "[t]he language relating to use as a railroad right of way is
merely descriptive as to use and not as a limitation on the grant."
238 Mont. at ___, 777 P.2d at 1288. See also Machado v. Southern
Pac. Transp. Co., 233 Cal. App. 3d 347, 284 Cal. Rptr. 560 (1991);
Mississippi Cent. R. Co. v. Ratcliff, 214 Miss. 674, 59 So. 2d 311
(1952); Arkansas Improvement Co. v. Kansas City S. Ry. Co., 189 La.
921, 181 So. 445 (1938); Johnson v. Valdosta, M. & W. R. Co., 169
Ga. 559, 150 S.E. 845 (1929). See generally Annot., 6 A.L.R.3d 973
In this case, as well, the words "for a right-of-way" in
the deed are not limiting, but are merely descriptive. The deed
clearly "grant[s] unto the said Railway a strip of land," and not
simply a right to use the land. (Emphasis added). The granting
clause states that the grantors "do hereby sell and grant unto the
said Railway a strip of land for a right-of-way." The habendum
clause gives to the grantee the right "[t]o have and to hold said
strip of land unto said Railway for a right of way, its successors
and assigns forever." Examining the deed as a whole, as required
by Hall, supra, we must conclude that the deed creates a fee
simple, not merely an easement.
We, therefore, conclude that summary judgment was
improperly granted. Accordingly, we reverse the decision of the
circuit court and hold that the defendants own the land in fee
Footnote: 1In the time since suit was filed, Ms. Grill and Mrs. Engelhart have died. Upon Ms. Grill's death, her interest in the property passed to her three children, namely, Betty Barnett Woomer, Charles E. Barnett, and Harold G. Barnett. Upon the death of Mrs. Engelhart, her interest passed to her husband Charles G. Engelhart.
Footnote: 2The text of the 1899 deed is as follows:
"This deed made this 8th day of July 1899 between Wm. L. McNeel and Mary L. McNeel, his wife, parties of the first part, and the Greenbrier Railway Company, a corporation, party of the second part. Witnesseth, that for and in consideration of one (1) dollar in hand paid, the receipt whereof is hereby acknowledged, the said parties of the first part do hereby sell and grant unto the said Railway a strip of land for a right-of-way one hundred (100) feet wide through the lands of the parties of the first part, situate in the District of Falling Springs in Greenbrier County, State of West Virginia, and lying on
the right or west bank of the Greenbrier
river and between the lands of George Brant
on the north and the south, and more
particularly described as follows: Beginning
at the point where the south line of said
McNeel land running from said river crosses
the center line of said Railway as now
located, then northerly with the center line
of said Railway as now surveyed and located
which is shown on a map made by Wm. A.
Hawkins, Civil Engineer, and filed in the
Clerk's office of the County Court of said
Greenbrier County, to the north line of the
said McNeel land, and the said strip is 50
feet on the east side of said center line and
50 feet on the west side thereof, and
contains about [ ] acres.
"To have and to hold said strip of
land unto said Railway for a right of way,
its successors and assigns forever.
"The parties of the first part
warrant generally the property hereby
conveyed, that they have a right to convey
and that it is free from all incumbrances
"Witness the following signatures
and seals on the day and date written above.
/s/ W.L. McNeel (Seal)
/s/ M.L. McNeel (Seal)
State of West Virginia, Pocahontas County,
to-wit: I, B.M. Yeager, a Notary Public in
and for the County and State aforesaid, do
certify that Wm. L. McNeel and M.L. McNeel,
his wife, whose names are signed to the
writing above bearing date on the 8th day of
July 1899, have this day acknowledged the
same before me in my said County. Given
under my hand this 11th day of July, 1899.
/s/ B.M. Yeager, N.P."
Footnote: 3The Railroad Maintenance Authority was created by the legislature in 1975. See W. Va. Code, 29-18-4. Two of the functions of the Maintenance Authority are to acquire rail properties, see W. Va. Code, 29-18-6 (1991), and to lease such properties for the development of rail projects or other public purposes. See W. Va. Code, 29-18-7 (1975). The Greenbrier River Trail is under the control of the division of tourism and parks. W. Va. Code, 5B-1-16 (1985).