Summary
holding that where deed conveyed a portion of land, nominal consideration was of minimal value in determining whether an easement or fee simple was conveyed
Summary of this case from Clark v. CSX Transportation, Inc.Opinion
No. 40960.
February 23, 1959.
1. Deeds — wording of granting clause constituted a representation that grantors owned fee.
Where granting clause of deed stated that grantors had released, relinquished, and sold and did, by such presents, release, relinquish, grant, bargain, sell and convey, such wording constituted a representation by grantors that they owned the fee.
2. Railroads — estates — deeds — estate granted was fee simple not merely a right of way over described land.
Where deed to railroad company's predecessor provided that grantors, for consideration of $1, released, relinquished, and sold and did, by such presents, release, relinquish, grant, bargain, sell, and convey to railroad company, and its successors forever, that portion of grantors' land as would be necessary or useful to railroad company for construction, use and preservation of railroad according to located survey of named engineer from one undesignated station to another, estate granted was the fee simple, not merely a right of way over land described. Sec. 4, Chap. 13, Laws 1833; Pt. 2, Tit. 1, Art. 1, Sec. 2, R.S. 1836; Pt. 2, Tit. 5, Sec. 1.
3. Deeds — granting clause prevails over subsequent provision tending to cut down estate theretofore conveyed.
Conveying and granting clause of deed prevail over subsequent provisions of deed tending to cut down estate theretofore conveyed.
4. Easements — fee simple title — deeds — construction of — generally.
Generally, when a right is conveyed by a deed, an easement is created, but, when land is conveyed, grantee is vested with the fee simple.
5. Easements — fee simple title — deeds — construction of — where nominal consideration recited.
In determining whether an easement or the fee simple has been conveyed by a deed, fact that deed recited receipt of nominal consideration has weight, but not great weight, in determination of such issue, and each such case must be decided according to the facts thereof.
6. Railroads — right of way — deeds — description — railroad company's occupancy of particular route with consent of grantor as identifying and locating property conveyed for such purpose.
Where property is conveyed to railroad company for purpose of its right of way, without full description being made of land conveyed, railroad company's occupancy of a particular route with consent of grantor will identify and locate property conveyed for such purpose.
Headnotes as approved by Roberds, P.J.
APPEAL from the Chancery Court of Hinds County, L. ARNOLD PYLE, Chancellor.
Brunini, Everett, Grantham Quin, Jackson and Vicksburg; Wright, Overstreet, Kuykendall Perry, F.L. Wright, Jr., Byrd, Wise Smith, Jackson, for appellants.
I. The Trial Court erred in not finding that the deed of Daniel and William Thomas to the President, Directors and Company of the Commercial and Railroad Bank of Vicksburg conveyed a fee simple title.
A. The railroad was authorized to acquire its land in fee simple. Arthur v. Commercial and Railroad Bank of Vicksburg, 9 Sm. M. 394; Chap. XIII Sec. 4, Laws 1833; 51 C.J., Railroads, Sec. 200.
B. This deed conveyed a fee simple title under the then existing Mississippi real property statutes. Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Revised Statutes 1836, pp. 516, 535, 536, 548.
C. The deed did not limit the estate conveyed to the grantee. Arthur v. Commercial and Railroad Bank of Vicksburg, supra; Gaston v. Mitchell, supra; Jones v. New Orleans Northeastern R. Co., 214 Miss. 804, 59 So.2d 541; Mississippi Central R. Co. v. Ratcliff, 214 Miss. 674, 59 So.2d 311; New Orleans Northeastern R.R. v. Morrison, 203 Miss. 791, 35 So.2d 68; 51 C.J., Railroads, Sec. 202; 74 C.J.S., Railroads, Sec. 84(b).
D. Even if the deed is ambiguous as to the estate intended to be conveyed, the deed will be construed to pass a fee simple rather than a less estate. Gaston v. Mitchell, supra; Mississippi Central R. Co. v. Ratcliff, supra.
E. The law presumes an intent to pass title in accordance with the terms of a deed. Arthur v. Commercial and Railroad Bank of Vicksburg, supra; Mississippi Central R. Co. v. Ratcliff, supra.
F. The Trial Court was in error in finding that only an easement was intended to be conveyed due to the reasons set forth in his opinion. Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; Bush v. Cooper, 26 Miss. 599; Cunningham v. Dillard, 71 Miss. 61; Harney v. Morton, 36 Miss. 411; Jones v. New Orleans Northeastern R. Co., supra; Taylor v. Eckford, 11 Sm. M. 21; Vicksburg Meridian R. Co. v. Ragsdale; 54 Miss. 200; Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Part II, Title I, Article IV, Secs. 137, 142, Revised Statutes 1836; Part II, Title V, Sec. 1, Revised Statutes 1836; Chap. 224, Laws 1954; 16 Am. Jur., Deeds, Secs. 95, 221, 439; 26 C.J.S., Deeds, Sec. 34.
II. The Trial Court erred in not finding that the deed from Daniel and William Thomas to the Commercial Railroad Bank of Vicksburg contained a good description, or at least if the description was not good then in not finding that the acquiescence by the grantors in the land occupied by the railroad thereby fixed the description in the deed. Part II, Title V, Sec. 1, Revised Statutes 1836; 16 Am. Jur., Deeds, Sec. 48; 26 C.J.S., Deeds, Sec. 10(1); 28 C.J.S., Easements, Sec. 24.
A. The description was good in 1836 when the deed was executed and may now be located by extrinsic evidence. Bowers v. Anderee, 52 Miss. 596; Carter Oil Co. v. Welker, 112 F.2d 299; Figeuroa v. Lemon, 222 Miss. 806, 78 So.2d 342; Jenkins v. Bodley, Sm. M. Chancery Reports 338; Jones v. Hickson, 204 Miss. 373, 37 So.2d 625; McLendon v. Ravesies, 178 Miss. 428, 173 So. 303; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Nixon v. Porter, 34 Miss. 697; Pool v. Myers, 13 Sm. M. 466; Robbins v. McMillan, 26 Miss. 434; Sims v. Crecink, 208 Miss. 873, 45 So.2d 737; 16 Am. Jur., Deeds, Secs. 268, 273, 274; Anno. 84 A.L.R. 273-275; 51 C.J., Railroads, Sec. 191; 26 C.J.S., Deeds, Sec. 101(b); 74 C.J.S., Railroads, Sec. 81(c).
B. Since the grantors in the deed of 1836 acquiesced in the location and use of the property such acquiescence will operate to locate and identify the property conveyed in the deed. Chicago A.R. Co. v. Langer (Ill.), 123 N.E. 61; Como v. Pointer, 87 Miss. 712, 40 So. 260; Gainesville Midland R. Co. v. Tyner, 204 Ga. 535, 50 S.E.2d 108; Jackson v. Rogers, 54 S.E.2d 132; McCaleb v. Pradat, 25 Miss. 257; Martin v. Seaboard Air Line Ry. (Ga.), 77 S.E. 1060; Messer v. Oestreich (Wis.), 10 N.W. 6; 51 C.J., Railroads, Sec. 191; 74 C.J.S., Railroads, Sec. 81(c); Vol. VI, Thompson on Real Property, Sec. 3279.
III. Other courts hold that such a deed conveys a fee simple title. Ballard v. Louisville N.R. Co., 9 Ky. 523, 5 S.W. 484; Breckenridge v. Delaware, L. W.R. Co. (N.J.), 33 A. 800; Brightwell v. International-Great Northern R. Co. (Tex.), 49 S.W.2d 437, 84 A.L.R. 265; Buffalo Pipe Line Co. v. New York, Lake Erie W.R. Co., 10 Abb. N.C. 107; Cincinnati, R. Ft. W.R. Co. v. Cleveland, C.C. St. Louis R. Co., 188 Ind. 230, 123 N.E. 1; Clevinger v. Chicago, M. St. Paul R. Co. (Mo.), 210 S.W. 867; Crowell Conner v. Howard (Tex.), 200 S.W. 911; Des Moines City R. Co. v. City of Des Moines, 183 Iowa 1261, 159 N.W. 450; Gainesville Midland R. Co. v. Tyner, 204 Ga. 535, 50 S.E.2d 108; Gilbert v. Missouri, K. T.R. Co., 185 Fed. Rep. 102; Grace v. Southern R. Co., 164 S.C. 427, 162 S.E. 425; Hicks, Atty. Gen. ex rel. Askew v. Smith, 109 Wis. 532, 85 N.W. 512; Kilgore v. Cabell County Court, 80 W. Va. 283, 92 S.E. 562; Kynerd v. Hulen, 5 F.2d 160; Midstate Oil Co. v. Ocean Shore R. Co., 93 Cal.App. 704, 270 P. 216; Nelson v. Texas P.R. Co., 152 La. 117, 92 So. 754; New York, B. E.R. Co. v. Motel, 81 Conn. 466, 71 A. 563; Quinn v. Pere Marquette R. Co., 256 Mich. 143, 239 N.W. 376; Rodetsky v. Jorgensen, 70 Cal. 423, 202 P. 175; Samuel Mitchell Estate v. Western A.R. Co., 167 Ga. 728, 146 S.E. 556; Sherman v. Sherman, 23 S.D. 486, 122 N.W. 439; Switzer v. Board of County Comm., 70 Colo. 563, 203 P. 680; United States Pipe Line Co. v. Delaware, L. W.R. Co. (N.J.), 41 A. 759.
IV. The Trial Court erred in not finding that the appellants have a fee simple title by adverse possession. Atchison, T. S.F.R. Co. v. Stamp (Ill.), 125 N.E. 381; Ball v. American Tel. Tel. Co., 227 Miss. 218, 86 So.2d 42; Berry v. Southern Pine Electric Power Assn., 222 Miss. 260, 76 So.2d 212; C.L. Gray Lbr. Co. v. Pickard, 220 Miss. 419, 71 So.2d 211; Gulf, C. S.R. Co. v. Brandenberg (Tex.), 193 S.W. 179; Newman v. Smith, 226 Miss. 465, 84 So.2d 512; People of the State of California v. Ocean Shore Railroad, 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R. 2d 1179; Sadler v. Alabama Great Southern R. Co., 204 Ala. 155, 85 So. 380; Shepherd v. Cox, 191 Miss. 715, 1 So.2d 495; Webster v. International G.N.R. Co. (Tex.), 193 S.W. 179; Anno. 94 A.L.R. 533; 2 C.J.S., Adverse Possession, Secs. 39, 221.
V. The tax sale of 1875 was void insofar as concerns subject land. Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200, 28 So. 956; Southern R. Co. v. City of Jackson, 38 Miss. 334; Chap. 354, Laws 1854.
VI. The mortgage foreclosure of 1889 was valid. Alabama V.R. Co. v. Thomas, 86 Miss. 27, 38 So. 770.
VII. The Trial Court erred in not considering the exceptions in the deed of Mrs. C.D. Halsmith to C.J. Mashburn. Como v. Pointer, supra; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; McCaleb v. Pradat, supra; Oldham v. Fortner, 221 Miss. 732, 74 So.2d 824; Texas Co. v. Newton Naval Stores Co., 223 Miss. 468, 78 So.2d 751, 49 A.L.R. 2d 1182; Wilson v. Gerard, 213 Miss. 177, 56 So.2d 471; 16 Am. Jur., Deeds, Sec. 304; Anno. 139 A.L.R. 1355; 26 C.J.S., Deeds, Sec. 140(3), (7) (c, e).
James H. Adams, Raymond; Wells, Thomas Wells, L.A. Wyatt, Jackson, for appellees.
I. The deed from Dan and William Thomas to the President, Directors and Company of the Commercial and Railroad Bank of Vicksburg is not sufficient to convey fee title to the land. Bowers v. Andrews, 52 Miss. 596; Crosby Lbr. Co. v. Elsas, 183 Miss. 107, 183 So. 499; Delk v. Hubbard, 153 Miss. 869, 121 So. 499; Holley v. Curtis, 3 How. 230; Lazar v. Caston, 67 Miss. 275; New Orleans N.E.R. Co. v. Morrison, 203 Miss. 791, 35 So.2d 68; Selden v. Coffee, 5 Miss. 41; Swayze v. McCrossin, 13 Sm. M. 317; Anno. 117 A.L.R. 1073; 26 C.J.S., Deeds, Sec. 30(c) p. 649; 37A Words and Phrases 593.
II. If the instrument executed by Dan and William Thomas to the President, Directors and Company of the Commercial and Railroad Bank of Vicksburg conveyed anything, then, applying the usual rules of construction, it conveyed only an easement for railroad purposes. Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 75 So. 574; Askew v. Spence, 210 Ga. 279, 79 S.E.2d 531; Atkin v. Westfull, 69 N.W.2d 523; Barlow v. Chicago, R.I. P.R. Co., 29 Iowa 276; Chicago, G.W.R. Co. v. Zahner, 145 Minn. 312, 177 N.W. 350; Daugherty v. Helena Northwestern R. Co. (Ark.), 252 S.W.2d 546; Jackson v. Sorrels, 212 Ga. 333, 92 S.E.2d 513; Keokuk County v. Reinier, 227 Iowa 499, 288 N.W. 676; L. G. Realty Construction Co. v. City of Indianapolis, 139 N.E.2d 580; New Orleans N.E.R. Co. v. Morrison, supra; Noel Estate v. Kansas City, S. G.R. Co., 187 La. 717, 175 So. 468; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Rogers v. Pitchford, 181 Ga. 845, 184 S.E. 623; Salem Brick Lbr. Co. v. Williams, 210 Miss. 560, 50 So.2d 130; Southern R. Co. v. Griffiths, 304 S.W.2d 508; Sumter Lbr. Co. v. Skipper, 183 Miss. 595, 184 So. 296; Tallman v. Eastern Ill. P.R. Co., 379 Ill. 441, 41 N.E.2d 537; Whelan v. Johnson, 192 Miss. 673, 6 So.2d 300; Annos. 132 A.L.R. 142; 136 A.L.R. 379.
III. The only estate acquired by appellant railway company by possession is an easement for the use of the land for railroad purposes. Cleveland, C.C. St. L.R. Co. v. Cross, 162 N.E. 253; Consumers Gas Trust Co. v. American Plate Glass Co., 162 Ind. 393, 68 N.E. 1020; Meyer v. Pittsburgh, C.C. St. L.R. Co., 63 Ind. App. 156, 113 N.E. 443; New Orleans N.E.R. Co. v. Morrison, supra; Peterson v. Holland (Tex.), 189 S.W.2d 94; Williams v. Patterson, 198 Miss. 120, 21 So.2d 477; Anno. 127 A.L.R. 518; 74 C.J.S., Railroads, Sec. 85.
IV. The appellants, complainants in the court below, must stand upon the strength of their own title, and the burden of proof is on them to show good title in themselves. Broom v. Jackson, 193 Miss. 66, 7 So.2d 829; De Lee v. Anderson, 216 Miss. 888, 63 So.2d 393; Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; Vol. V, Thompson on Real Property (1957 Ed.), Sec. 2555.
The question for decision herein is whether appellant Railroad has a fee simple title to, or a mere easement in and over, a strip of land, comprising 5.45 acres, described in the bill, and being a part of the right-of-way of said Railroad. The chancellor held that the Railroad has only an easement. The question has given us much concern. A majority of the Court has concluded that the Railroad has a fee. The solution of the question rests in the interpretation of the terms of the deed to the predecessor of appellant Railroad, in the light of the pertinent facts and circumstances extrinsic of the provisions of the deed, as affected by legislative enactments.
This is the deed: "KNOW ALL MEN BY THESE PRESENTS, THAT we, Daniel and Wm. Thomas in consideration of the sum of One Dollar to me in hand, or secured to be paid, have this day released, relinquished, and sold, and do by these presents release, relinquish, grant, bargain, sell, and convey unto the President, Directors, and Company of the Commercial and Rail Road Bank of Vicksburg, and their successors forever, all that portion of our tract of land near Clinton on Bakers Creek being parts of Section Nineteen (19) in Township No. Six of Range No. Two West of lands offered for sale at Mount Salus which is or may be necessary or useful to the said Company in the construction, use, and preservation of the Rail Road from Vicksburg to Jackson, the route whereof, according to the located survey of the Engineer, Mr. Van Rensellaer, from Station No. to Station No. runs through my said land.
"In testimony whereof I have hereunto set my hand and seal, this 25 day of A.D. 1836.
"/s/ Daniel and Wm. Thomas
"/s/ Wylie Bohannon "/s/ John Hayns"
These are the pertinent facts: The deed refers to a survey made by Van Rensellaer but does not contain the survey. However, it seems clear that the survey was made and that it was descriptive of the right-of-way, being sixty-six feet in width, although the actual survey could not be found. Construction of the Railroad from Clinton to Vicksburg, including the land in controversy, was completed about 1840, and the roadbed and right-of-way have been in their present location since that time. The land north of the right-of-way is rolling land; that south of there is marshy. The Railroad, from time to time, has entered into lease agreements under which telephone and telegraph poles and wires have been constructed and operated by others, by permission of the Railroad, since 1906. The telephone lines are near, or along, the north edge, and the telegraph lines are on, or near, the south edge of the right-of-way. The Railroad has also constructed upon the right-of-way its own electric wires for the purpose of operating its trains. The right-of-way has been fenced for many years. The fences, at first, were maintained by the Railroad. It appears that in recent years the fences, or some of them, have been maintained by adjoining property owners. Since it acquired title to the property the Railroad has paid all ad valorem taxes thereon. It will be noted that the foregoing facts are consistent with ownership of the fee in the Railroad; some of them are not consistent with ownership, only of an easement.
The grantee in the deed was chartered by an Act of the Legislature of Mississippi in 1833. Chapter XIII, Laws of 1833. Section 4 of that Act provides: "And said Company may procure by purchase or otherwise such lands or other property as may be necessary for the site of said road * * * and shall hold and possess the same in fee simple." The name of the railroad as incorporated was the President, Directors and Company of the Commercial and Railroad Bank of Vicksburg, of which appellant-Railroad is the ultimate successor.
Section 4 of said Act of incorporation further provided: "And be it further enacted, that such persons as may become subscribers for the stock of said company, their successors and assigns, shall be and they are hereby created and made a corporation and body politic by the name and style of `The President, Directors and Company of the Commercial Railroad Bank of Vicksburg.' * * * And said Company may procure by purchase or otherwise, such lands or other property as may be necessary for the site of said road, or its construction, or for the erection of warehouses or other works incident thereto, or for any other purpose proper for the construction of said railroad, or for the repairing the same, or for the use and purposes of the bank and its branches, and shall hold and possess the same in fee simple."
(Hn 1) It is not denied that Daniel and William Thomas, the grantors to the Railroad, had the fee simple title to the land in controversy. The granting clause of the deed was "* * * have this day released, relinquished, and sold, and do by these presents release, relinquish, grant, bargain, sell, and convey * * *", which wording constitutes a representation by grantors that they did own the fee. Section 2, Part II, Title I, Article I, Revised Statutes of Mississippi of 1836, in force at the time of the execution of said deed, provided: "Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a fee simple, or fee; and every such estate, when not defeasible or conditional, shall be termed a fee simple absolute, or an absolute fee."
(Hn 2) Part II, Title V, Section 1 on p. 548 of said Revised Statute, provided: "* * * every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the grant." Certainly no less estate than a fee was granted by express terms of the deed. Nor can it be said such estate was necessarily implied. Six Members of this Court are of the opinion that that is not true. That would seem sufficient to refute the conclusion an estate less than a fee was implied. Great weight has been given the effect of charter provisions and statutes.
Whelan, et al. v. Johnston, et al., 192 Miss. 673, 6 So.2d 300; Mississippi Central Railroad Company, et al. v. Ratcliff, et al., 214 Miss. 674, 59 So.2d 311; New Orleans Northeastern R.R. Company v. Morrison, et al., 203 Miss. 791, 35 So.2d 68. In the Ratcliff case the Court noted the deed was in the form of a warranty deed and gave effect to the statutory provision that a deed in such form carried the fee under Section 2764, Miss. Code 1906, (Sec. 833, Miss. Code 1942). And in the Morrison case, supra, the Court, directing its observation to Whelan v. Johnston, supra, said: "It is there seen that acquisition by a railway company of a fee simple title was under authority and direction of a legislative act."
It would seem that in the case at bar this Court has already decided that a fee vested in the grantee Railroad. In the case of Arthur v. The President, Directors and Company of the Commercial and Rail Road Bank of Vicksburg, 9 Smedes and Marshall, 394, January Term, 1849, the predecessor of appellant Railroad was in the hands of a receiver and the question arose as to what assets belonged to the Railroad. That, of course, involved the title the Railroad had to its right-of-way — whether the fee or an easement. The Court said: "What interest had the corporation in the railroad at the time of the assignment? By charter it would seem a fee simple. The banking privileges were to cease in thirty years, but there is no limit to the franchise of the railroad, and it is expressly authorized to hold the property and estate necessary for the purposes of the road in fee simple. Section 4 of Charter."
(Hn 3) That would seem to establish the title of the Railroad to its right-of-way to be that of a fee simple estate. However, we will turn to the deed itself. By warranty it conveyed that portion of the "land" necessary or useful in the construction, use, and preservation of the Railroad. It did not convey a right. It conveyed the land. It conveyed the land to the grantee and its successors "forever." It is universally held that the conveying and granting clause of a deed prevail over any subsequent provision tending to cut down the estate theretofore conveyed. Mississippi Central Railroad Company v. Ratcliff, et al., supra; and Jones v. N.O. and N.E. Railroad Co., et al., 214 Miss. 804, 59 So.2d 541. The phrase "which is or may be necessary or useful to the said Company in the construction, use, and preservation of the Rail Road from Vicksburg to Jackson", has reference to the use to which the granted right-of-way would be put and to the quantity of the land necessary for that purpose — not to the quality of the estate conveyed. It is noted, too, the deed states that the survey of the engineer had been made, (although the metes and bounds the engineer had established were omitted in the deed.) The right-of-way was constructed according to that survey and it was sixty-six feet in width. There is a vast difference between a grant for purposes of a "right-of-way" for a road and a grant of land to be used for a road. This was a grant of land to be used for construction and operation of a railroad — not a grant of a right-of-way over land. The distinction is clearly defined in Jones, et al. v. N.O. N.E.R. Company and Mississippi Central Railroad Company v. Ratcliff, supra.
(Hn 4) Appellees rely mainly upon New Orleans and Northeastern R.R. Company v. Morrison, supra. That case is readily distinguished from the case at bar. That was a quitclaim deed, and it expressly conveyed a "right-of-way for 200 feet" over and across certain lands. The deed also reserved to grantors certain timber on the conveyed lands and the right to cultivate such parts as might not be needed in the construction and operation of the Railroad. The Court expressly observed that such reservations were inconsistent with conveyance of the fee, and that the provisions of the deed did not convey land but conveyed only a right of passage through land, — a "floating easement." Generally when a right is conveyed it is an easement; when land is conveyed grantee is vested with a fee simple. Jones v. N.O. N.E.R. Company; Mississippi Central Railroad Company v. Ratcliff, supra; Anno. 132 A.L.R. 142, and Anno. 136 A.L.R. 379.
(Hn 5) The chancellor attached importance to the fact that the deed recited receipt of a nominal consideration. That fact has weight in determining whether an easement or fee has been conveyed. However, great weight should not be attached to that fact. The consideration might have been entirely different from that stated. When the case was tried there was no way to introduce proof bearing on that question. Besides, the benefit to the property owner resulting from construction and operation of the Railroad might have been the true consideration for the execution of the deed. Each case must be decided according to the facts of the case.
(Hn 6) It is urged that we hold the deed invalid because the description of the property therein is uncertain. The Railroad got title to the land some one hundred and twenty-two years ago and has used it since. The proof is the construction of the Railroad was completed in 1840. There is also evidence, to memory of living persons, that the roadbed has been where it now is since 1884. There is no proof that any other railroad right-of-way or roadbed has ever existed along the route of appellant-Railroad and presumably its roadbed and right-of-way, observable to all persons, has been at its present location since 1840. The rule about that is this: "If, however, the grantor acquiesces in the location and use of right-of-way by the Company, such acquiescence will operate to identify and locate the route or property conveyed, and has the same legal effect as though it had been definitely described, especially where the Company pays the purchase price of the property granted and it is afterward fully located." 51 C.J., Railroads, Section 191; Thompson on Real Property, Section 3279 (3085).
In Martin, et al. v. Seaboard Air Line Railway, 77 S.E. 1060 (Ga.), the Court said: "The grant did not identify the land intended to be granted, but left it to the grantee to complete the identification by locating the road through the grantor's land. * * * Subsequently, when the grantee located its roadbed, that completed the identification of the land granted and fixed the rights of the parties under the deed, thereby confining the grantee to the land so appropriated."
In Como v. Pointer, 87 Miss. 712, 40 So. 260, this Court said: "It is, of course, firmly established that, where the vendor places his vendee in possession of land under certain boundaries or other descriptive terms, he will not afterwards be permitted to avail himself of any uncertainty or ambiguity in the terms employed. The contemporaneous construction by vendor and vendee evidenced by giving possession will fix the true meaning and intent of the parties. It is plain to our minds, therefore, that Bass and his vendees are by lapse of time vested with a perfect title to the land in question." The rule seems universal that where property is conveyed by a grantor to a railroad company for purpose of its right-of-way, without the full description of the land conveyed, the occupancy of a particular route by the grantee with the consent of the grantor will identify and locate the property for such purpose. Jackson v. Rogers, et al., 54 S.E.2d 132 (Ga.). It indeed would be a travesty on justice to hold a deed void for imperfect description where a railroad has constructed its right-of-way and has been operating trains over the same for over one hundred years.
Reversed and judgment here for appellants, and remanded solely for an accounting.
McGehee, C.J., and Hall, Lee, Arrington and Ethridge, JJ., concur. Kyle, Holmes and Gillespie, JJ., dissenting.