Opinion
No. 33513.
January 16, 1939. Suggestion of Error Overruled February 27, 1939.
1. ABANDONMENT.
Where gravel pit had been sold and right of way for spur track leading thereto had been granted with provision for reversion in event all gravel desired had been removed and track had been taken up, abandonment, if complete, was unaffected by fact that more economical methods for removal of gravel subsequently made renewal of operations desirable.
2. EASEMENTS.
An abandonment of an easement will be presumed where the owner of the right does, or permits to be done, any act inconsistent with its further enjoyment.
3. EASEMENTS.
A party entitled to a right of way or other mere easement in land may abandon and extinguish such right by acts in pais, and without deed or other writing.
4. ABANDONMENT.
Abandonment is largely a question of intention, and all facts and circumstances, and particularly acts and conduct of the parties, tending to show or disprove intention to abandon, may be taken into consideration, as intention is ordinarily a question of fact.
5. ABANDONMENT.
In determining claims of abandonment, each case must depend mainly on its own particular circumstances, the evidence of which must be full and clear.
6. ABANDONMENT.
Direct evidence of an intention to abandon property or rights of property is not required, but it may be inferred from all the circumstances.
7. ABANDONMENT.
The moment the intention to abandon property or rights of property and relinquishment of possession unite, the abandonment is complete, for time is not an essential element of abandonment.
8. ABANDONMENT.
Under deed conveying gravel pit and granting right of way for spur track leading thereto with provision for reversion in event all gravel desired had been removed and track had been taken up, where removal was discontinued, and track was taken up, and successor in interest of grantor retook possession and improved the land without objection, grantee's rights in pit and right of way were abandoned.
APPEAL from the chancery court of Carroll county; HON. T.P. GUYTON, Chancellor.
Denman Everett, of Greenwood, for appellant.
Appellee has no claim by adverse possession.
Section 2287, Code of 1930.
The main contention of the appellee is that the railroad has abandoned the Donley pit, and because of this abandonment, it has breached the conditions subsequent contained in the Donley deed in 1905 giving effect to the reversion clause therein contained. The appellant's answer is that it has never relinquished its claim, interest or right to ownership of the Donley pit and the right of way for the spur track, but on the other hand has continued to assert title to and exercise dominion over this property.
There are two events which must happen before the reverter can become effective. First, the railroad must have removed all of the gravel and other material which it desired from the Donley gravel pit, and, second, it must have removed its tracks from said land and ceased to use the same.
If the railroad company has never ceased to desire to remove gravel and other material from Donley pit, then the reversion clause cannot become effective. Both must happen.
Courts look with disfavor on conditions subsequent.
18 C.J. 364.
Restrictive covenants "are to be strictly construed against the person seeking to enforce them and all doubts must be resolved in favor of natural rights and a free use of property, and against restrictions."
18 C.J. 386, 388; Kent v. Stevenson, 90 So. 241; Y. M.V.R.R. Co. v. Lakeview Traction Co., 100 Miss. 281; Memphis Charleston R.R. Co. v. Neighbors, 51 Miss. 412; Thornton v. City of Natchez, 41 So. 498; St. Louis Union Trust Co. v. Galloway Coal Co., 193 Fed. 106, 119 C.C.A. 294, 201 Fed. 1022; 60 A.L.R. 925.
The word "abandonment" means to relinquish or give up with the intent of never again resuming or claiming one's rights or interest in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.
In re Edwards, 4 P.2d 560; 1 Words and Phrases (4 Series), 2.
Abandonment is made up of two elements, act and intention. It includes both the intention to abandon and the external act by which the intention is carried into effect.
To abandon the land, the owner must leave it free to the occupation of the next comer, whoever he may be without any intention to repossess it, or reclaim it for himself, in any event, and regardless and indifferent as to what may become of it in the future.
1 C.J., sec. 6, pp. 7, 8, and 7, 9, pp. 9.
Time is not an essential element of abandonment. The moment the intention to abandon and the relinquishment of possession unite, the abandonment is complete. Lapse of time is, however, a circumstance for the jury to consider in determining the question of abandonment.
1 C.J., sec. 8, p. 10.
Nonuser is not of itself sufficient to show an abandonment of a right; nor will neglect for more than twenty years to assert a title to an interest in land, by one who has a valid title, operate as an abandonment, where there is no adverse possession.
1 C.J., sec. 9, p. 11; 1 R.C.L. 3, pp. 5, 6, 7 and 8; Hicks v. Steigleman, 49 Miss. 385.
There are a number of important factors which conclusively show that the railroad had not abandoned the pit and had not mined all of the gravel which they desired from it.
In the first place the railroad company has paid the taxes on the Donley gravel pit property (the eighty acres here in controversy) every year since 1924 until the present time. This is most significant and indicates its great interest in this property, and its continued desire to keep it. It is contrary to any thought of relinquishment.
Leavenworth v. Reeves, 106 Miss. 731.
A second important evidence of the assertion of dominion over said gravel pit is that the railroad company executed a lease to Mr. A.M. Arpin on November 29, 1933, which was about two years after Mr. Hemphill took up the spur track. This lease was for the purpose of excavating and removing sand and gravel from said pit and was for a period of five years. Mr. Arpin actually removed one or two car loads of gravel from the pit and was hauling more until Mr. Dunn took it upon himself to stop him. Because of the conduct of Mr. Dunn these operations on the part of Mr. Arpin were hampered and from no fault of the railroad company he was forced to cease operating and his lease was cancelled.
The fact that two years had elapsed in the midst of the Depression from the time Mr. Hemphill removed the tracks until Mr. Arpin leased the property from the railroad is of no importance because the Supreme Court of Mississippi in the case of Buck, et al. v. City of Macon, 37 So. 460, announced "we decline to hold that mere nonuser for 2 1/2 years worked a forfeiture."
It is debatable, we confess, whether the railroad still retains its rights to the spur track right of way easement, but there can be no doubt that the eighty acres where the Donley pit is located are still the property of the railroad company, and that there has been no abandonment. The appellant maintains, however, with sincerity that under the original Donley deed to the Southern Railway Company in Mississippi the railroad still has the right to relay the spur track over the old right of way and use same, because the deed provides that the railroad company has the right to remove the rails, cross ties and bridges from the same whenever it pleases them to do so. It also has the right peaceably to enter in and upon said land and locate, build, operate and maintain a track over, through and upon said land without let or hindrance on the part of the grantors or their assigns. The fact that they have taken the track up once does not prohibit them from entering upon the land and building it again.
The preponderance of the evidence in this record shows affirmatively that there has been no abandonment of the Donley pit by the railroad company and the Chancellor was in error in finding that the railroad had relinquished its rights to the Donley pit.
Pollard Hamner, of Greenwood, and Vardaman S. Dunn, of Jackson, for appellee.
We respectfully submit that the right of way described in the Southern Railway Company grant is extinguished by removal of the spur track in 1930-31 for at least two equally controlling reasons: 1. The grant was exhausted. 2. The removal of the track was inconsistent with further enjoyment of the right of way.
9 R.C.L. 813, sec. 69; Scott v. Moore, 37 S.E. 342, 81 A.S.R. 749, 763.
We respectfully submit that the reverter clause has come into operation to confer on appellee the full enjoyment of the entire property described in the Southern Railway Company grant.
The property reverted as a result of appellant's act in removing the spur track. The railway grant, construed as a whole in connection with the situation of the parties, makes the removal of the spur track conclusive on the reverter of the entire lands. The removal of the spur track conclusively showed an intention to abandon the Donley Pit as well as the right of way.
1 Am. Jur., page 6, sec. 8, page 7, sec. 9, page 8, sees. 11, 12, page 9, sec. 13.
The property reverted as a result of appellant's act in removing the spur track when this act is considered in the light of prior, contemporaneous and subsequent acts, expressions and conduct of the parties with reference to the property.
1 Am. Jur., page 7, sec. 9, and page 11, sec. 15; Taylor v. Hampton, 4 McCord 96, 17 Am. Dec. 710; Patterson v. Graham, 164 Pa. 234, 30 A. 247; Norton v. Duluth Transfer Ry. Co., 129 Minn. 126, 156 N.W. 907, Ann. Cas. 1916E. 760; Leavenworth v. Reeves, 106 Miss. 731; Buck v. City of Macon, 37 So. 460; Daniel v. Jackoway, Freeman's Ch. Rep., 59; Vicksburg Meridian R.R. Co. v. Ragsdale, 54 Miss. 200; Trimble v. King, 114 S.W. 317, 22 L.R.A. (N.S.), 880; Rose v. Jones, 118 Miss. 494, 78 So. 771; Fox v. Matthews, 33 Miss. 433; Powell v. Tomlinson, 129 Miss. 658, 92 So. 583.
We submit that the manifest intention of the contracting parties to the deed was that the grantee and its assigns should have the right to obtain gravel from the Donley 80 as long as it desired, but that the transfer thereof from the land should be over the spur track specifically located by the unusual method of a plat attached to the deed and with the specific right contained in the deed to "locate, build, operate and maintain a track over, through and upon said land without let or hindrance," etc.
Situated as the contracting parties were in 1905 when the hauling of gravel was unknown by any other means than in railroad cars, the definite routing of a right of way over the grantor's land for such a track to be run leaves no other sensible conclusion than that the parties intended such gravel as was to be taken from the 80-acre tract of land to be taken out over the spur track and that when the spur track was removed then the right to remove the gravel terminated. The conclusion is inevitable, therefore, that the best evidence in the world of the intention of the appellant to abandon the 80-acre tract was the entire removal of rails, spikes, crossties and bridges over which could be had the only access to the 80-acre tract. It further follows that having once abandoned the land the appellant could not thereafter under any conditions reclaim it or assert any title to it.
If intent formed and once acted upon, the abandonment is as absolute if it exists for a minute or a second as if it continued for years.
Waring v. Crow, 11 Cal. 366.
In the instant case the abandonment having taken place and the breach of the condition subsequent having been made (and these things the Chancellor found as a question of fact) the deed says that both the land and the right of way "shall revert to us, or heirs, executors, administrators and assigns," and in the case of Y. M.V. Railroad Company v. Lakeview Traction Company, 100 Miss. 281, which case is cited by counsel for appellant in their brief, this court specifically recognizes the binding force of a condition subsequent, and in that case the wording of the condition is almost identical with the wording chosen and used in the Donley deed. "A court of equity notwithstanding its abhorrence of forfeiture, will take jurisdiction, not to declare a forfeiture, but to quiet a title already forfeited for nonperformance of a condition subsequent, when the plain language of the instrument shows that it was the purpose of the parties to declare that a breach should operate as a forfeiture." Ross v. Sanderson, L.R.A. 1917C 879. If the rule announced in that case were not the law parties competent to contract would be in position to have their solemn agreements denied by the courts and the right to contract granted by the constitution would be lost. Therefore, any argument in this case that equity will not enforce a forfeiture is entirely out of place since the parties themselves to the original Donley deed have fixed the terms of their agreement and a court of equity is bound to enforce contracts unless violative of public policy, and there is no contention of that sort here.
R.C. Stovall, of Columbus, for appellant on suggestion of error.
Argued orally by Richard Denman and Frank E. Everett, Jr., for appellant, and by Vardaman S. Dunn and W.M. Hamner, for appellee.
This appeal is from a decree cancelling the claim of title of appellant railway company to eighty acres of land and also its claim to an easement over a strip of land adjacent thereto formerly used as a right of way for a spur-track from the main line of the railroad to a gravel pit on the eighty acres in controversy. The parties claim through a common source of title, namely S.I. Donley and wife, who conveyed the property in controversy to the Southern Railway Company in Mississippi, during the year 1905, by warranty deed, from which we quote certain presently pertinent provisions, which follow the description of the land and right of way conveyed, as follows:
"We hereby grant to said Southern Railway Company in Mississippi, its successors and assigns the right peaceably to enter in and upon our said land and locate, build, operate and maintain a track over, through and upon said land without let or hindrance on the part of ourselves, our heirs, executors, administrators and assigns and run cars over, through and upon said track and to remove the rails, cross ties and bridges from the same whenever it pleases said Southern Railway Company in Mississippi, its successors or assigns.
"This deed is made, however, upon the express understanding and condition that in the event of the Southern Railway Company in Mississippi, its successors or assigns shall have removed all of the gravel and other materials which it or they may desire from the land hereby sold and conveyed, and shall have removed its track from said land as aforesaid and ceased to use the same, that then and in those events the said East Half (E 1/2) of Northeast Quarter (NE 1/4) of Section 12 and the right-of-way and privileges granted over the said Northeast Quarter (NE 1/4) of Southeast Quarter (SE 1/4) of Section 12 shall revert to us, our heirs, executors, administrators and assigns. It is further understood and agreed that we reserve the right to cultivate free of rent so much of said Southeast Quarter (SE 1/4) of Northeast Quarter (NE 1/4) of said Section as is now cultivated, not exceeding however, 3 1/2 acres, and being south of the located line of said spur track in said Southeast Quarter (SE 1/4) of Northeast Quarter (NE 1/4) of said Section 12."
A paragraph of the deed immediately preceding those above quoted defines the right of way as being definitely located according to an attached blue print made a part of the deed.
Pursuant to the terms of the grant the spur-track located on the right of way was maintained and kept in use by the grantee, its successors and assigns, from the year 1905 until the latter part of the year 1930 or early part of 1931. The spur-track was about one and one-half miles long and extended from the main line of the railroad in a northeasterly direction so as to diagonally cross lands belonging to W.L. Deloach and the certain land described in the deed then belonging to the grantors other than the eighty acres conveyed therein. Gravel was hauled continuously over the spur-track from the pit on the eighty acres, referred to in the testimony as the "Donley Pit," for many years prior to 1928, and was hauled thereover from the year 1928 until the latter part of the year 1930 from what is known as the "Montgomery and Ray Gravel Pit" which was further removed from the main line of the railroad. From the year 1917 until the year 1928 the Donley Pit was operated by one L.S. Hemphill for the railroad company, and from which operation the company received 5c per cubic yard for the gravel; the principal benefit received by the company being derived from the hauling over the spur-track, and from thence to the destination of the cars.
In 1927 it became necessary that an extension of the lease of the right of way over the Deloach land be procured. The sum of $200 was asked by Deloach for such extension. The railroad company thereupon notified Hemphill that he would have to pay one-half of the amount required to get the extension if he desired to continue operating the pit. Hemphill testified that the reason assigned for requiring him to pay half of the amount demanded was that there was not enough gravel left in the pit to justify the railroad company in paying the full amount. He was obligated to keep up the spur-track, but not the lease. Hemphill acceded to the requirement of paying part of the price for the renewal of the lease mainly for the reason that he wanted to later operate the Montgomery and Ray Pit located beyond the Donley Pit. In 1928 Hemphill ceased entirely to remove gravel from the Donley Pit, and thereafter operated the Montgomery and Ray Pit, using the spur-track for the purpose, until the latter part of the year 1930. He testified that his reason for abandoning the Donley Pit was that the strata of gravel there was playing out and that the overburden, that is to say the strata of dirt above the gravel, was from ten to forty feet in depth, and that the pit could not any longer be profitably operated. This fact was reported to the railroad company, and finally, after Hemphill no longer desired to operate the Montgomery and Ray Pit and continue the use of the spur-track, a conference was held with the president and the general counsel of the railroad which resulted in the company giving its written consent both for the operation of the Donley Pit to be abandoned and the spur-track to be taken up and entirely removed in order that the materials might be used in providing a spur-track from another point on the railroad to another gravel pit at Valley Hill some distance away. Accordingly a contract was entered into between the railroad company and Hemphill in March 1931 to carry out this plan and the spur-track was taken up and removed, including the cross ties, spikes, rails and bridges. One of the bridges was more than eighty feet in length, and the testimony shows without conflict that it would have cost between $5,000 and $6,000 to re-lay the spur-track so as to resume the operation of the Donley Pit at any future date. The bill of complaint alleged and the answer did not deny the allegation, and neither did the proof disclose the contrary, that there has never at any time existed any intention or purpose on the part of the railroad company to re-lay this spur-track as a means of further operating the Donley Pit, even if the language of the deed could be construed to grant such right. The proof also discloses that when the railroad company caused the spur-track to be taken up and removed there was left no other means of access from the main line to the Donley Pit except across lands of the appellee, and that there was no other practicable means of access or approach to this pit since it is surrounded by rugged hills in other directions than from toward the railroad. When the removal of the spur-track was complete appellee went into full possession of the eighty acres of land on which the gravel pit was located; and thereupon fenced about thirty acres for pasture, and from time to time cleared land in addition to the three acres in cultivation mentioned in the deed hereinbefore referred to until he had put into cultivation a field of approximately sixteen acres, without objection on the part of appellant. In 1933 the railroad company executed a lease of the gravel pit in favor of A.M. Arpin wherein it was stipulated that the railroad company would protect the lessee by securing the right of way to the pit, and that if the right of way became unavailable for any reason the lease would be cancelled. Arpin removed a few loads of gravel from the pit but appellee thereupon posted his private road against trespassing to prevent it from being cut up and the bridges and culverts ruined by hauling such heavy loads thereover. The lease to Arpin failed of further performance. In 1935 the railroad company executed a lease to the Southland Gravel Company and experienced the same difficulty as to securing a right of way.
No title by adverse possession accrued to appellee prior to the filing of this suit, but his possession and improvement of the land, following the removal of the spur-track, without objection or further effort on the part of the railroad company to have the pit again operated, together with the fact that in removing the spur-track the railroad company had precluded itself from further access to the pit by any practicable means or route, were all held by the chancellor to have clearly shown that at the time the company consented for Hemphill to finally abandon operation of the pit and caused the spur-track to be removed, the grantee, its successors and assigns, had "removed all of the gravel and other materials which it or they desired to remove from the land sold and conveyed." If these acts constituted an abandonment, then the fact now emphasized by appellant that in later years improved methods and appliances have become available to enable appellant to remove the gravel beneath the overburden or strata of dirt at a profit, and that this changed condition has caused the appellant to want to repossess the land and resume operation, would be immaterial on the question of whether the abandonment had become complete at a prior date. Moreover, the deed did not confer the right to re-lay the spur-track after it had once been taken up and removed, and the language of the deed shows that it was contemplated by the parties that the gravel was to be removed over the right of way which was definitely defined and located in the deed of conveyance and the blue print attached thereto and made a part thereof.
In 9 R.C.L. 813, sec. 69 it is stated generally that "an abandonment of an easement will be presumed where the owner of the right does, or permits to be done, any act inconsistent with its further enjoyment." In Scott v. Moore, 98 Va. 668, 37 S.E. 342, 81 Am. St. Rep. 749, it is said: "A party entitled to a right of way or other mere easement in land may abandon and extinguish such right by acts in pais, and without deed or other writing; and a ceasure of the use, coupled with any act indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time. Vogler v. Geiss, 51 Md. [407], 408." The gravel pit was worthless to the grantee, its successors and assigns, to be operated primarily for the profit to be derived from the transportation of the gravel in the railroad business, without the right of way. The use of the right of way is so closely associated with the removal of gravel from the Donley Pit that the one cannot be separated or considered apart from the other in construing the deed in question. It is true that the deed provides that when the grantee, its successors or assigns, "shall have removed all of the gravel and other materials which it or they may desire from the land sold and conveyed, and shall have removed its track from said land and ceased to use the same, that then and in those events the land described . . . and the right of way . . . shall revert to the grantors, their heirs, executors, administrators and assigns;" and that the deed contemplated that the words "then and in those events" should refer both to the removal of all gravel desired and the removal of the spur-track, but the chancellor found from the evidence that both conditions in fact existed and concurred to constitute the abandonment necessary to cause the title to revert; and we are not able to say that the finding of the chancellor as to the intention to abandon was manifestly wrong. In fact, there is no material conflict in the testimony on this issue. The case presents merely an issue as to what facts are sufficient to constitute an abandonment.
In 1 Am. Jur., sec. 11, it is said: "Since abandonment is so largely a question of intention, all the facts and circumstances, and particularly the acts and conduct of the parties, tending to show or disprove the intention to abandon may be taken into consideration, as the intention is ordinarily a question of fact, although the situation of the property and conduct of the former owner may in certain cases be sufficient to imply in law an abandonment. In determining claims of abandonment the courts have generally announced that each case must depend mainly on its own particular circumstances, the evidence of which must be full and clear. Proof of abandonment must be direct or affirmative, or must reasonably beget the exclusive inference of the intentional relinquishment of the property right involved." Also, in 1 Am. Jur., Page 9, sec. 13, it is said: "As in other cases involving the ascertainment of a particular intent, direct evidence of an intent to abandon property or rights of property is not required, but it may be inferred from all the facts and circumstances of the case which are competent to go to the jury as evidence by which that fact may be established. It may be inferred from the conduct of the owner and the nature and situation of the property, without the positive testimony of the owner in affirmation of the fact. However, to justify the conclusion that there has been an abandonment, there must be some clear and unmistakable affirmative act or series of acts indicating a purpose to repudiate ownership. For instance, an intentional abandonment of a right of way by a railway company was shown by its removal of tracks, ties, rails, and bridges, and the neglect and nonuser of the right of way for a period of ten years." It is clear however that an abandonment for a shorter period than ten years will suffice under the principle announced in 1 Am. Jur., Page 7, sec. 9, as follows: "The moment the intention to abandon and the relinquishment of possession unite the abandonment is complete, for time is not an essential element of abandonment." We think that the rule enunciated in the quotations hereinbefore appearing are supported by the decisions generally, and since an understanding of the case at bar has necessitated a full statement of the facts in this opinion we shall not further prolong the same by a citation and discussion of the various decisions in point.
From what we have said, it follows that the decree of the court below must be affirmed.
Affirmed.