Opinion
19251.
SUBMITTED FEBRUARY 14, 1956.
DECIDED APRIL 9, 1956.
Complaint for land. Before Judge Cobb. Walton Superior Court. November 21, 1955.
Orrin Roberts, Marvin D. Pierce, Jr., for plaintiff in error.
A. M. Kelly, Erwin, Nix, Birchmore Epting, Wm. L. Preston, contra.
It was not error to sustain a general demurrer to the petition in this case.
SUBMITTED FEBRUARY 14, 1956 — DECIDED APRIL 9, 1956.
J. Hal Jackson and Royce A. Jackson, Executors of the will of J. Roy Jackson, brought this suit against Carl Sorrells, seeking to recover certain described land. The only question involved was the construction of a deed executed in 1883 by C. L. Hayes to Gainesville, Jefferson Southern Railroad Company, and more particularly whether this deed conveyed to the railroad company an easement to construct and operate a railroad over the said land or whether the deed conveyed title to the land. The deed in question reads as follows: "In consideration of the benefit and advantages accruing to me by the construction of the Gainesville, Jefferson, and Southern Railroad, as well as the receipt of Ten Dollars to me paid, I have this day bargained and sold, and do hereby transfer and convey unto the Gainesville, Jefferson, and Southern Railroad Company and its successors and assigns, all the land contained within one hundred feet in width on each side of its track, or road-bed (measuring from the center) of any portion of the lot of land hereinafter described through which said Railroad may be constructed. The land hereby conveyed being the track whereon I live near Monroe, containing one hundred and thirty-seven acres, more or less. Reserving the right to cultivate up to road bed, the Road agreeing to keep up all stock gaps. To have and to hold said tract or parcel of land to the said Railroad Company, for Railroad purposes, forever in fee simple."
The judge of the court below sustained a general demurrer to the petition as amended, thereby finding in effect that the deed above quoted conveyed an easement in the land rather than title to the land. To this judgment the plaintiff in the court below excepted and assigns the same as error.
The plaintiffs in error claim the land in question as successors in title under the deed above set out. Therefore, it follows that, if the deed does not convey title, plaintiffs in error have no claim to the land in question. This court has many times been called upon to construe deeds such as the one here involved, conveying an interest in land to railroad companies for railroad purposes. It has often been pointed out that the question of whether the interest conveyed was an easement or title to the land was always a difficult one, and that each case was dependent upon its own particular facts and circumstances.
The plaintiffs in error cite Jackson v. Rogers, 205 Ga. 581 ( 54 S.E.2d 132), in which the deed there under consideration was held to convey title, as controlling. However, the deed there involved contained no reservation to the grantor of any right in the land in question. In the instant case, the grantor reserved the right to cultivate the land up to the road bed and required the railroad to keep up all stock gaps. In this respect, the deed in the instant case is similar to the deeds considered in the cases of Gaston v. Gainesville c. Electric Ry. Co., 120 Ga. 516 ( 48 S.E. 188), Georgia c. Ry. v. Swain, 145 Ga. 817 ( 90 S.E. 44), Rogers v. Pitchford, 181 Ga. 845 ( 184 S.E. 623), and Askew v. Spence, 210 Ga. 279 ( 79 S.E.2d 531). In each of those cases it was held that the deed conveyed an easement over the lands of the grantor.
While it is true that no deed involved in either of the cases cited above was identical with that here involved, the rulings therein made are applicable in principle to the question in the instant case. The deed considered in Gaston v. Gainesville c. Ry. Co., supra, presented a weaker case for holding that only an easement was conveyed than that here involved. The same may be said of each of the other cases above cited. It was clearly the intention of the parties to the deed in the instant case at the time it was executed to convey and to receive an easement to construct and operate a railroad over the lands of the grantor, and that the grantor should retain the use of the land not actually used as a road bed. As indicating this intention, the fact that the consideration was nominal, that the grantor retained the right to cultivate the land not in actual use as a roadbed, that the grantee was required to keep up stock gaps, that the deed recites that the land is conveyed for use as a railroad, that the land conveyed was a strip out of the middle of the grantor's tract with no access between them, and other facts and circumstances surrounding the transaction should be considered. After a careful consideration of all these and other facts and the cases above cited, it clearly appears that the deed here involved was intended to convey and did convey only an easement to construct and operate a railroad over the land in question. It follows it was not error to sustain a demurrer to the petition.
Judgment affirmed. All the Justices concur.