Catherine S. Christoff
Attorneys for Amici Curiae, Indiana Farm
Bureau and "Landowner Class Members"
Henry J. Price
Dennis D. Sutton
Christoff & Christoff
Fort Wayne, Indiana
The Ackerson Group, Chartered
Price & Findling
Attorneys for Appellee
Burt, Blee, Dixon & Sutton
Fort Wayne, Indiana
Catherine S. Christoff
Attorneys for Amici Curiae, Indiana Farm
Bureau and "Landowner Class Members"
Henry J. Price
Dennis D. Sutton
IN RE: ZOHRAB K. TAZIAN and
Appellants (Defendants below),
and JAMES A. LONG, II and
MARY ANN LONG, ROBERT S.
WARNER AND MALEA A. RAMER,
and ELEANOR L. DOEHLA,
Defendants (not participating
in this appeal)
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
This case is one of several lawsuits in our state in which the ownership of land
formerly constituting railroad rights-of-way is contested. We agree with the Court of
Appeals and the trial court that the nineteenth century deed at issue here conveyed fee
simple absolute to the railroad.
Neither party disputes the following facts. Alice Cline purchased a 4.24 acre strip of land in Allen County from United Railroad Corporation/Penn Central Corporation by quitclaim deed on May 15, 1985, and duly recorded the deed. This strip of land abutted the property of Zohrab and Naomi Tazian.See footnote 1 United Railroad Corporation/Penn Central Corpora tion was the successor railroad in interest to the Fort Wayne Jackson & Saginaw Railroad Company ("Fort Wayne Railroad"). The Fort Wayne Railroad acquired its interest in the strip of land from S. Cary Evans and his wife through a handwritten deed dated February 10, 1873. The interpretation of this deed is the single issue on appeal. The handwritten deed from Evans to the Fort Wayne Railroad reads as follows:
This indenture made this 10th day of February AD 1873 between Cary Evans & wife of the first part and the Fort Wayne, Jackson & Saginaw Railroad Company of the second part. Witnesseth that the said parties of the first part in consideration of five hundred dollars to them in hand paid by the party of the second part the receipt whereof is hereby acknowledged and in further consideration of the benefits antici pated from said railroad when constructed do grant and convey and warrant to the party of the second part and their successors and assigns a strip of land fifty feet in width on West side of railroad over, across, and through the following described tract of land situated in the County of Allen and State of Indiana, viz:
The South West Quarter of Section Two (2), Township Thirty-one (31) North,
Range Twelve (12) East, formerly owned by William . . . Hawley deceased deeded
by Wm. E. Hawley to S.C. Evans recorded record 55, page 438 said strip of ground
to be on and along the central line of said railroad as the same shall be finally located
on such tract of land and of such width on each side of said central line as the final
location of said railroad by said company shall determine. With the right also for the
safety of said railroad to cut down standing timber on the outside of either outer line
of said strip of ground which by falling would endanger said railroad or any of its
structures to have and to hold all and singular the said premises in and by these
presents released and conveyed unto the said Fort Wayne, Jackson & Saginaw
Railroad Company and their successors and assigns forever for the uses and purposes
In witness whereof, the said parties of the first part have hereunto set their
hands and seals this day and year first above written.
Cline and the Tazians each filed cross motions for summary judgment to quiet title
in the disputed land. The trial judge granted summary judgment in favor of Cline and later
accepted Cline's proposed findings of fact, conclusions of law and decree quieting title. The
Tazians appealed and a divided Court of Appeals "affirmed the trial court in its entirety."
Tazian v. Cline, 673 N.E.2d 485 (Ind. Ct. App. 1996).
The Tazians seek transfer, contending the trial court and Court of Appeals erred in
construing the deed from Evans to the Fort Wayne Railroad as conveying a fee simple
Indiana courts frequently face issues related to the ownership and use of parcels of land formerly used as railroad rights-of-way. This Court has recently done so in Consoli dated Rail Corp., Inc. v. Lewellen, 682 N.E.2d 779 (Ind. 1997); Calumet Nat'l Bank as Trustee v. American Tel. & Tel. Co., 682 N.E.2d 785 (Ind. 1997); and Hefty v. All Other Members of the Certified Settlement Class, 680 N.E.2d 843 (Ind. 1997). Some such cases require the construction of nineteenth and early twentieth century deeds conveying interests to railroads.See footnote 2 Therefore, as we interpret the nineteenth century deed at issue in this case, we do so with the aid of nearly a century's worth of common law decisions dealing with conveyances to railroads.
Here we must determine whether the Fort Wayne Railroad held fee simple to the strip of land or whether the Fort Wayne Railroad held a mere easement. If the Fort Wayne Railroad held a mere easement, then summary judgment in favor of Cline would have been improper as that easement would have been extinguished upon abandonment by the United Railroad Corporation/Penn Central Corporation and United Railroad Corporation would have had no interest to convey to Cline. However, if the Fort Wayne Railroad held fee simple title to the parcel of land, Cline owns the strip of land and summary judgment in favor of Cline was proper.
In a quiet title action, one must recover upon the strength of his or her own title.
Ross, Inc. v. Legler, 245 Ind. 655, 658, 199 N.E.2d 346, 347 (Ind. 1964). In determining
the interest conveyed to the railroad, a court will seek to give effect to the intent of the
parties. Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co. v. Coburn, 91 Ind. 557,
[O]ne of the most important rules in the construction of deeds is so to construe them
that no part shall be rejected. The object of all construction is to ascertain the intent
of the parties and it must have been their intent to have some meaning in every part.
It never could be a man's intent to contradict himself; therefore we should lean to
such a construction as reconciles the different parts, and reject a construction which
leads to a contradiction. . . ."
Ross, Inc., 245 Ind. at 659, 199 N.E.2d at 348 (citing Claridge v. Phelps, 105 Ind. App. 344,
347, 11 N.E.2d 503, 504 (1938)) (emphasis in original). Accordingly, in construing a deed,
a court should regard the deed in its entirety, considering the parts of the deed together so
that no part is rejected. Brown v. Penn Central Corp., 510 N.E.2d 641, 643 (Ind. 1987).
"[W]here there is no ambiguity in the deed, the intention of the parties must be determined
from the language of the deed alone. Brown, 510 N.E.2d at 641 (citing Enderle v. Sharman,
422 N.E.2d 686, 692 (Ind. Ct. App. 1981))." Hefty, 680 N.E.2d at 853. Courts consider the
"known use to which the property was to be subjectedSee footnote
and therefrom give the conveyance
the effect intended by the parties." Ross, Inc., 245 Ind. at 661, 199 N.E.2d at 349 (footnote
We begin by looking at the granting clause of the deed. The deed states "in consider
ation of five hundred dollars to them in hand paid . . . and in further consideration of the
benefits anticipated from said railroad when constructed do grant and convey and warrant
. . . a strip of land . . . over, across, and through the following described tract of land."
We agree with the trial court and the Court of Appeals that the language "do grant and convey and warrant" is consistent with the controlling property statute in effect at the time of conveyance (and still in place today) which provides that any conveyance worded as: "'A.B. conveys and warrants to C.D.' [here describe the premises] 'for the sum of' [here insert the consideration] shall be deemed and held to be a conveyance in fee simple to the grantee . . . ."See footnote 4 However, as pointed out by Judge Staton in his dissent, that same statute also provides that "if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed."See footnote 5 Although the use of this language "grant and convey and war rant" favors the construction of the deed as conveying a fee simple absolute to the railroad company, such language is just a factor in determining whether the parties intended to grant a fee or an easement. We will look to other parts of the deed to see if the grantor expressed an intention to convey a lesser estate than fee simple.
The granting clause conveys a "strip of land fifty feet in width on West side of
railroad . . . over, across, and through" the described tract of land. (Emphasis added.)
A deed that conveys a right generally conveys only an easement. [Richard S.]Brunt Trust[v. Plantz], 458 N.E.2d [251,] 253 [Ind. Ct. App. 1983]. The general rule is that a conveyance to a railroad of a strip, piece, or parcel of land, without additional language as to the use or purpose to which the land is to be put or in other ways limiting the estate conveyed, is to be construed as passing an estate in fee, but reference to a right of way in such conveyance generally leads to its construction as conveying only an easement. L. & G. Realty & Construction Co. v. Indianapolis, 127 Ind. App. 315, 322, 139 N.E.2d 580, 585 (1957).
Brown, 510 N.E.2d at 644.
The granting clause in the present deed does not appear to be limited to conveying only a
nor does the deed describe the interest conveyed as a right of way. Rather, the
particular language provides that the Evanses "do grant and convey and warrant . . . a strip
of land." Applying the settled general rule of this state, this language supports construction
of the deed as conveying fee simple to the railroad.
Arguing that "[t]he grantor intended to limit the railroad to a right to travel across,
over, and through the land using the granted corridor, but no right to use the property itself
for any other purpose[,]" amici point to a number of cases in which the words over, across
or through appear in deeds ultimately construed as easements. (Br. of Amici at 10).See footnote
Although that appears to be the case, in each and every one of those cases, the deeds in
question also contained other language supporting the finding of an easement_language
limiting the use to railroad purposes and/or referencing a right of way. See Brown, 510
N.E.2d at 643 ("the Right of Way for the use of the Railroad of said Company over and
across. . . ."); Chicago Ry. Co. v. Geisel, 119 Ind. 77, 78, 21 N.E. 470, 470 (1889) ("release,
relinquish, and forever quitclaim . . . the right of way for so much of said railroad . . . as
may pass through the following . . ."); Ingalls v. Byers, 94 Ind. 134, 135 (1883) ("do give
grant, bargain, sell and convey to the said company the right of way for the use of the said
railway over and across" the described property); L. & G. Realty, 127 Ind. App. at 318, 139
N.E.2d at 583 ("CONVEY and WARRANT . . . the Right of Way for Railroad and other
purposes over, upon and across the following real estate . . . ."); Lake Erie & Western R.R.
Co. v. Ziebarth, 6 Ind. App. 228, 234, 33 N.E. 256, 258 (1893) (conveys and warrants " the
right of way for the construction and operation of said company's railroad . . . through and
over the following described land. . . .")(Emphasis added.)
We do not find that the cited cases control our construction of the deed at issue
today. The deed uses the expression "over, across and through" to describe the strip of land
being conveyed. In contrast, the cited cases use the expression to describe the use the
railroad will make of the parcel being conveyed. This deed contains no language in the
granting clause limiting the uses or purposes for the land nor does it contain the term "right
As evidence of an intent to convey an easement, Tazian and amici point to the deed
language providing that the consideration paid would be "five hundred dollars" and "in
further consideration of the benefits anticipated from said railroad when constructed."
When attempting to ascertain the intent of the parties to a conveyance to a railroad, appellate
courts of this state look at the consideration paid to the grantee railroad. "[W]here the
consideration is nominal or where the only consideration is the benefit to be derived by the
grantor from the construction of the railroad rather than the full market value for the interest
acquired reflects the intent to create an easement." Richard S. Brunt Trust, 458 N.E.2d at
255 (citations omitted). However, the Richard S. Brunt Trust court noted, "[a]lthough such
consideration is not by itself persuasive that the parties intended to convey an easement, it
is just one more factor held to indicate an easement . . . ." Id.
In the present deed, the consideration was "five hundred dollars to them in hand
paid" by the Fort Wayne Railroad Company and "in further consideration of the benefits
anticipated from said railroad when constructed." The record fails to show the full market
value of the strip of land in 1873. Although we know that the consideration paid is more
than nominal and more than the mere benefit to be derived by the grantor from the construc
tion of the railroad, absent some record of the value of the land in 1873, we do not think that
the amount of consideration paid to Cary Evans and his wife is conclusive as to the intent
of the parties.See footnote
Amici contend that because the deed fails to convey a specific strip of land (by only conveying a "strip of ground to be on and along the central line of said railroad as the same
shall be finally located on such tract of land and of such width on each side of said central
line as the final location of said railroad by said company shall determine"), the grant cannot
occur without the actual construction of the railroad. The argument goes that this fact "is
fundamentally inconsistent with the holding of the [Court of Appeals] majority that the deed
conveyed unrestricted fee simple interest in the property for any purpose." (Br. of Appellant
at 10-12.) We are not convinced by this argument.
In a conveyance, the office of a description is not to identify the land but to furnish
the means of identification. Edens v. Miller, 147 Ind. 208, 211, 46 N.E. 526, 527 (1897).
It is true that the deed in question does not identify the particular strip of land. However,
the description does provide the means of identifying that strip of land _ namely, the strip
of land determined by the railroad company to locate the central line of the railroad within
"The South West Quarter of Section Two (2), Township Thirty-one (31) North, Range
Twelve (12) East, formerly owned by William . . . Hawley deceased deeded by Wm. E.
Hawley to S.C. Evans recorded record 55, page 438. . ." Accordingly, we do not interpret
this language of the deed to evidence the intent to convey only an easement.
As no part of the deed is to be rejected, we now look to the language following the description of the land (including that part of the deed customarily referred to as the "haben
dum" clause See footnote
With the right also for the safety of said railroad to cut down standing timber on the outside of either outer line of said strip of ground which by falling would endanger said railroad or any of its structures to have and to hold all and singular the said premises in and by these presents released and conveyed unto the said Fort Wayne, Jackson & Saginaw Railroad Company and their successors and assigns forever for the uses and purposes therein expressed.
The Court of Appeals majority concluded that this clause "does not specifically limit the
granting clause's conveyance of a fee simple" and the language of the deed "conveyed a fee
simple estate . . . without any limitation on the uses or purposes of the land." The dissent
and the Tazians argue that the phrase "refers to the previous discussion of railroad opera
tions within the deed, thus limiting the grant." (Br. of Appellant at 9). Particular debate
centers around the concluding language of the habendum clause, "for the uses and purposes
therein expressed." In that the habendum clause serves to explain the granting clause in a
deed, see footnote 9, supra, we read the concluding language to be a cross-reference to the
granting clause _ "for the uses and purpose therein expressed," i.e., the uses and purposes
expressed in the granting clause. As earlier discussed, the granting clause does not limit the
uses and purposes of the strip of land. As such, we view this language as merely restating
that the grantee's uses and purposes are not limited.
Finally, without being dispositive, we note the habendum to the grant being "for
ever," a temporal descriptor more consistent with the conveyance of a fee than of an
easement here. See United States v. 1.44 Acres of Land in Montgomery Co., Md., 304
F.Supp. 1063, 1072 (D.Md. 1969)(habendum and granting clauses conveying property to a
railroad "forever" construed to convey fee simple title); cf. Geisel, 119 Ind. at 78 (instru
ment purporting to 'release, relinquish and forever quitclaim to the [railroad] the right of
way" held to grant easement, not fee).
The appellate courts of this state have frequently construed eighteenth and early
nineteenth century deeds conveying interests in strips of land to railroads as conveying mere
easements. However, the deed we examine today is different.
This deed is not a preprinted form prepared by the railroad. But see Brown, 510
N.E.2d at 643; Richard S. Brunt Trust, 458 N.E.2d at 252 (both stating that deeds prepared
by railroad are to be construed in a light most favorable to grantors).
More importantly, this deed does not describe the interest conveyed as a railroad right of way nor does the language limit the conveyance as for railroad purposes or railroad uses. See Brown, 510 N.E.2d at 643 (granting the "Right of Way for the use of the Railroad . . . over and across" the land, limiting a portion of the grant "for Depot and Rail Road purposes,"); Ross,Inc., 245 Ind. at 662, 199 N.E.2d at 349 (holding where deed expressly defined interest as "right of way" deed conveyed only easement); Geisel, 119 Ind. at 78, 21 N.E. at 470 (holding that grant of "right of way for so much of said railroad" is grant of an easement and implies that fee remains in grantor); Douglass v. Thomas, 103 Ind. 187, 189, 2 N.E. 562, 563 (1885) (deed conveyed "right of way" to "have and hold the rights and privileges . . . so long as the same shall be required for the uses and purposes of said road"); Ingalls, 94 Ind. at 135-136 (granting "the right of way for the use of the said railway over
and across" the land "clearly imports an intention to convey an easement . . . for a particular
purpose"); Lake County Trust Co. v. Lane, 478 N.E.2d 684, 685-686 (Ind. Ct. App. 1985)
(conveying right of way "in trust for such railroad company or companies as might cause a
railroad to be constructed"); Richard S. Brunt Trust, 458 N.E.2d at 253 (releasing "the right
of way, for railroad purposes only, for such railroad . . . ."); L. & G. Realty, 127 Ind. App.
at 318, 319, 139 N.E.2d at 583 (conveying "Right of Way for Railroad and other purposes"
while grantees "promise and agree that they will build their tracks" and if not the right of
way reverts to the grantor); Ziebarth, 6 Ind. App. at 234, 33 N.E. at 258 (concluding deed
language clearly imports intent to convey easement where grant for nominal consideration,
grant of right of way for construction and operation of railroad through and over land, and
grant conditioned upon strip of land being used for railroad purposes only with reversion to
grantor once land ceases to be used for railroad purposes).
We grant transfer, summarily affirm the opinion of the Court of Appeals and affirm
the trial court's grant of summary judgment in favor of Cline.
SHEPARD, C.J., and SELBY, J., concur.
DICKSON, J., dissents without separate opinion.
BOEHM, J., not participating.
Portion of deed beginning with the words "To have and to hold". Bannin v. Peck, 266
App.Div. 209, 41 N.Y.S.2d 668, 670. The clause usually following the granting part of the
premises of a deed, which defines the extent of the ownership in the thing granted to be held
and enjoyed by the grantee. New York Indians v. U.S., 170 U.S. 1, 18 S.Ct. 531, 42 L.Ed.
927. The office of the "habendum" is properly to determine what estate or interest is granted
by the deed, though office may be performed by the premises, in which case the habendum
may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, estate
granted in the premises. Claridge v. Phelps, 105 Ind.App. 344, 11 N.E.2d 503, 504.
Black's Law Dictionary 700 (6th ed. 1990) defines granting clause as follows:
That portion of a deed or instrument of conveyance which contains the words of transfer of
a present interest. New Home Building Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d
See New York Indians v. United States, 170 U.S. 1, 20 ("The object of the habendum clause is said
to be 'to set down again the name of the grantee, the estate that is to be made and limited, or the
time that the grantee shall have in the thing granted or demised, and to what use.' It may explain,
enlarge, or qualify but cannot contradict or defeat, the estate granted by the premises, and where the
grant is uncertain, or indefinite concerning the estate intended to be vested in the grantee, the
habendum performs the office of defining, qualifying or controlling it." (Citations omitted)); Prior
v. Quackenbush, 29 Ind. 475, 478 (1868) ("The premises of a deed are often expressed in general
terms, admitting of various explanations in a subsequent part of the deed. Such explanations are
usually found in the habendum. The office of the habendum is properly to determine what estate or
interest is granted by the deed, though this may be performed and sometimes is performed, by the
premises, in which case the habendum may lessen, enlarge, explain, or qualify, but not totally
contradict or be repugnant to the estate granted in the premises.").
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