On September 17, 1891, Peter Fichtenmueller, the then owner of lot 26 in block 49 of the original townsite of Oklahoma City, conveyed the south 40 feet thereof to Choctaw Coal Railway Company. The deed contained a reverter clause identical with that involved and quoted in Oklahoma City v. Local Federal Savings Loan Ass'n, 192 Okla. 188, 134 P.2d 565, Jones v. Oklahoma City, 193 Okla. 637, 145 P.2d 971, and Fuhr v. Oklahoma City, 194 Okla. 482, 153 P.2d 115. Fitchenmueller died in 1899, and in January, 1900, lot 26 was sold and conveyed by an administrator's deed to J.H. Peters. The sale proceedings and deed did not reserve or except the 40 feet from the operation thereof. In February, 1900, Peters conveyed lot 26 to the Second Congregational Church, the deed containing this clause following the description and as a part of the granting clause: ". . . except that part of said lot lying south of a point forty feet North of the South end of said lot and heretofore conveyed to the C. O. G. R. R. Company." In December, 1929, the interest conveyed to said church, by mesne conveyances, be came vested in Marmaduke Corbyn. The south 40 feet of said lot was used by said railway company and its successors in title for railroad purposes from 1891 until December 4, 1930, when the same was conveyed by the owner, Chicago, Oklahoma Gulf Railroad Company, and its lessee, Chicago, Rock Island Pacific Railroad Company, to Oklahoma City. The city appropriated and has since occupied and used the same for public purposes.
Thereafter, Corbyn and the heirs of Fichtenmueller filed separate condemnation proceedings in reverse against Oklahoma City to assess and recover damages resulting from the appropriation of the south 40 feet of said lot. The two causes were consolidated, and thereafter the heirs of Peters intervened. The trial court found that the heirs of Peters were the owners of the property at the time it was appropriated and awarded to them the condemnation money. Corbyn alone appealed, making the city and the heirs of Fichtenmueller and the heirs of Peters defendants in error. No cross-appeal has been filed by either the city or the heirs of Fichtenmueller.
All parties agree that, under the decisions above cited and other decisions, the reversionary interest in the south 40 feet of said lot was alienable in January, 1900, when the lot was sold to Peters. The sole question is whether the deed from Peters to the church had the effect of excepting from the grant said 40 feet. Corbyn argues the case under three propositions, but they are so interwoven that we do not deem it necessary to discuss the propositions separately.
Corbyn argues that the interest retained by Fichtenmueller in his deed to the railway company was in effect an easement, but he does not point out wherein he could prevail if we should hold it to be an easement. It is sufficient to say that, in Oklahoma City v. Local Federal Savings Loan Ass'n, *Page 485 above, we held that a deed with an identical reverter clause conveyed a determinable fee on condition subsequent, and not a mere easement, and we followed that rule in Jones v. Oklahoma City, above. We adhere to that view. He cites several cases in support of his propositions. We have examined said cases, but do not find them in point. Some of them deal with rules for construing ambiguous deeds, others with exceptions or reservations that are ambiguous, others with deeds that contain no exception or reservation clauses, others with the rule of stare decisis. The exception in the deed involved in the instant case is substantially the same as that in the deed involved in Oklahoma City v. Local Federal Savings Loan Ass'n, above. We there held that the exception is clear, and we hold that the exception here involved is equally as clear. There is no clause in the deed that in the least degree conflicts with the exception clause, hence rules of construction do not come into play. His argument that the exception clause was inserted to protect the warranty is without merit for the reason that it is a part of the granting clause and limits the grant. His argument that the exception clause may have been sufficient to retain to the grantor the land itself but not the right of re-entry is without merit, since the right of re-entry is incidental to, and goes with, the land.
Judgment affirmed.
OSBORN, BAYLESS, WELCH, CORN, and DAVISON, JJ., concur. GIBSON, C.J., and RILEY, J., dissent.