I cannot concur in the majority opinion in this case for the following reasons:
The assignments which charge that the trial court erred in its construction of the deeds, under which appellees claim title, as to the class of estate thereby conveyed, and in holding that the conditions of said deeds could be satisfied and rendered of no future effect by compliance therewith for a long period of time, and in holding that only the grantors and their heirs could take advantage of the conditions should be sustained.
I concede that the majority opinion is a proper disposition of this appeal if the construction of the deeds relied on by appellee is correct, i. e., if the deeds hereinafter copied in full, convey the fee in the land described therein upon condition subsequent, then H. B. and C. B. Stevens and Z. T. White cannot recover in this action, in the condition of the record now before us, and I further agree that the appellee should not recover against the interveners, heirs of Mills and Hague, for they still retain the reversionary interest, and upon the condition being broken in the future the then heirs, under present conditions, are entitled to again possess the fee.
The majority opinion may be correct; there is no suggestion in the opinion as to the line of reasoning, or upon what wording or stipulations in the deeds the construction therein asserted is arrived at; it merely asserts that:
"We hold that the foregoing deeds convey the title to the land in fee, and not the mere easement for right of way, depot grounds and railroad purposes, as contended for in this appeal by the appellants. It is clear from the language of the deeds that the parties intended to convey the land and not the mere easement therein."
The only authority cited for this holding is Devlin on Real Estate, § 959, which simply passes upon the question of how the fee passes upon condition subsequent, and does not attempt to give any rule by which we are to determine whether the fee was in fact conveyed by the instruments construed. As I view these deeds, the least that can be said of them is that they come squarely within the case of McBride v. Farmers', etc., Gin Co., 152 S.W. 1135, and Stewart v. Blain, 159 S.W. 928, wherein it was held that deeds containing substantially the same words of limitation were not strictly conditions subsequent, but of conditional limitation, and that a breach thereof inured to the benefit of the owner of the title. But in my opinion, when viewed in the light of the established rules of construction of deeds, in this state, these deeds convey an easement only. The deeds relied on, copied in full from the record, are as follows:
"Know all men by these presents, that we, Thomas T. Gantt and David Rankin of St. Louis, Missouri, trustees of the estate of Robert Campbell, Virginia Campbell, his wife, by their deed of February 14, 1877, registered in El Paso county, Texas January 8, 1881, parties of the first part by virtue of the power vested in us by said deed and at the written request of said Virginia J. Campbell and of Hugh Campbell, Jr., as evidenced by their signatures hereto, and in consideration of one (1) dollar to us paid by Charles Crocker of San Francisco the party of the second part. Do by these presents grant, bargain and sell unto said Charles Crocker all our right, title and interest in the following real estate situated in the city of El Paso, El Paso county, Texas, and located between the southerly line of Franklin street and the northerly line of St. Louis street, said lines being produced northeasterly conforming to other directions as shown on the map of El Paso as surveyed and drawn by Anson Mills and lying east of a line parallel of east line of Kansas street and situated three hundred and thirty (330) feet therefrom measured along center line of Main street produced northerly and in conformity with the direction of Main street, as shown on said map of Anson Mills and more particularly described as follows:
"Beginning at a point situated north fifty-three degrees east (Nor. 53° E.) and distant seventy (70) feet from northeasterly corner of block number forty-three (43) of Anson Mills' survey and map of El Paso, thence extending north fifty-three degrees east (No. 53 deg. E.) fifteen hundred and eighty (1580) feet; thence south thirty-seven degrees east (S. 37° E.) five hundred and ninety (590) feet to place of beginning and containing twenty-one and 4/10 acres more or less.
"To have ana to hold said real estate with all its appurtenances unto said Charles Crocker, his heirs and assigns forever. On condition nevertheless that said real estate shall be used exclusively for railroad depot grounds and railroad business purposes and that the freight and passenger depots to be built and used by said second party or his assigns shall be within two hundred and ninety-five (295) feet in a northerly or southerly direction from the center line of Main street and within three hundred and sixty-five feet (365) of the center line of Kansas street as said streets are shown on said map of Anson Mills or that said freight and passenger depots shall be at any point easterly or westerly from the intersection of said Main street and Kansas street that said first and second parties their successors or assigns may mutually agree upon and that if the said premises shall cease wholly to be used for the purposes herein contained they shall revert to the grantors or their successors.
"In testimony whereof we have hereunto set our hands and seals and the said Virginia J. Campbell and Hugh Campbell, Jr., have signed these presents this the 25th day of January, A.D. 1881."
"Know all men by these presents, that we, Thomas T. Gantt and David Rankin of the city of St. Louis, state of Missouri, trustees under a certain deed of settlement to us made to Robert Campbell (now deceased) dated February 14th 1877, and acting herein at the request of Virginia J. Campbell and Hugh Campbell, Jr., of the same place (as evidenced by their signatures to this deed) in consideration of the sum of one (1) dollar to said Virginia J. Campbell and Hugh Campbell, Jr., and the further sum of one dollar to us paid by the Galveston, Harrisburg San Antonio Railway Company, a corporation, incorporated under the laws of the state of Texas the receipt of which several sums of money is by said recipients thereby respectively acknowledged, have remised and released, and hereby do remise, release and quitclaim unto said Galveston, Harrisburg San Antonio Railway Company and its successors and assigns forever, the following described real *Page 653 estate, lying and being in the city of El Paso, county of El Paso, state of Texas, and described as follows, to wit: All there and each of their interests in and to all that certain piece or parcel of land situated in the county of El Paso and state of Texas and described as follows, to wit: A strip of land one hundred (100) feet wide lying fifty (50) feet wide on each side of the center line of said company's railway where the same is located through the lands of the parties of the first part from the point where said center line enters the northerly boundary line of said land being the southerly boundary line of the Hart survey number nine (9) as shown on the map of the city of El Paso made and surveyed by Anson Mills to the point where said center line reaches the center line of San Francisco street, including all the land of the parties of the first part lying within thirty-five (35) feet of the center line of said railway in block designated as block number forty-eight (48) of the Anson Mills map, also, the right of way for said company's railway through Main street extended to the easterly boundary line of the lands of said parties of the first part. Area of land so granted, four 75/100 (4 75/100) acres more or less. Also all those pieces or parcels of land lying and being in the city of El Paso and described as follows, to wit: the northerly half of block numbers three (3), ten (10) and forty-two (42) and the southerly half of blocks numbers eight (8), nine (9) and forty-three (43) as the same are laid off and designated upon the map of the city of El Paso surveyed and made by Anson Mills; the said halves of said blocks 3, 10, 42, 8, 9, and 43, being the halves lying upon Main street and extending back to a line running through the center of said blocks and parallel with Main street and including also all the right, title and interest in or claim to the rights of the said parties of the first part into and over the streets included within the boundary of a line extending around the said halves of blocks. To have and to hold, all and singular, the premises, with all the rights, privileges, and appurtenances thereunto appertaining unto said Galveston, Harrisburg San Antonio Railway Company and its successors and assigns so long as the said land shall be used as a railroad right of way and if not so used shall revert to the grantors herein. In witness whereof, said Thomas T. Gantt and David Rankin as grantors and said Virginia J. Campbell and Hugh Campbell for the purposes mentioned have hereunto set their hands and seals this the eighth day of June, A. D. eighteen hundred and eighty-one."
"This indenture made the ninth (9th) day of April in the year of our Lord one thousand eight hundred and eighty-one between W. W. Mills and J. P. Hague, of the county of El Paso and state of Texas, parties of the first part, and the Galveston, Harrisburg San Antonio Railway Company, a corporation duly incorporated under the laws of the state of Texas, party of the second part, witnesseth: Said parties of the first part for and in consideration of the sum of one dollar lawful money of the United States of America to them in hand paid by said parties of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell and convey unto the party of the second part, and to its heirs and assigns forever all those certain lots, pieces or parcels of land situate, lying and being in the city of El Paso, county of El Paso and state of Texas, bounded and particularly described as follows, to wit: Land situated in the city and county of El Paso, state of Texas, and located between the southerly line of Franklin street and the northerly line of Saint Louis street, said line being produced northeasterly conforming to the directions as shown on the map of the city of El Paso as surveyed and drawn by Anson Mills and lying east of a line parallel to the east line of Kansas street, and situated three hundred and thirty (330) feet therefrom, measured along the center line of Main street produced northeasterly and in conformity with the direction of Main street as shown on said map of Anson Mills, and more particularly described as follows: Beginning at a point situated north 53 degrees east and distant seventy (70) feet from the northeasterly corner of block number forty-three (43) of Anson Mills survey and map of El Paso; thence extending north 53 degrees east fifteen hundred and eighty (1580) feet; thence south 37 degrees east five hundred and ninety (590) feet; thence south 53 degrees west fifteen hundred and eighty (1580) feet; thence north 37 degrees west five hundred and ninety (590) feet to the place of beginning and containing an area of twenty-one and four tenths (21.4) acres of land, more or less; the said tracts or parcels of land to be used for depot grounds and railway purposes, by said company on conditions set forth in deed of Thomas T. Gantt and David Rankin of Saint Louis, Missouri, trustees of the estate of Robert Campbell, to Charles Crocker, dated January 25th, A.D. 1881, except that the freight and passenger depots therein named may be located three hundred and thirty (330) feet further northeastwardly from the center line of Kansas street. And in case the said parcels of land are not used by said railway company for passenger and freight depots and railway purposes, then in that case all the right, title and interest therein conveyed shall revert to and again be vested in the said parties of the first part; and if said railway company abandon the use of said land for said purposes, all buildings and fixtures erected thereon by said company shall be held part and parcel of said land and shall revert with the same to the said parties of the first part. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever as well in law as in equity of the said parties of the first part of, in or to the above described premises and every part and parcel thereof with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances unto the said party of the second part, its heirs and assigns forever for the purposes and on the conditions above set forth.
"In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written."
As I view this case the primary rule to govern us in the construction of the writings before us is that the deeds themselves must alone be looked to, for parol evidence is not admissible. G., H. S. A. Ry. Co. v. Pfeuffer, 56 Tex. 70; East Line Ry. Co. v. Garrett, 52 Tex. 133.
Article 1106, Rev.Civ.Stat.Tex. 1911:
"Every estate in lands which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law."
This statute in effect abolishes the ironclad rules of construction of deeds under the old common law by reason of form or particular words used, and, construed in the light of the decisions of our Supreme Court, *Page 654 means that the intention of the party making the deed must be arrived at by giving effect to every part of the instrument if it can be done. If that cannot be done, and it is found that the deed contains inherent conflict of intentions, then the main intention, the object of the grant being considered, shall prevail.
The parts of the deed which expressly indicate the object of the grant or interest which the railroad company is intended to take is plain, and the rule that courts will confer the greatest estate on the grantee that the terms of the grant will permit must necessarily be subordinated to the rule that every part of the deed should be harmonized and given effect to if it can be done, with a view, always, of determining the intent of the parties, if possible. "Said real estate shall be used exclusively for railroad depot grounds and railroad business purposes," and, that there might be no mistake about the intention of the grantors, they add, "and that if said premises shall cease wholly to be used for the said purposes they shall revert to the grantors or their successors." In addition to the above the nominal consideration, the size, the relative position and shape of the land described all point out the class of estate intended to be conveyed.
The wording of the deed quoted above conveys to the mind only one meaning, viz., that the land conveyed is conveyed for a use for railroad purposes, the very nature of right ordinarily held by railway companies for the purposes for which they were by law created — an easement. Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453; Reichenbach v. Washington Short Line, 10 Wn. 357, 38 P. 1126; Olive Stermenburg Co. v. S. S. T. Ry. Co., 11 Tex. Civ. App. 208, 33 S.W. 139. To construe this deed as a conveyance of right of way, an easement, every word and sentence of the deed will be given effect to, and the railway company takes what is clearly indicated by every part of the deed was intended it should have, "the use of the land for railroad purposes forever, if such use was continuous."
To hold the quoted words to have been used in any other sense is to erase out of the deed whole sentences, and, those sentences being restrictions as to the use of the premises conveyed, make it obvious that the conveyance was not in fee, for in that case the grantee could use the land as it pleased until the condition happened. Harris v. Johnson,31 N.J. Eq. 174; Carpenter v. Graber, 66 Tex. 465, 1 S.W. 178; Pugh v. Mays, 60 Tex. 191; Hancock v. Butler, 21 Tex. 804.
And if the land was not conveyed in fee, then the title of plaintiffs was never divested and the owner of the land, whoever he may be, can take advantage of the conditions. John Ruch v. City of Rock Island,97 U.S. 693-1101, 24 L.Ed. 1101.
Where in a suit by the owner, the plaintiffs having shown title to the land and the defendant to the easement, plaintiffs are entitled to recover judgment therefor, subject to the right of the defendant to enjoy the easement. Hays v. T. P. Ry. Co., 62 Tex. 397; Lyon v. McDonald,78 Tex. 75, 14 S.W. 261, 9 L.R.A. 295.
What has been said above applies with equal force to the other deeds and disposes of the thirteenth and fifteenth assignments. It follows, therefore, that the trial court erred in giving judgment for defendants upon their cross-action as complained of in the eighth, ninth, and fourteenth, fifteenth, and seventeenth assignments, especially in view of the finding of the court that the condition had not been broken. The only way that the railway company could obtain the fee-simple title to land in question would be by purchase or adverse holding after abandonment for railway purposes for sufficient length of time.
That portion of the judgment of the lower court which decrees that plaintiff have nothing should be reformed and judgment here rendered for plaintiffs and interveners for the fee-simple title to the land sued for, and that defendant take nothing by cross-action, and that defendant have its easement, etc.