dissenting:
The question determined in this case being one of first impression here, with but few decisions of it in other jurisdictions, and they being in conflict, I deem it my duty to state the grounds of my dissent.
The decision in such a case should be based upon broad prinpiples of established law, and not upon narrow, technical, ‘and largely outgrown rules, which oft times defeat the plain demands of justice.
The majority opinion does not meet this requirement. It quotes the rule that, in the construction of written instruments, effect should be given to the ascertained intent of the parties; but fails to apply it in construing the deed here under consideration. It makes the granting clause controlling, ignoring other language in the deed, and the circumstances surrounding its making, as shown in evidence, by which it clearly appears that the intent of the parties was not expressed in the granting clause. From *429that clause alone, it would appear that a fee simple title was conveyed, with nothing to indicate the proposed use of the land. Yet the opinion states that the land was acquired for a railroad right of way, a statement which appears from other parts of the deed to be entirely correct. The result is that while the court was aware that the deed was given for a right of way, it refuses to recognize the effect of that fact, and determines the question solely on the language of the granting clause.
Having quoted the railroad company’s charter to the effect that it may acquire and hold real property necessary or convenient to the operation of its railroad, the opinion states that “the limitation is upon the quantity of land, not upon the interest in land.” I see no ground for this conclusion. The question here is as to the powers of Wyoming corporations to take land, not upon the quantity they may take. The contention of counsel is that they may take and hold land only as needed for the purpose of their organization. This is directly declared in the statute quoted, “no corporation shall possess or exercise any corporate powers except as they shall be necessary to the exercise of the powers so enumerated.”
Title to lands, whether acquired by purchase or by condemnation, is taken and held subject to this provision, that it be necessary to the purposes of the corporation.
The taking of land by condemnation is an act of sovereignty, and is, and can be justified only on the ground of a public need of it. Because of that fact, it is well settled law that when land is taken for a right of way by condemnation, the title reverts when the land is no longer used for that purpose. That is to say, the use of the land for a public purpose is the basis of the right to hold it. This is true, also, of lands deeded, in terms, for a right of way. If the title reverts when a right of way is abandoned, whether conveyed in terms, as such, or condemned; it follows that the reason of the reversion is that the land was sold, or taken for a right of way. When, then, it ap*430pears that land, was in fact sold by the vendor and purchased by the vendee for a right of way, though a title in fee be technically conveyed, why should not the reason of the rule apply, and a reversion result?
The only answer attempted is that a fee was conveyed. without stating that the intent was to convey only a right of way. This limits a consideration of the intent of the parties to the language of the granting clause, ignoring the fact that the intent of the parties to a deed, as well as to other instruments, should be ascertained from the language used, read in the light of the circumstances under which it was made.
In Lockwood v. R. R. Co., 103 Fed. 243, 43 C. C. A. 202, this rule was applied to a contract which conveyed land to a railroad company, and which contained a covenant thereafter to execute a deed conveying the land in fee. It was held that a right of way only was intended,'and conveyed. The rule that a deed should be construed according to the ascertained intent of the parties is approved by this court in Millage v. Churchill, 69 Colo. 457, 195 Pac. 107. In the deed here in question the land is three times mentioned as a right of way, and the tract is described as “being fifty feet on each side of the center line of said route over, across and through the following described tract of land.” In refusing to give effect to the rule that a right of way reverts when abandoned, the court makes the granting clause conclusive on the question of intent, though the land was, in fact, as the opinion states, taken as a right of way.
In other words, because defendant in error, when the right of way agent, after an extended negotiation for a right of way, including threats of immediate condemnation proceedings, presented a deed for signature, did not know that it was necessary to have the words “for a right of way” inserted after the words of grant, he parted with an absolute title in fee. That the land was elsewhere in' the deed mentioned as a right of way is not deemed sufficient. *431Thus it appears that a conveyance, manifestly for a right of way, conveys only that interest in case the words appear in one place in the deed, but have no effect to limit the interest conveyed if' they appear in another place, though they evidence the same intent. This is to create and apply a rule which is on a par with the “rule in Shelley’s case” the usual application of which defeats the intent of the parties to a conveyance.
If the words “in fee” are of such controlling import, how can it be held that land acquired by condemnation reverts, in case of abandonment, in face of the fact that the statute, Section 2420 R. S. 1908, provides, that on compliance with its terms, the petitioner in condemnation proceedings is “seized in fee” of the lands taken? Yet it has been so held in this state. Lithgow v. Pearson, 25 Colo. App. 70, 135 Pac. 759.
In Smith Canal Co. v. C. I. & S. Co., 34 Colo. 485, 82 Pac. 940, 3 L. R. A. (N. S.) 1148, where this statute was under consideration, it is pointed out that the word “fee” may be treated merely as referring to an estate or interest in the nature of an easement or mere right of way. In the opinion reference is made to Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426, in which in a similar statute the words “fee simple” were held not to be used in a technical sense, and that only a right of way was given. It was therefore held that the ditch company obtained only a right of way, and not an absolute title. May we not then properly hold that, when the word “fee” is used in a conveyance for a right of way, it was used in that qualified sense? In reason, it must be that the purpose for which the land is taken, either by condemnation, or as a result of a conveyance to avoid condemnation, is controlling on the question of the interest acquired.
The majority opinion discusses at some length the authority of the railroad company to take a title in fee, a matter not seriously questioned, but fails to discuss the theory upon which the case was tried and determined be*432low, and upon which counsel depend to sustain the judgment here. That theory is that a conveyance, in fact for a right of way, though in terms for a fee, conveys only a right of way. This position of counsel is supported by the well reasoned case of Abercrombie v. Simmons, 71 Kans. 538, 81 Pac. 208, 1 L. R. A. (N. S.) 806, 114 Am. St. Rep. 509, 6 Ann. Cas. 239. The court there lays down what appears to me to be the just and reasonable rule and said:
“Now, as we have seen, the deed and those things to which we may look in its interpretation plainly show that the strip was sold on the one part, and purchased on the other, as and for a right of way for a railroad. This use, being within the contemplation of the parties, is to be considered as an element in the contract, and limits the interest that the railroad acquired. It took the strip for a specific purpose, and could hold it so long as it was devoted to that purpose. * * * Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned.”
The same rule is recognized in Minnesota in Fairchild v. City of St. Paul, 46 Minn. 540, 49 N. W. 325. The court had under consideration a statute which provided that the title to land condemned in St. Paul for street purposes should “be vested absolutely in the City of St. Paul, in fee simple.” The court held that this must be construed as giving to the city only a qualified fee:
“The fee simple for street purposes, which gives the city absolute control over the land for those purposes, but that its title is not a proprietary, but what might be termed a sovereign or prerogative, one, which it, as an agency of the state, holds in trust for the public for street purposes, and which it can neither sell nor devote to a private use.”
The general holding is that though statutes provide that in condemnation the petitioner shall be seized in fee of the land taken, nothing more than an easement passes, giving right to the land so long as it is used for the purpose for which it is taken, but when that use is abandoned, it reverts to the owner. Kellogg v. Malin, supra.
*433I can conceive of no reason why one rule should be applied to land taken by condemnation, and another to land deeded as a result of negotiations for a right of way under threats of a compulsory taking. If the statute has not the force to vest a petitioner in condemnation with an absolute fee, why should the deed of the landowner, made to avoid a proceeding in condemnation, have a greater effect?
Three cases are cited in support of the courts holding, but one of which is in point. The Massachusetts case involved a question as to the proper construction of the words used in describing the land conveyed, and the reference to the point here under consideration was obviously a dictum. It had no connection with the question at issue.
The Illinois case holds with the plaintiff in error without discussion of cases to the contrary, citing four cases in support of its position, only one of which (the Vermont case) does in fact support it.
The reasoning of neither the Illinois case nor the Vermont case is satisfactory; the conclusions in each -being based apparently upon the theory that words of grant are conclusive. Such a rule is in direct conflict with the holding in Johnson v. Barden, 86 Vt. 19, 83 Atl. 721, Ann. Cas. 1915A, 1243, approved by this court in Millage v. Churchill, supra. That position has been sufficiently discussed herein.
The Nebraska case cited, Carr v. Miller, does not support the court’s position. In that case a land company owning seventeen hundred acres adjoining the City of Omaha, by contract induced The Bridge and Terminal Company to construct a belt line around its land so that sidetracks might be run in to accommodate industrial concerns to be located on the tract. The conveyance was made not to avoid condemnation, but to carry out a purpose of the land company. It was contended that the words of the deed conveying the land “for terminal and railway purposes and uses” showed that the Terminal Company was to have a right of way only. The court held that the words did not show an intent to convey only a right of way.
*434It being conceded in this case that it was the intent to convey a right of way, it is manifest that the Nebraska case is not in point.
For the reasons above stated, I am clearly of the opinion that the judgment of the trial court was right and should be affirmed.