This is a suit in ejectment brought by the appellees to recover two small pieces of land. A jury trial resulted in a verdict and judgment awarding the possession of both tracts to the plaintiffs.
Only a question of law was presented below as to the first tract, which is the north half of a segment of a railroad right-of-way that was abandoned by the railroad company in 1936. At that time J. H. Jacobs owned land on both sides of the right-of-way. The land on the north side was later sold to the appellees, and that on the south was later sold to the appellants. Both deeds contain metes and bounds descriptions that extend to the edge of the right-of-way and thence along the right-of-way for given distances. Thus, according to the deeds, the appellees ’ south boundary is the north side of the right-of-way, and the appellants ’ north boundary is the south side of the right-of-way. The appellants, in addition to their original deed, obtained from Jacobs’ heirs a quitclaim deed to the disputed section of the right-of-way.
The appellees insist that the legal effect of their deed is to convey to the center line of the abandoned right-of-way, and several cases from other jurisdictions are cited to support this contention. In practical effect there is much to be said in favor of this view, since the opposite rule often leaves in the grantor the ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way, street, alley, e.tc.
The appellants rely chiefly upon Fordyce v. Hampton, 179 Ark. 705, 17 S. W. 2d 869, and with some reluctance we concede that case to be controlling. There we held that although a conveyance of land bounded by an alley is usually presumed to carry title to the center line, the presumption does not arise when the alley has been vacated or abandoned. In the opinion we recognized the fact that two lines of authority exist and chose the rule that the grantee takes to the center of an abandoned easement only when the grantor explicitly expresses that intention. Those of us who are joining in this opinion do not think the doctrine of the Fordyce case to he a desirable one, since a grantor does not ordinarily intend to retain title to an abandoned right-of-way that is of little practical value. But the Fordyce case laid down a rule of property. No doubt sales have been made and titles have been approved in reliance upon that decision. For us now to overrule it would destroy property rights that were acquired in the belief that this court would abide by its choice between lines of authority that have about equal support in the cases. If the rule is to be changed it should be done by legislation that operates prospectively rather than by judicial decision that is retroactive. Since we adhere to the rule announced in the Fordyce case the trial court erred in submitting to the jury the question of the ownership of the first tract. The appellants acquired title by their deed from the Jacobs heirs. As to this tract-the judgment is reversed and the cause dismissed.
The second tract is half an acre lying between the railroad right-of-way and a national highway. The appellees assert title by adverse possession, and we think the testimony presented an issue for the jury. Mrs. Blanscet, one of the appellees, testified that she and her husband had planted alfalfa on this tract in 1939 and had harvested hay from the land in every year from 1939 through 1947. There is convincing evidence to the contrary, but it cannot be said that the record is without evidence to show that the appellees have acquired title by adverse possession. On this phase of the case the judgment is affirmed.
McFabdin, J., concurs; Holt, J., dissents.