-Dissenting Opinion.
Jackson, J.— This cause is here on transfer on order of the Appellate Court on the theory that appeals in condemnation actions are in the Supreme rather than the Appellate Court.
This is an action brought by the appellee, Evansville School Corporation, against the appellant, Ross, Inc., and against the other appellees herein for the condemnation of real estate for school purposes. The ownership of the real estate to be condemned is in dispute between the appellant and certain of the appellees herein.
The parties are in agreement that the only issue in this case is, did the deeds through which appellant claims title convey the fee simple title or an easement only?
The appellant filed its answer and objection to the complaint of appellee, Evansville School Corporation, praying for an order determining that title to the real estate condemned herein was held by the appellant; the appellees, Nellie Rex Legler, et al. and the appellees, Annadale Pollock Fickas, et al., filed separate replies to the appellant’s answer and objections and said appellees also filed separate petitions and cross-complaints against the appellant praying for an order determining that title to the real estate condemned herein was held by said appellees. The condemnation order was entered by the court and appraisers were appointed, the appellant filed exceptions to the appraisers report and requested a trial on the issue of the damages. A trial and hearing was held on *664the question of title to the condemned real estate, and the court held that the appellees, Nellie Rex Legler, et al., and the appellees, Annadale Pollock Fickas, et ah, were the owners in fee simple of said real estate and that the appellant had no title in said property.
The real estate in question is described as follows:
“Part of the South One-half of the North-west Quarter and a Part of the North one-half of the Southwest Quarter of Section Thirty-five (35), Township Six (6) South, Range Ten (10) West, in Vanderburgh County, Indiana, more particularly described as follows:
“Beginning at a point on the South line of the Southwest quarter of the Northwest quarter of said Section which is North Eighty-nine (89) degrees and Fifty (50) minutes East at a distance of Four hundred Seventy-five (475) feet from the Southwest corner of the Southwest quarter of the Northwest quarter of said Section, thence North and parallel with the West line of the Southwest quarter of the Northwest quarter of said Section for a distance of Thirty-seven and eighteen hundredths (37.18) feet to the point on the North line of the former Right-of-Way of the Evansville and Ohio Valley Railway Company thence North Eighty-nine (89) degrees and Forty-nine (49) minutes East along said North right-of-way line for a distance of Eight hundred seventy-six and fifty-seven hundredths (876.57) feet to a point Twenty-five (25) feet east of the East line of the Southwest quarter of the Northwest quarter of said Section thence South Zero (0) degrees and Eleven (11) minutes West for a distance of Fifty (50) feet to a point on the South line of said former right of way, thence South Eighty-nine (89) degrees and Forty-nine (49) minutes West for a distance of Eight hundred seventy-six and forty-one hundredths (876.41) feet thence North for a distance of Twelve and eighty-two hundredths (12.82) feet to the place of beginning. Subject to any legal highways, easements or rights of way.”
Title to the real estate in controversy passed to *665appellant’s predecessor in title by deeds marked Exhibits A, B, and C. The issue is therefore determined by the construction to be placed upon said instruments.
Exhibit A appearing at page 223 of the transcript is a warranty deed conveying certain real estate therein described to Evansville Terminal Railway predecessor in title to appellant herein. A careful examination of said deed discloses only a metes and bounds description of the real estate therein described, together with a final sentence in the body of the deed reading “[s]aid strip of right of way being located in the southwest quarter of section 35, township 6 south range 10 west and containing .76 acres.” Said deed, in my opinion, conveys a fee simple rather than an easement.
Exhibit B, appearing at page 225 of the transcript, is a quit claim deed conveying certain real estate described by metes and bounds. The final paragraph in the body of the deed reads as follows: “[s]aid strip of right of way being located in the northwest quarter of section 35 township 6 south range 10 west containing 1.14 acres more or less.” Said instrument, in my opinion, conveys a fee not an easement.
Exhibit C appears at page 227 of the transcript and is a quit claim deed conveying certain real estate therein described by metes and bounds. Said deed contains in the body thereof a statement reading as follows : “Said strip of right of way being located in the northwest quarter of section 35 township 6 south range 10 west containing 1.14 acres more or less.” Said deed conveys an interest in the real estate rather than an easement.
The deeds involved provided in the granting clause for a conveyance of “the following described real es*666tate.” The granting clause clearly imports a conveyance of land. Quite often deeds contain a specific reverter clause or language stating that the grant shall continue for so long as property is used as a railroad right-of-way or for some other specific purpose, thus imposing a condition subsequent. The deeds through which appellant claims title herein contain no such 'limitations, restrictions, or conditions subsequent.
The statement in the majority opinion designated paragraph 3 thereof, in my opinion, is an assumption that does not in fact exist. The prohibition as to the acquisition of a fee simple title to railroad right-of-way is limited only to the acquisition of right-of-way by the exercise of the right of eminent domain under the 1905 Act.
The cause should be reversed and remanded to the trial court with instructions to enter its findings and judgment that appellant is the owner in fee simple of the real estate appropriated in this proceedings, and that a hearing be had for the purpose of determining the damages to appellant’s real estate.
Note. — Reported in 199 N. E. 2d 346.