PRESENT: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
SHIRLEY ANN BAILEY
OPINION BY
v. Record No. 090989 JUSTICE S. BERNARD GOODWYN
April 15, 2010
TOWN OF SALTVILLE
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
C. Randall Lowe, Judge
In this appeal we consider whether a 1909 agreement and
deed concerning a railroad right of way conveyed an easement or
a fee simple interest to the railway company.
Background
In 1909, James L. White and Kate R. White (the Whites)
recorded an agreement and a deed in the land records of
Washington County concerning the conveyance of a right of way
to Norfolk & Western Railway Company (Norfolk & Western). The
agreement, signed by the Whites and the president of Norfolk &
Western, stated that its purpose was to amicably settle a
dispute concerning the width of a railroad right of way, dating
from 1856, for an existing railroad track, and that the Whites
were to convey by deed, “the right-of-way eighty (80) feet wide
through the farm known as the Greenfield farm, with such
1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
additional width as may be necessary by reason of deep cuts and
fills . . . .”
The agreement then listed the consideration for the
agreement, which consisted of $250 and a number of other
benefits, including a “siding or spur track near the [Whites’]
residence . . . on Greenfield farm,” an increase in the size of
the culvert under the railroad to keep the area from flooding
in the event of heavy rainfall, grading of land near the right
of way to enable cattle to continue to cross the area to reach
water and a number of other improvements to the surrounding
area.
In the deed, executed on the same day as the agreement,
the granting clause of the deed reads thus: “the parties of
the first part [the Whites] do grant and convey unto the party
of the second part [Norfolk & Western] all that certain strip
or parcel of land situate in the County of Washington and State
of Virginia, bounded and described as follows.” The deed
describes the land subject to the conveyance as beginning at a
point on the centerline of the then existing track, where the
Whites’ land bordered on that of two other owners, as measured
from a railroad mile marker. The description states, “thence a
strip of land 80 feet in width 40 feet on the north and 40 feet
on the south side” of the centerline “together with such
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additional widths as are necessary for a single track railroad
at deep cuts and fills.”
The description of the strip of land travels along the
existing railroad line giving distances from railroad mile
markers and reference points where the Whites’ land adjoins the
land of others. The conveyed strip passes through the
Greenfield farm, part of which is now the property of Shirley
Ann Bailey (Bailey). The deed recites that the conveyance
totals 20.59 acres, more or less. The deed also sets forth the
survey calls giving the bearings and distances for the
centerline of the track, and concludes with a covenant that the
Whites “will warrant generally the land hereby conveyed.”
Norfolk & Western abandoned their railroad line in 1993
and, in 1994, donated the railroad corridor to the Town of
Saltville (Saltville) by way of a quitclaim deed, styled as a
“Deed of Donation.” Bailey acquired title to the relevant
portion of the Greenfield farm in 2002 from her predecessors in
title.
In 2004, Saltville began the process of removing the
railroad track materials from the railroad corridor conveyed by
the 1909 deed. Bailey posted “No Trespassing” signs and denied
Saltville the right to enter the railroad corridor.
Saltville filed an action to quiet title and for ejectment
in the Circuit Court of Washington County. Bailey filed an
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answer denying that Saltville had valid title to the land that
formed the railroad corridor, a motion to dismiss and a
counterclaim. Both parties filed motions for summary judgment.
The parties agreed that each side traces its title back to
the Whites and that the ownership claims of both parties
depended upon the nature of the interest conveyed by the Whites
to Norfolk & Western in 1909. Saltville claimed that Norfolk &
Western acquired full fee simple ownership of the railroad
corridor, which it subsequently conveyed to Saltville. Bailey
contended that Norfolk & Western acquired easement rights to
the corridor, and that those rights were extinguished by
Norfolk & Western’s abandonment of the railroad prior to its
conveyance of its interest in the railroad corridor to
Saltville.
After hearing arguments, the circuit court found in
Saltville’s favor. It held that “both the agreement and deed
should be considered as part of one transaction because the
Court does not see a conflict between the documents.” The
circuit court noted that the agreement used the term “right of
way,” but it contemplated that “the deed prepared on the same
day as the agreement would be entered to consummate the
agreement.” The circuit court held that the deed, by its
language, conveyed a fee simple interest in the subject
property to Norfolk & Western. Therefore, the circuit court
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granted Saltville’s motion for summary judgment and denied
Bailey’s motion for summary judgment. Bailey appeals.
Analysis
Bailey claims that the circuit court erred in holding that
the 1909 deed conveyed a fee simple interest to Norfolk &
Western. Bailey argues that the circuit court correctly held
that the agreement and the deed should be considered as part of
the same transaction, and she notes that the agreement filed
with the deed indicates that a right of way was being conveyed.
Bailey argues that in 1909, the ordinary and accepted meaning
of “right of way” denoted a right to pass over the land of
another person. Thus, according to Bailey, reading the
agreement along with the deed, and construing the deed so as to
give effect to the intent of the parties, required the circuit
court to rule that the 1909 deed conveyed an easement rather
than a fee simple interest.
In support of her position, Bailey points out that the
deed does not specifically state the interest that it is
conveying, and she claims that the deed does not contain a
metes and bounds description, because it describes a line and
specifies a width that is variable on either side “as . . .
necessary for a single track railroad at deep cuts and fills.”
This, according to Bailey, indicates that the Whites intended
to convey the land for a particular purpose, that is, for a
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single track railroad, which is consistent with an easement
being the interest in land that was transferred by the 1909
deed. Bailey also contends that Norfolk & Western’s rights to
the easement were extinguished by its abandonment of the
railroad prior to Norfolk & Western’s conveyance of the
property to Saltville; thus, Norfolk & Western’s quitclaim deed
did not transfer to Saltville any interest in the railroad
corridor.
Saltville claims that Norfolk & Western acquired a full
fee simple ownership of the railroad corridor in 1909 and that
Norfolk & Western subsequently conveyed that fee simple
interest to Saltville. Saltville states that the use of the
term “right of way” in the agreement is not at odds with the
deed, which conveyed a fee simple interest because, by 1909,
Virginia law recognized that a railroad company could own a fee
simple title to a corridor of land containing the railroad’s
right of way. Saltville claims that the 1909 agreement between
the Whites and Norfolk & Western specifically said that the
right of way through the farm would be conveyed by deed. The
deed then gives a precise description of the land being
conveyed, including the metes and bounds of the centerline.
Saltville claims that the plain language of the deed indicates
that the deed conveyed a fee simple interest in land.
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There is no dispute that the 1909 deed and agreement are
valid, nor is there any dispute regarding what land was
conveyed by the 1909 deed. The question in dispute concerns
the nature of the interest in land conveyed by the deed. Such
a determination presents a question of law which is subject to
de novo review. Ott v. L&J Holdings, LLC, 275 Va. 182, 187,
654 S.E.2d 902, 904-05 (2008).
Deeds are to be construed by giving the words used their
natural and ordinary meaning. E.g., Davis v. Henning, 250 Va.
271, 274, 462 S.E.2d 106, 108 (1995); Hale v. Davis, 170 Va.
68, 71, 195 S.E. 523, 524 (1938). The language in the deed is
taken most strongly against the grantor and most favorably to
the grantee. Hite v. Town of Luray, 175 Va. 218, 224, 8 S.E.2d
369, 371 (1940). In addition, it is not permissible to
interpret that which has no need of interpretation. Conner v.
Hendrix, 194 Va. 17, 25, 72 S.E.2d 259, 265 (1952).
This Court has also stated that “[w]here two papers are
executed at the same time or contemporaneously between the same
parties, in reference to the same subject matter, they must be
regarded as parts of one transaction, and receive the same
construction as if their several provisions were in one and the
same instrument.” Oliver Refining Co. v. Portsmouth Cotton Oil
Refining Corp., 109 Va. 513, 520, 64 S.E. 56, 59 (1909) (citing
Anderson v. Harvey, 51 Va. (10 Gratt.) 386, 396 (1853) (two
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deeds executed the same day and made by the same parties
concerning the same property “must be regarded as parts of one
transaction, and as constituting in law one entire deed”)).
The Whites and Norfolk & Western recorded the deed and the
agreement on the same day. Both documents refer to the land
transaction. We will assume without deciding that the circuit
court rightfully considered both of the documents together.
The language in the agreement that the deed is to convey a
“right of way” is not at odds with the plain language of the
deed. Assuming, as asserted by Bailey, that a “right of way”
was understood in 1909 to be a right or privilege to pass over
the land of another person, the granting of such a right could
be accomplished by the granting of a fee simple interest, as
well as by the granting of an easement.
In determining whether the deed conveys an easement or a
fee simple, this Court’s rules of deed construction dictate
that this Court must “ascertain the intention of the parties,
gathered from the language used, and the general purpose and
scope of the instrument in the light of surrounding
circumstances. When such intention appears by giving the words
their natural and ordinary meaning, technical rules of
construction will not be invoked.” Hale, 170 Va. at 71, 195
S.E. at 524.
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The deed from the Whites to Norfolk & Western described
the conveyance as “all that certain strip or parcel of land.”
The description given in the deed is a “strip of land” eighty
feet in width, being forty feet on either side of the
centerline of the railroad track. At the conclusion of the
deed, the Whites covenant that they will warrant generally “the
land hereby conveyed.” Giving the words used in the deed their
natural and ordinary meaning, we conclude that the Whites
transferred complete ownership to Norfolk & Western of the
strip of land, which is the subject of the deed.
In the 1904 edition of the Code of Virginia, applicable in
1909, § 2420 provided:
Where any real estate is conveyed, devised or granted
to any person without any words of limitation, such
devise, conveyance or grant shall be construed to
pass the fee simple or other whole estate or interest
which the testator or grantor had power to dispose of
in such real estate, unless a contrary intention
shall appear by the will, conveyance or grant. 2
Nowhere in the deed is the interest being granted to Norfolk &
Western described as anything other than a complete conveyance
2
The Code has contained provisions in accord with such
language since at least 1873. Markells v. Markells, 73 Va. (32
Gratt.) 544, 557 (1879) (applying the 1873 statute); see also
current Code § 55-11 (providing that “[w]hen any real estate is
conveyed . . . or granted to any person without any words of
limitation such . . . conveyance or grant shall be construed to
pass the fee simple or other whole estate or interest which the
. . . grantor has power to dispose of in such real estate,
unless a contrary intention shall appear by the . . .
conveyance or grant”).
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of land. There are no words of limitation anywhere in the deed
to modify the words of grant. There is no reversionary clause
or condition subsequent. No language restricts the use of the
property or establishes a termination date for Norfolk &
Western’s property rights. Nothing in the deed states that the
grant is restricted to an easement that would terminate in the
event that the railroad ceases operation. Additionally, the
general warranty contained in the deed, as well as the
statement concerning the total acreage being conveyed, indicate
that a fee simple interest was being transferred.
Therefore, we hold that the circuit court did not err in
finding that a fee simple interest was transferred to Norfolk &
Western Railway Company by the 1909 deed and that the Town of
Saltville is presently the fee simple owner of that strip of
land conveyed by the 1909 deed. Accordingly, the judgment of
the circuit court will be affirmed.
Affirmed.
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