NO. 89-19
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
LILLIAN H. YABERRY; WILLIAM K.
McBURNEY and ETHEL E. McBURNEY,
husband and wife; and JOHN W.
McBURNEY and SALLY D . McBURNEY,
husband and wife,
Plaintiffs and Appellants,
-vs-
GARY W. GUETHS and EVA E. GUETHS,
husband and wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Tenth Judicial ~istrict,
In and for the County of Fergus,
The Honorable Peter Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. H. Morrow; Morrow, Sedivy & Bennett, P.C., Bozeman,
Montana
For Respondent:
Torger Oaas, ~ewistown,Montana
,-ShermanV. Lohn, (of counsel), Eissoula, Montana
-*-
submitted on Briefs: June 8, 1989
~ecided: July 25, 1989
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Appellants sought a District Court order declaring void
deeds by which respondents the Gueths claimed title to por-
tions of certain abandoned railway lines. The District Court
for the Tenth Judicial District, Fergus County, ruled that
the Gueths held fee simple title to the property. We affirm.
The issues are:
1. Did the trial court err in finding that the railroad
held fee title to the land, and not. only a right-of-way
easement?
2. Did the trial court err in not finding that the
Gueths were collaterally estopped from claiming fee title to
the land in question?
3. Did the trial court err in failing to grant appel-
lants' motions to amend findings, for new trial, and to alter
the judgment?
The appellants own land in Fergus County, Montana,
across which a railroad line has existed since about the year
1912. In 1978, the Chicago, Milwaukee, St. Paul and Pacific
Railroad Company (railroad company) filed for bankruptcy and
was authorized to abandon all railroad lines west of Miles
City, Montana, including this line. The railroad tracks,
ties, and other improvements were removed. The Gueths,
through the bankruptcy court, obtained a deed to the
abandoned property from the railroad company.
Appellants filed a complaint in District Court, alleging
that the railroad company held the lands in question as an
easement for railroad purposes and that the abandonment of
the lands for railroad purposes resulted in a reversion to
them, the adjoining landowners. The Gueths' position was
that the railroad held a fee simple estate in the land and
that the use or non-use of the property for railroad purposes
had no bearing on the railroad's interest in the land.
Basing its decision on the language of the deeds by which the
railroad claimed title, the court ruled in favor of the
Gueths.
I.
Did the trial court err in finding that the railroad
held fee title to the land, and not only a right-of-way
easement?
The appellants cite Chicago, M. & St. P. Ry. Co. v.
Portland (1918), 54 Mont. 497, 172 P. 541, as authority. In
that case, this Court held that a strip of land owned by the
railroad company in Lewistown was a mere easement.
Appellants argue that the railroad company should not be
allowed to have claimed in that case that its interest was a
mere easement and to claim in this case that its interest is
a title in fee. However, the appellants have not shown that
the instrument of conveyance in Chicago was any of the three
deeds involved here. Also, Chicago involved a portion of a
railroad line which crossed a public street, not
privately-owned land. That aspect was one reason given for
the result reached by the Court.
The appellants also cite a number of cases from other
states which have held that once a railroad abandons a strip
of land for railroad purposes, title to the strip reverts to
the owners of the adjacent land. But there is a split of
authority on this question, depending in many cases upon the
particular language of the conveyance involved. As discussed
at Annot., 6 A.L.R.3d. 973, 976-77 (1966):
Most cases dealing with conveyances
to railroad companies fall into two
general categories: (1) Those that grant
"land" and those that grant a "right."
I n t h e f o r m e r g r o u p a r e t h o s e which
c o n t a i n l a n g u a g e by which t h e g r a n t o r
g r a n t s and c o n v e y s a s t r i p , p i e c e , p a r -
c e l , o r b e l t of land. In the latter
g r o u p a r e t h o s e i n which t h e l a n g u a g e
p u r p o r t s t o convey a r i g h t o f way, o r
other r i g h t o r privilege with respect t o
using t h e property. ...
The c o u r t s have found l i t t l e d i f f i -
c u l t y w i t h t h o s e c o n v e y a n c e s whereby a
g r a n t o r , by a p p r o p r i a t e words o f convey-
a n c e , u n q u a l i f i e d l y conveyed a s t r i p o f
l a n d t o a r a i l r o a d i n t h e u s u a l form o f
c o n v e y a n c e , n o r have t h e y g e n e r a l l y found
d i f f i c u l t y w i t h t h o s e where a p r o p e r l y
d e s c r i b e d r i g h t o f way o r e a s e m e n t o v e r a
d e s i g n a t e d t r a c t o f l a n d was g r a n t e d i n
the instrument of conveyance. .. .
There appears t o b e c o n s i d e r a b l e
c o n f l i c t i n t h e cases a s t o t h e construc-
t i o n o f d e e d s p u r p o r t i n g t o convey l a n d ,
where t h e r e i s a l s o a r e f e r e n c e t o a
r i g h t o f way. Some o f t h e c o n f l i c t may
a r i s e by v i r t u e o f t h e t w o f o l d meaning o f
t h e t e r m " r i g h t o f way," a s r e f e r r i n g
b o t h t o l a n d and t o a r i g h t o f p a s s a g e .
I n some c a s e s , p a r t i c u l a r l y where t h e
r e f e r e n c e t o r i g h t o f way i s i n t h e
g r a n t i n g c l a u s e , o r where t h e r e a r e o t h e r
r e l e v a n t f a c t o r s , t h e c o u r t s have held
t h a t a n e a s e m e n t o n l y was i n t e n d e d . In
o t h e r c a s e s , t h e d e e d i s h e l d t o convey a
f e e simple e s t a t e i n t h e land, t h e c o u r t s
g e n e r a l l y b a s i n g t h e i r h o l d i n g s on t h e
ground t h a t t h e g r a n t i n g c l a u s e g o v e r n s
o t h e r c l a u s e s i n t h e deed, that the
r e f e r e n c e t o r i g h t o f way d i d n o t make
t h e d e e d ambiguous (therefore barring
e x t r i n s i c e v i d e n c e from c o n s i d e r a t i o n ) ,
o r t h a t t h e r e f e r e n c e t o r i g h t o f way was
t o l a n d and d i d n o t r e l a t e t o t h e q u a l i t y
o f t h e e s t a t e conveyed.
Other cases purporting t o g r a n t
land c o n t a i n language r e l a t i n g t o t h e
p u r p o s e f o r which t h e l a n d conveyed i s t o
be used. Some c a s e s h o l d t h a t s u c h
language is merely descriptive of the use
to which the land is to be put and has no
effect to limit or restrict the estate
conveyed; in others, the position is
taken that such language indicates an
intention to convey an easement only and
not a fee. Many cases appear to turn
upon the nature of the reference to
purpose, the location of the reference in
the deed, and the presence of other
factors and provisions bearing on the
question of intent.
The appellants point out that the subject deeds refer,
in their legal descriptions of the strip of property, to the
strip as one hundred feet wide and "50 feet of such width on
each side of the centerline of the railway." The legal
descriptions also refer to the strip as "the above described
Right of Way." However, there are several aspects of the
deeds which lead us to conclude that they conveyed land, not
easements. The granting and habendum clauses refer to land,
not a right. The trial court quoted the granting clause of
one of the deeds, which read:
.
. . has granted bargained, sold, and
conveyed, and by these presents does
grant, bargain, sell, and convey unto the
said party of the second part, its suc-
cessors and assigns forever, all that
certain strip, belt, or piece of land
lying and being in Fergus County,
Montana, particularly described as fol-
lows, to-wit:
The trial court stated, and the record confirms, that the
other two deeds contain granting clauses identical to the one
quoted in all material respects. The court noted that none
of the granting clauses contain language limiting the title
conveyed to anything other than an estate in fee. The trial
court concluded that the deeds were general form warranty
deeds of the type used in the unrestricted transfer of real
property in Montana.
The court also quoted the habendum clause of one of the
three deeds, which it stated is identical in all material
respects to the habendum clauses of the other two deeds. The
record supports that statement. The quoted clause was:
Together with all and singular tenements,
hereditaments and appurtenances, there-
unto belonging or in anywise appertain-
ing. TO HAVE AND TO HOLD, all and
singular, the said premises, together
with the appurtenances unto said second
party, and to its successors and assigns
FOREVER.
The court stated that under Montana law, use of language like
that used in the habendum clause is evidence of an intent to
convey a fee simple estate.
The language relating to use as a railroad right of way
is merely descriptive as to use and not as a limitation on
the grant. We conclude that the references upon which
appellants rely do not overcome the clear intent of the
granting clauses and the habendum clauses that the railroad
receive title in fee. We hold that the District Court did
not err in concluding that the railroad company held fee
title to the land.
Did the trial court err in not finding that the Gueths
were collaterally estopped from claiming fee title to the
land in question?
Appellants base this argument on the Chicago case. They
assert that Chicago represents a final judgment on the issue
in dispute here, and that the Gueths are in privity with the
railway company involved in that case. But as discussed
above under Issue I, the Chicago case has not been shown to
have involved the same deeds as those involved here and,
unlike this case, it involved a portion of a railroad line
crossing a public street. We hold that the trial court did
not err in holding the Gueths were not collaterally estopped
from claiming fee title to the property.
Did the trial court err in failing to grant appellants'
motions to amend findings, for new trial, and to alter the
judgment?
Following the District Court's entry of judgment in this
case, appellants filed and served their combined motions to
amend findings, for new trial, and to alter the judgment.
The Gueths did not file a response to the motions within the
ten days allowed under Rule 59(c), M.R.Civ.P. Appellants
moved the court that the motions be deemed admitted and
well-taken as allowed under Rule 2(b) of the Uniform District
Court Rules. In response to a notice of hearing on the
motions, the Gueths filed a brief and it was agreed that the
matter would be submitted to the court without oral argument.
The court then denied the motions. Appellants argue that
this denial was error under the rules.
Rule 2(b), Uniform District Court Rules, provides:
Failure to File Briefs. Failure to file
Briefs may subject the motion to summary
ruling. Failure to file a Brief within
five days by the moving party shall be
deemed an admission that khe motion is
without merit. Failure to file an Answer
Brief by the adverse party within ten
days shall be deemed an admission that
the motion is well taken. Reply Briefs
by movant are optional and failure to
file will not subject a motion to summary
ruling.
While the Gueths' failure to file a brief in the time
allowed them is, under Rule 2(b), to be viewed as an
admission by them that the motions are well-taken, the rule
does not require the District Court to grant the unanswered
motions. The rule states that failure to file a brief "may"
subject such a motion to summary ruling. We hold that the
rule does not remove the discretion of the District Court to
grant or deny unanswered motions as it sees fit.
Affirmed.
We Concur:
f Chief Justice
1
~@I&L%&/L,&
Justices