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A deed which in the granting clause grants, sells and conveys a tract or strip of land conveys the title in fee, even though in a subsequent clause or paragraph of the deed the land conveyed is referred to as a right of way. When the deed conveys the right of way it shall not be construed to convey the fee simple title. The clear implication, is that when the deed conveys the land and not merely the right of way it may and should be construed as conveying the see simple title.
Respondent landowners William F. Neale and E. C. Street sued petitioners Texas Electric Railway Company and others for the title and possession of a tract or strip of land containing 6.06 acres, which was acquired by the Southern Traction Company by conveyance and was used by that company and its successors, respondent railway company, as part of the right of way of an electric interurban railway operated by the two companies until the operation was discontinued and abandoned. The trial court and the appellate court ruled in favor of the respondent landowners and held that the deed to the railroad company conveyed only an easement and not the estate in fee to the land at issue. Petitioner sought review of the judgment of the court of appeals which ruled in favor of respondent landowners.
Did the lower courts err in holding that the deed conveyed only an easement and not the estate in fee?
The court reversed the judgments of the trial and appellate court and rendered judgment in favor of petitioner railroad company. The court held that the deed which in the granting clause granted, sold, and conveyed the tract of land conveyed the title in fee, even though in a subsequent clause of the deed the land conveyed was referred to as a right of way. The court found that the provisions in the deed showed that the property was intended to be used as a right of way. The court further held that the words "establish a stop on the right of way hereinabove conveyed" in the deed meant nothing more than that a stop was to be established on the parcel of land that had been conveyed by the deed for right of way purposes and the words did not undertake to define or limit the estate or title that had been granted.