# Tazian v. Cline > Indiana Court of Appeals · November 13, 1996 · 673 N.E.2d 485 URL: https://www.frixlaw.com/law-library/cases/9726074 ## Case - **Full name:** In Re Zohrab K. TAZIAN and Naomi Tazian, Appellants-Defendants, and James A. Long, II and Mary Ann Long, Robert S. Warner and Malea A. Ramer, and Eleanor L. Doehla, Defendants (Not Participating in This Appeal), v. Alice CLINE, Appellee-Plaintiff - **Court:** Indiana Court of Appeals - **Decided:** November 13, 1996 - **Citations:** 673 N.E.2d 485; 1996 Ind. App. LEXIS 1556; 1996 WL 656695 - **Precedential status:** Published - **Opinion:** Dissent by Staton - **Judges:** Garrard, Rucker, Staton - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9726074 ## Opinion text STATON, Judge, dissenting. I dissent. The majority “deeline[s] to interpret the habendum clause as limiting the granting clause in any way.” Op. at 489. Three errors lead the majority to ignore the habendum of this deed. First, the majority creates a new standard of deed construction by defining a general grant to mean an ambiguous grant. Second, the majority applies one section of the 1852 property code, without considering the rest of the code, in contravention of the intent underlying the code. Third, the majority mandates additional requirements that must be met before the intent of a grantor to create an easement will be given effect. The initial error is to confuse a general conveyance with an ambiguous conveyance. The standard our cases set out is, as the majority correctly cites, that “when the granting clause of a deed is general or indefinite respecting the estate in lands conveyed, it may be defined, qualified, and controlled by the habendum.” Claridge v. Phelps, 105 Ind.App. 344 , 11 N.E.2d 503, 504 (1937), trans. denied. Claridge explains further: The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed. Such explanations are usually found in the habendum. The office of the habendum is properly to determine what estate or interest is granted by the deed ... the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. Id. The majority, however, equates a general grant with an ambiguous grant. Op. at 489. This creates an erroneous standard, as the term “general grant” is not synonymous with the descriptor “ambiguous.” As used in Claridge , a general grant references a granting clause worded in the general “A conveys to B” form. In contrast, alternative wording, or additional qualifications and limitations, may be employed in the granting clause to convey the intended estate. The distinction between a general grant and a special or limited grant is in the form of the granting clause, not in whether the granting clause is clear or ambiguous. By changing the meaning of “general grant” to mean “ambiguous,” the majority creates a new standard of deed construction. The question is no longer whether the habendum defines or qualifies the grant in an appropriate manner, that is, in a manner not wholly inconsistent or repugnant to the granting clause and deed taken as a whole. Instead, the majority transforms our currently existent standard into an inquiry of whether the granting clause, considered in isolation, is ambiguous. The skewed analysis flowing from this new standard ignores not only the habendum, but the rest of the deed as well. The majority5s second error is to miss the import of the 1852 conveyance statute. The statute reads: Any conveyance of lands worded in substance as follows: ‘A.B. conveys and warrants to C.D.’ [here describe the premises] ‘for the sum of [here insert the consideration] the said conveyance being dated and duly signed, sealed, and acknowledged by the grantor, shall be deemed and held to be a conveyance in fee simple to the grantee, his heirs and assigns, ... Indiana Revised Statutes of 1852, ch. 23, sec. 12. The majority concludes that the granting language in this deed is similar to the language used in the statute, so the grant should be considered a grant of a fee simple absolute, despite the habendum. However, the 1852 code also states: It shall not be necessary to use the words ‘heirs and assigns of the grantee,’ to create in the grantee an estate of inheritance; and if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed. Indiana Revised Statutes of 1852 ch. 23, sec. 14. *491 The purpose of the code is to simplify conveyancing in order to more easily give effect to the intention of the parties and keep conveyances from failing due to the omission of talismanic phrases. Historically conveyancing required adherence to “verbal ritualism,” necessitating precise recitation of particular words in particular parts of the deed. CORNELIUS J. MOYNIHAN, INTRODUCTION TO the Law of Real PROPERTY 32 (1962). “Substitute words were not effective,” so a conveyance would fail due to improper use of formulaic phrases. Id. The 1852 code sought to sweep away some of this clutter of empty formalism. Thus the code eliminates the words of purchase “heirs and assigns of the grantee,” which had been necessary to convey a fully alienable and transferable estate. Id. The code also allows the grantor to convey any lesser estate by expressing such an intention in the deed without requiring the use of any special words. The majority’s use of one solitary statutory section, cut out from the rest of the code, to create an unrebutta-ble presumption as to the estate created, based on the presence of special words, is completely in opposition to the purpose of the code. The majority’s third error is reasoning that “[bjecause there is no specific use of ‘for railroad purposes’ or ‘right-of-way,’ ” a right-of-way could not have been created. Op. at 489. When examining a deed to ascertain the nature of the estate granted, the court’s determination does not hinge on the presence or absence of certain special words. Rather, it is “a cardinal rule in the construction of deeds that it be made on the entire deed, and not merely upon a particular part of it; and therefore every part of the deed ought, if possible, to take effect, and every word to operate.” Ross, Inc. v. Legler, 245 Ind. 655 , 199 N.E.2d 346, 347 (1964), reh. denied. Any “additional language as to the use or purpose to which the land is to be put” can limit the estate conveyed. Richard S. Brunt Trust v. Plantz, 458 N.E.2d 251, 253 (Ind.Ct.App.1983); See e.g. Pointer v. Lucas, 131 Ind.App. 10 , 169 N.E.2d 196, 202 (1960) (“The use of the term ‘life estate’ is not necessary to create such an estate, but the intention to create a life estate may be expressed in any equivalent and appropriate language.”) It is not necessary that the exact words “right-of-way” or “for railroad purposes” appear in this deed to create an easement. The majority’s reasoning raises new technical requirements as obstacles which must be overcome before substance will be given to the intent of the parties. Analyzing the deed at issue in this appeal under the law established in precedent, without injecting a new test of ambiguity which construes the entire deed on the basis of the granting clause alone, yields a result different from that adduced by the majority. The law established in precedent is that, “[t]he primary rule in interpreting a deed is that it is to be taken as a whole, with the grantor’s intention controlling. All the words in a deed must be given effect for the purpose of determining the grantor’s intent.” Guido v. Baldwin, 172 Ind.App. 445 , 360 N.E.2d 842, 846 (1977) (citations omitted). “The courts in seeking to determine the intention of the grantors from an examination of a deed will give the same attention and consideration to the habendum as to any other part of the deed.” Pointer, swpra, at 203. “[W]hen the granting clause of a deed is general or indefinite respecting the estate in the lands conveyed, it may be defined, qualified, and controlled by the habendum.” Claridge, supra, at 504 . The deed in question discusses the construction and operation of a railroad. The deed states that the benefits flowing from railroad operations forms part of the consideration for the conveyance. The deed grants the strip of land for laying train tracks and running the train “over, across, and through” the Evans’ land. The deed also gives the railroad the right to maintain and keep the strip of land free from overhanging tree limbs to ensure safe operation of the train. Finally, the deed states in the habendum that the railroad is to “have and hold” that grant “for the uses and purposes therein expressed.” The phrase “for the uses and purposes therein expressed” refers to the previous discussion of railroad operations within the deed, thus limiting the grant. “There is nothing in the deed to indicate that the words in the habendum limiting the estate granted in the premises were not put in *492 there deliberately and inserted there for a purpose not to be lightly considered or arbitrarily thrust aside.” Claridge, supra, at 505 . The language employed need not be the exact words “for railroad purposes.” The habendum, by reference to other language within the deed, limits the grant, so that the deed construed as a whole conveys a right-of-way easement to the railroad. This easement was extinguished when the railroad abandoned operations on the land. The land then reverted to the heirs and assigns of the Evans — the Tazians. Giving effect to the language of the deed creating a right-of-way easement is also more consonant with Indiana policy. As this court explained earlier this year in Consolidated Rail Corporation v. Lewellen, 666 N.E.2d 958, 962 (Ind.Ct.App.1996), “[t]he law has endorsed the policy that a deed to a railroad conveys a right-of-way, that is, an easement, terminable when the railroad’s use terminates, rather than a fee simple.” The court also stated that “Indiana public policy does not favor the conveyance in fee simple of land that is to be used for a railroad right-of-way.” Id. As the court explained: The rationale behind this policy has been expressed as follows: Transaction costs are minimized by undivided ownership of a parcel of land, and such ownership is facilitated by the automatic reuniting of divided land once the reason for the division has ceased. If the railroad holds title in fee simple to a multitude of skinny strips of land now usable only by the owner of the surrounding or adjacent land, then before the strips can be put to their best use there must be expensive and time-consuming negotiation between the railroad and its neighbor— that or the gradual extinction of the railroad’s interest through the operation of adverse possession. It is cleaner if the railroad’s interest simply terminates upon the abandonment of railroad service. A further consideration is that railroads have eminent domain powers, and they should not be encouraged to use those powers to take more than they need of another person’s property — more, that is, than a right-of-way. Penn Central Corporation v. U.S. Railroad Vest Corporation, 955 F.2d 1158, 1160 (7th Cir. (Ind.) 1992). Also, our supreme court has stated: Public policy does not favor the conveyance of strips of land by simple titles to railroad companies for right-of-way purposes; either by deed or condemnation. This policy is based upon the fact that the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they are severed, is obviously not necessary to the purpose for which such conveyances are made after abandonment of the intended uses as expressed in the conveyance, and that thereafter such sev-' erance generally operates adversely to the normal and best use of the property involved. Therefore, where there is ambiguity as to the character of the interest or title conveyed such ambiguity will generally be construed in favor of the original grantors, their heirs or assigns. Brown, 510 N.E.2d at 644 (citing Ross, Inc., 245 Ind. at 659 , 199 N.E.2d at 347-348 ). Lewellen, supra, at 962 . In this case the deed conveyed to the railroad an easement for the only purpose a railroad would require a strip of land: to lay tracks and operate a railroad “over, across, and through” the Evans’ land. “Reference to the intended use of the land indicates that an easement was conveyed; the grantors would have no reason to specify the use if conveying a fee simple.” Brunt Trust, supra, at 256 . The language of the deed limits the estate granted the railroad to a right-of-way easement. When the railroad abandoned that easement, their easement was extinguished and the land reverted to the Tazians as assigns of the Evans. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9726074. Public record. Not legal advice.