This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-4

State of Minnesota,

Respondent,

vs.

Marie E. Lahman et al.,

Appellants.

Filed June 30, 1998

Reversed

Amundson, Judge

Beltrami County District Court

File No. C8-96-1571

Hubert H. Humphrey III, Attorney General, David L. Phillips, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Jerry O. Relph, Hughes, Thoreen, Relph & Hanson, P.A., 110 South Sixth Avenue, Suite 200, P.O. Box 1718, St. Cloud, MN 56302 (for appellants)

Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Schultz, Judge.[*]

UNPUBLISHED OPINION

AMUNDSON, Judge

Appellants challenge the district court's determination that respondent state is the owner in fee of a strip of former railroad right-of-way land. Because the state transferred its interest in the property prior to the termination of the easement, we reverse.

FACTS

In 1901, the State of Minnesota gave a right-of-way deed to the Minnesota and International Railway Company over a strip of land for railroad purposes (hereinafter "right-of-way"). The deed contained language that restricted the grant, as required by the enabling legislation. The grant was for the

free and unobstructed use of and right-of-way over and upon the following tracts or parcels of land * * * described as follows, to wit: A strip of land one hundred feet in width being fifty feet on each side of the center line of the main track of the [railroad grantee], as the same is laid offCsurveyed and now being constructed through and upon the following described premises.

The deed also contained the following language:

To have and to hold the said granted premises for the uses and purposes aforesaid with the appurtenances thereunto belonging to said party of the second part, its successors and assigns so long as the same shall be used and occupied for railroad purposes.

In 1908, the state gave a state auditor's certificate, which was recorded November 18, 1913, in absolute form conveying all of Government Lot 3, Section 6, Township 148 North, Range 31 West, to Thomas Donaldson, reserving only mineral rights. Following several assignments of the rights under such certificate, the state, on February 3, 1948, issued and delivered its patent in absolute form to the then-holder of the rights under the auditor's certificate, reserving only mineral rights. This patent was recorded on July 15, 1949.

On May 21, 1985, the Interstate Commerce Commission issued its decision granting the request of the railway company to abandon the railroad over the right-of-way. This decision also denied the state's request to determine the affected right-of-way suitable for public use and acquisition under the state rail bank program. The tracks were removed sometime in 1986 or 1987. In 1989, the railway company requested the district court to absolve the railway company of any landowner responsibility for maintaining drainage or water control culverts between the portions of the property. This request was granted on July 17, 1989.

On December 30, 1991, the Burlington Northern Railway Company deeded the right-of-way to the state. This deed was recorded on May 28, 1992.

On July 27, 1992, appellants Marie E. Lahman, et al. (Lahman) obtained title to the north 1329 feet of said Government Lot 3 lying north and west of the Little Gull River by virtue of a judgment in their favor. The parcel awarded to Lahman included the right-of-way. Lahman claims title by virtue of a patent issued by the state in 1948 and successive conveyances vesting record title to the right-of-way. The patent was to all of Government Lot 3 and made no reference to or exception of the right-of-way. Furthermore, Lahman has used and occupied the right-of-way since its abandonment and paid taxes on the right-of-way since the 1992 judgment.

The state brought an action to quiet the title to the strip of former railroad right-of-way. The district court entered judgment determining the state to be the owner in fee of the property at issue. This appeal followed.

D E C I S I O N

Rules of construction applicable to contracts in general are applicable to deeds. Norton v. Duluth Transfer Ry. Co., 129 Minn. 126, 130, 151 N.W. 907, 908 (1915). Unless there is ambiguity in a contract requiring external evidence, the construction and effect of a contract are legal questions. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979). This court is not bound by and need not give deference to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

"Right-of-way" grants have been generally held to convey an easement, not a conveyance of the land itself. Minneapolis Athletic Club. v. Cohler, 287 Minn. 254, 257, 177 N.W.2d 786, 789 (1970). In 1910, the supreme court interpreted the claim of a grant of lands to a railway company under the same statute that authorized and was recited in the 1901 deed. See Lawver v. Great Northern Ry. Co., 112 Minn. 46, 127 N.W. 431 (1910). In Lawver, a railway company had constructed a rail line and was occupying land that was then included in a subsequent state certificate of conveyance to a private party. Id., 112 Minn. at 48-49, 127 N.W. at 431-32. No reservation of the rail right-of-way was set forth in the certificate. Id. The supreme court concluded that "had the statute been complied with [thus entitling the railway company to a deed under the statute], the railroad company would have acquired an easement upon the land for the construction and maintenance of its right-of-way." Id., 112 Minn. at 50, 127 N.W. at 432.

In 1915, the supreme court held that the language

"To have and to hold the same, * * * so long as the same shall be used as a right of way for tracks and * * * for any other use consistent with or embraced in the purposes and general nature of the business of said grantee * * *,"

granted an easement which terminated when the parcels were no longer used as a railroad. See Norton, 129 Minn. at 130, 151 N.W. at 908.

There are no Minnesota cases that have interpreted grants to railway companies for right-of-way purposes as conveying anything other than an easement. Additionally, several jurisdictions outside Minnesota have also adopted the rule that if a conveyance of land to a railway company, otherwise absolute in nature, contains any limiting language, the grant is for an easement only. See Keokuk County v. Reinier, 227 Iowa 499, 288 N.W. 676 (1939), Harvest Queen Mill & Elevator Co. v. Sanders[cedilla]189 Kan. 536, 370 P.2d 419, (1962).

Here, the 1901 grant states "To have and to hold the said granted premises for the uses and purposes aforesaid* * *." The right of use is a servitude only and terminates upon the cessation of use and occupation for railway purposes.

In 1901, the state gave the railway company an easement which terminated upon the abandonment of the right-of-way for railway purposes in 1986 or 1987. Nothing short of a conveyance from or agreement of the holder of the subservient estate can expand that use. See Thomas v. Mrkonich, 247 Minn. 481, 485, 78 N.W.2d 386, 389 (1956). As such, upon abandonment of the easement, the fee owner holds title to the property free from any servitude. See Norton, 129 Minn. 126, 151 N.W. 907. The railway company abandoned the right-of-way well prior to the 1992 transfer. The railway company removed the tracks in 1986 or 1987, after obtaining an order from the Interstate Commerce Commission permitting it to abandon the rail line over the right-of-way. Furthermore, in 1988, the district court issued an order absolving the railway company of any liability for maintenance of the right-of-way. The railway company did not have an interest to pass back to the state in 1991. At the time the railway company stopped using the railway right-of-way for railroad purposes, the easement terminated and the property reverted to the owner in fee. Lahman, who received record title through successive conveyances, is the proper owner in fee of the right-of-way property.

Reversed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.