COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
No. 08-24-00347-CV
SRO Land & Minerals, LP; Monroe Properties, Inc.; MES Land & Minerals, LP;
Barry Coates Roberts and George L. Stieren, as Trustees of Coates Energy Trust;
Jenny Roberts Schimpff Trust; Catherine G. Roberts Trust; Barry Coates Roberts
Trust; Lisa Stieren Hardeman Trust; George L. Stieren Trust; Wendy Stieren Wirth
Trust; Kelly Stieren Daniell Trust and Amy E. Stieren Trust; collectively “Coates
Energy”; The Allar Company, a Texas Corporation; and Mary Rose Sievers Alonzi
and Lucy Annette Sievers, as Trustees of Lucy H. Sievers Trust, Appellants
v.
BNSF Railway Company, Appellee
On Appeal from the 143rd District Court
Reeves County, Texas
Trial Court No. 21-04-23946-CVR
M E MO RA N D UM O PI NI O N
The underlying dispute involves the interpretation of a 1901 deed (the 1901 Deed) from
Thomas R. White, Jr. (the Grantor) to The Pecos River Rail Road Company conveying land for
the purpose of maintaining and operating a railroad line. Pecos River Rail Road has long since been abandoned, and its successor-in-interest is Appellee BNSF Railway Company. Appellants
own mineral interests in tracts of land traversed by the abandoned railway and those properties are
subject to the 1901 Deed. Appellants sued BNSF to determine title to the properties at issue.
Appellants alleged the 1901 Deed conveyed only a right of way, and not any mineral interests.
BNSF asserted the 1901 Deed conveyed a fee simple interest in the land, and claimed entitlement
to oil and gas royalties from the properties.
The parties filed cross-motions for traditional summary judgment on the construction and
interpretation of the 1901 Deed. Following a hearing on the motions, the trial court granted BNSF’s
motion, denied Appellants’ motion, and decreed that the 1901 Deed conveyed fee simple title of
the land to Pecos River Rail Road, “insofar and only insofar as said deed conveyed property within
the boundaries of the properties owned by [Appellants], thereby vesting The Pecos River Rail
Road Company with fee simple title to said lands.”
On appeal, Appellants argue the trial court erred in concluding that the 1901 Deed
conveyed fee simple title and in overruling Appellants’ claim that it conveyed only an easement.
We affirm.1
I. STANDARD OF REVIEW AND APPLICABLE LAW
When, as here, both sides move for summary judgment and the trial court grants one motion
and denies the other, the reviewing court considers both sides’ summary judgment evidence and
determines all issues presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). On cross-motions for traditional summary judgment, each party bears the burden of
establishing that it is entitled to judgment as a matter of law. See Guynes v. Galveston Cnty., 861
1
Because the factual and procedural background are well known to the parties and the single dispositive issue on appeal is a question of law, we focus this memorandum opinion on that question, pursuant to Texas Rule of Appellate Procedure 47.1. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
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S.W.2d 861, 862 (Tex. 1993). An appellate court reviews a trial court’s summary judgment ruling
de novo. Valence Operating, 164 S.W.3d at 661. In this case, the cross-motions presented
traditional grounds for summary judgment on a question of law based on undisputed facts. See
Tex. R. Civ. P. 166a(a)(1). Therefore, we review the cross-motions for summary judgment filed
in this case by determining the legal question presented. See URI, Inc. v. Kleberg Cnty., 543
S.W.3d 755, 763 (Tex. 2018) (“Both the presence of ambiguity and interpretation of an
unambiguous contract are questions of law we review de novo using well-settled contractconstruction principles.”); Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991) (“The construction
of an unambiguous deed is a question of law for the court.”).
“The standard of review we apply in a deed construction case decided on summary
judgment is tied directly to whether the deed is clear on its face.” BNSF Ry. Co. v. Chevron
Midcontinent, L.P., 528 S.W.3d 124, 128 (Tex. App.—El Paso 2017, no pet.). We review a deed
de novo, “limiting our scope of review to the ‘four corners’ of the document and excluding any
extrinsic evidence from consideration.” Clayton Williams Energy, Inc. v. BMT O & G TX, L.P.,
473 S.W.3d 341, 348 (Tex. App.—El Paso 2015, pet. denied). Only when the document at issue
is ambiguous does it “open[] the door to parol evidence that sheds light on the parties’ true intent”;
in that event, we would interpret the deed “as a mixed question of fact and law.” Id.
“A deed is not ambiguous merely because certain provisions of the deed conflict or appear
to be internally inconsistent.” BNSF Ry., 528 S.W.3d at 128. If the deed is “reasonably susceptible
to more than one meaning after the established rules of interpretation have been applied, then the
instrument is ambiguous.” Clayton Williams Energy, 473 S.W.3d at 348. If there is only one
reasonable reading of the deed, then the parties’ intent is a pure question of law and we must
interpret the terms of the deed as written. Id.
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We assume the parties “intended every clause to have some effect; therefore, the language
of the deed should be interpreted so that no clause is rendered meaningless.” BNSF Ry., 528
S.W.3d at 128. When seeking to ascertain the parties’ intention, we attempt to harmonize all parts
of the deed. Luckel, 819 S.W.2d at 462. “Even if different parts of the deed appear contradictory
or inconsistent, the court must strive to harmonize all of the parts, construing the instrument to
give effect to all of its provisions.” Id. We will “not strike down any part of the deed, unless there
is an irreconcilable conflict wherein one part of the instrument destroys in effect another part
thereof.” Id. We bear in mind that these canons are useful aids, but our primary purpose in
construing a deed is to give effect to the parties’ intent as expressed within the four corners of the
document. Id. “That intention, when ascertained, prevails over arbitrary rules.” Id. “We read deeds
as one cohesive document, and do not cherry-pick phrases and read them in isolation, but rather
harmonize conflicting provisions to the best extent possible.” BNSF Ry., 528 S.W.3d at 127.
In this case, the threshold question for summary judgment purposes is whether the 1901
Deed is ambiguous on its face. If it is not, then we interpret the deed as written and not as the
parties would wish. Clayton Williams Energy, 473 S.W.3d at 348.
II. DISCUSSION
A. The 1901 Deed
The 1901 Deed begins with a recital of the consideration received by the Grantor from The
Pecos River Rail Road Company:
Know all men By These Presents: That Thomas R. White, Jr., of the County
of Union in the State of New Jersey, acting by his Agent and Attorney in fact, Ira
H. Evans, in consideration of Five hundred eighteen 10/100 ($518.10) Dollars, to
him paid by The Pecos River Rail Road Company, a corporation duly organized
and existing under and by virtue of the laws of the State of Texas, the receipt of
which is hereby acknowledged . . . .
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This recital of consideration is followed by the granting clause, which identifies what the Grantor
conveyed and states the purpose of the conveyance:
[Grantor] has granted, bargained and sold, and by these presents does grant,
bargain, sell and convey unto the said The Pecos River Rail Road Company all and
singular the right, title, and interest of the said Thomas R. White, Jr., in and to those
certain pieces or parcels of land, for the purpose of maintaining and operating the
line of railroad owned by the second party thereupon, a way and right of way one
hundred (100) feet in width being fifty (50) feet on each side of its main track over,
upon and through the following named surveys situated in Reeves County, Texas,
as surveyed for the Houston & Great Northern R. R. Co., viz: [survey numbers
omitted] which said right of way does and shall embrace a strip of ground fifty (50)
feet in width on each side of the center line of said second party’s constructed
railroad thereon, which said center line is located upon and traverses the surveys
above named as follows, to wit: [centerline description].
It is the object and intention of this instrument to convey to the Pecos River
Rail Road Company, a strip of land fifty (50) feet in width on each side of the centre
line of the main track of its railroad, as now constructed over and across the surveys
hereinbefore described and no more, irrespective of any errors or mistakes as to
calls or description which may be found in this instrument.
The final two clauses of the deed are the habendum clause and the warranty clause:
And the said Thomas R. White, Jr., hereby binds himself, his heirs and
assigns, to warrant and forever defend, all and singular, the said premises unto the
said The Pecos River Rail Road Company successors and assigns, against the
claims of all persons lawfully claiming or to claim the same, or any part thereof,
by, through, or under him.
To have and to hold the premises above mentioned and described unto the
said The Pecos River Rail Road Company, its successors and assigns, forever.
B. The parties’ arguments
Although the parties all assert the 1901 Deed is unambiguous, they interpret it in different
ways. On one hand, Appellants maintain that the deed conveyed only an easement. In support, they
point to language within the deed’s granting clause, which refers to “a way and right of way”
“over, upon and through” the tracts at issue and again refers to “said right of way.” On the other
hand, BNSF maintains that the deed conveyed a fee simple. In support, it asserts that a plain
reading of the language “all and singular the right, title and interest” in the deed’s granting clause
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indicates the Grantor intended to convey all of his interest in and to those certain “pieces or parcels
of land.”
Appellants counter that BNSF’s argument omits essential language from the granting
clause: what is the piece or parcel of land being conveyed? Appellants contend the answer to that
question lies in the remaining portion of the granting clause: “a way and right of way one hundred
(100) feet in width, being fifty (50) feet on each side of its main tract over, upon and through the
following named surveys situated in Reeves County, Texas[.]” According to Appellants, the estate
being conveyed is only a “way and right of way of one hundred feet.”
We agree with the parties that the 1901 Deed is not ambiguous. We therefore interpret the
deed language as a matter of law. Luckel, 819 S.W.2d at 461.
C. Analysis
Our primary duty when construing the 1901 Deed is to ascertain the intent of the parties
from the language in the four corners of the deed, and we seek to harmonize all parts of the deed.
Id. We begin our analysis with the deed’s granting clause. BNSF Ry., 528 S.W.3d at 135 (“Neale
directs us to look at the granting clause to determine what was conveyed.”).
“The purpose of the granting clause is to define and designate the estate conveyed.”
Richardson v. Mills, 514 S.W.3d 406, 414 (Tex. App.—Tyler 2017, pet. denied). The 1901 Deed’s
granting clause states that the Grantor “has granted, bargained and sold, and by these presents does
grant, bargain, sell and convey unto . . . The Pecos River Rail Road Company all and singular the
right, title, and interest of . . . Thomas R. White, Jr., in and to those certain pieces or parcels of
land.”2 This clause is followed by a statement of the purpose of the conveyance: “for the purpose
2
The opening recital of the 1901 Deed comports with the granting claims: “[Grantor] . . . in consideration of Five hundred eighteen 10/100 ($518.10) Dollars, to him paid by The Pecos River Rail Road Company, . . . the receipt of which is hereby acknowledged, has granted, bargained and sold” to Pecos River Rail “all and singular the right, title, and interest of the [grantor] in and to those certain pieces or parcels of land . . . .”
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of maintaining and operating the line of railroad owned by the second party thereupon, a way and
right of way one hundred (100) feet in width being fifty (50) feet on each side of its main track
over, upon and through the following named surveys situated in Reeves County, Texas, . . . viz:
[survey numbers omitted] which said right of way does and shall embrace a strip of ground fifty
(50) feet in width on each side of the center line of said second party’s constructed railroad
thereon.”
(1) “Right of way”
The focus of the parties’ dispute over the interpretation of the granting clause is primarily
on the use of the phrase “right of way.” Appellants contend the 1901 Deed conveys an easement
based on the two sentences that appear immediately after the description of the land: “for the
purpose of maintaining and operating the line of railroad owned by the second party thereupon, a
way and right of way one hundred (100) feet in width being fifty (50) feet on each side of its main
track over, upon and through” the surveys (emphasis added). Appellants argue that the deed
conveyed only a railway easement because the granting clause states that it is conveying a “way
and right of way” “for the purpose of maintaining and operating the line of railroad.” However,
Appellants acknowledge, and we agree, that the placement of the phrase “right of way” in the
language of a deed is significant.
In Texas, railroad companies may, by deed, acquire land for the operation and maintenance
of their railroads in fee simple or as an easement. “An estate in land that is conveyed or devised is
a fee simple unless the estate is limited by express words or unless a lesser estate is conveyed or
devised by construction or operation of law.” Tex. Prop. Code § 5.001(a). In determining whether
a deed conveys a fee simple or an easement, Texas courts examine the use and placement of the
phrase “right of way.” For example, in Calcasieu Lumber Co. v. Harris, the Texas Supreme Court
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recognized that “the words ‘right of way’ have become descriptive of the land over which a railway
runs, to the extent to which the easement extends,” but observed that, more generally, “[t]he words
‘right of way,’ if not defined, are expressive of the very nature of the right ordinarily held by
railway companies in the lands over which their roads run; a right to use the land only for railway
purposes; an easement.” 13 S.W. 453, 455 (Tex. 1890). Subsequently, in Right of Way Oil Co. v.
Gladys City Oil, Gas & Manufacturing Co., the high court remarked, “[a]ll authorities agree that
the grant of a ‘right of way’ confers only an easement in the land,” but that “land to be used as a
right of way may be conveyed in fee; therefore the character of the title conveyed must be
determined by the words used and the attending facts and circumstances.” 157 S.W. 737, 739
(Tex. 1913).
Texas courts applied the holdings of Calcasieu Lumber and Right of Way Oil Co. over the
ensuing decades, until the Texas Supreme Court clarified that the term “right of way” has a twofold meaning. Texas Elec. Ry. Co. v. Neale, 252 S.W.2d 451, 454 (Tex. 1952). The Neale Court
explained that the term may be used to describe a right belonging to a party of passage over any
tract and may also be used to describe the strip of land upon which railroad companies construct
their road-bed. Id.; see also Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co., 137 S.W.
171, 178 (Tex. App.—Beaumont 1911), aff’d, 157 S.W. 737 (Tex. 1913) (“It sometimes is used to
mean the mere intangible right to cross; a right of crossing; a right of way.”). Neale directed courts
to look at a deed’s granting clause, stating two rules: first, “a deed which by the terms of the
granting clause grants, sells and conveys to the grantee a ‘right of way’ in or over a tract of land
conveys only an easement”; and second, “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
8
paragraph of the deed the land conveyed is referred to as a right of way.” Neale, 252 S.W.2d at
453.
In Neale, the phrase “right of way” was not in the granting clause.3 252 S.W.2d at 453.
Instead, the fourth and sixth paragraphs of the deed stated:
(4) It is further understood herein that the above strip of land is conveyed upon the
further condition and consideration that said Southern Traction Company will,
as soon as it begins operation, establish a stop on the right of way hereinabove
conveyed about the center thereof for the purpose of letting passengers on and
off its cars . . ., and said company further agrees to allow to be opened and
dedicated as streets across said right of way such streets as may be opened by
grantors herein, it being understood that the property through which this right
of way is given is to be opened up as an addition to the city of Waco, [and]
(6) However, this deed is made as a right-of-way deed for an Interurban Railway
from Dallas to Waco, Texas, and in case said railway shall not be constructed
over said land then this conveyance shall be of no effect.
Neale, 252 S.W.2d at 453 (emphasis added).
The Court determined that because “the words as there used [in paragraphs 4 and 6] clearly
have reference to the land and not to an intangible right, they are not contradictory of the granting
clause.” Id. at 456. The Court concluded that the granting clause in the deed did “not purport to
convey merely a right of way or merely an easement” even though words later in the deed appeared
to “show the purpose for which the grant is made, . . . those words do not undertake to reduce or
debase what has been granted from a fee title to a mere easement.” Id. at 454.
In Stanbery v. Wallace, the grantor did “grant, sell and convey unto the County Judge of
Coleman County, Texas, . . . all that certain real estate situated in the town of Coleman[,] . . . viz:
3
The granting clause stated: “Know All Men By These Presents: That We Geo. S. McGhee, Mrs. Dora Behrens and Abe Gross, for and in consideration of One Dollar to me in hand paid and the benefits which will accrue to my other property by reason of the construction of the Interurban Railway hereinafter mentioned, do by these presents grant, sell and convey unto Chas. H. Allyn, W. D. Lacy, J. K. Parr, S. M. Dunlap, J. Baldridge, J. Houston Miller and W. R. McDaniel, Trustees of the Southern Traction Company, their successors and assigns, the following described piece or parcel of land, to-wit: [property description.]” Neale, 252 S.W.2d at 452.
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[property description omitted], the two lots herein conveyed being deeded for the following
purpose and trust, the said two lots are to be forever used as a street connecting the court house
square on the east end of said lots with the Concho Street on the west end of said lots, and to be
never used for any other purpose.” 45 S.W.2d 198, 199 (Tex. [Comm’n Op.] 1932). The issue on
appeal was whether the deed conveyed a mere easement for street purposes. Id. The court
“observed that the granting clause of the deed . . . does not purport to grant over this land a right
of way for street purposes, but that it conveys the land itself.” Id. The court noted that the clause
was “followed by a recital restricting the use of the land to street purposes,” but held that “[s]uch
restriction . . . does not operate to limit the grant to a mere easement, as it is generally held that, if
the granting clause conveys a fee title to the property, subsequent recitals, which merely limit the
use to which the same may be put, do not restrict the conveyance to an easement.” Id.
On the other hand, the BNSF Railway Court concluded that the deed in that case granted
an easement, in part, based on the placement of the phrase. In that case, the phrase “right of way”
appeared in the granting clause. 528 S.W.3d at 126–27 (grantor “does GRANT, BARGAIN, SELL,
RELINQUISH and CONVEY unto the said party of the second part [Panhandle], and unto its
successors and assigns, for a right of way, that certain strip of land hereinafter described, as the
same has been finally located over, through or across the following tracts of land”). The court held
that “[t]he phrase ‘for a right of way’ appears in the granting clause directly in front of the phrase
‘that strip of land,’ and at the time the deed was written, the placement of the phrase in the granting
clause before the words ‘that strip of land’ would have been understood as limiting the nature of
any subsequently described conveyance.” Id. at 133.4
4
See also Right of Way Oil, 157 S.W. at 737–38, 739 (holding granting clause conveyed an easement where “right of way” was contained within description of granting clause: “That I being the owner in fee of the following described tract of land, [description omitted][.] . . . For the consideration of one dollar to me in hand paid, and the further
10
Under both Neale and BNSF Railway, placement of the “right of way” language in a deed
is significant. In the deed before us, neither the phrase “right of way” nor any other language
suggesting an easement or restriction on the conveyance appears in the granting clause. Instead,
the phrase appears in the statement of purpose, after the granting clause’s description of the
property conveyed: “for the purpose of maintaining and operating the line of railroad owned by
the second party thereupon, a way and right of way one hundred (100) feet in width being fifty
(50) feet on each side of its main track over [and] . . . which said right of way does and shall
embrace a strip of ground fifty (50) feet in width on each side of the center line of said second
party’s constructed railroad” (emphasis added).
We conclude that the placement of the phrase “way and right of way” after the words “in
and to those certain pieces or parcels of land” in the 1901 Deed indicates the phrase was not
intended to limit the nature of the previously described fee simple conveyance but rather to
describe the intended use of the land. See Neale, 252 S.W.2d at 453 (“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”);
Hidalgo Cnty. v. Pate, 443 S.W.2d 80, 85–86 (Tex. App.—Corpus Christi 1969, writ ref’d n.r.e.)
(“In the first portion of this instrument set forth above, the granting clause has no language
restricting the conveyance to that of an easement. ‘Right-of-way’ is used only in the description
consideration of the benefits and advantages that will accrue to me by the construction of a railway over said tract of land, have and do hereby grant, sell and convey unto the East Texas Railway Company, for the purpose of constructing, operating and maintaining its railroad, the right of way, two hundred feet in width, over and upon the above-described tract of land; together with the right to take and use all the timber, earth, stone and mineral existing or that may be found within the right of way hereby granted”); Gulf Coast Water Co. v. Hamman Expl. Co., 160 S.W.2d 92, 93, 96 (Tex. App.—Galveston 1942, writ ref’d) (holding granting clause conveyed an easement where “right of way” was contained within description of granting clause: “do grant, sell, and convey unto the Gravity Irrigation & Power Company, the following described property, and premises situate in the County of Matagorda, State of Texas, to-wit: . . . 11.25 acres, right-of-way of the eastern lateral across Section X-3, I. & G.N. Survey, and being a strip 100 ft. wide and lying 50 ft. on each side of the center line of the said lateral”).
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portion [of] the instrument. Its use does not denominate an attempt of the parties to describe an
incorporeal right of passage over the land of another.”).
“While [the deed at issue] does not explicitly state that it conveys a fee title, it also lacks
‘express words’ clearly indicating an intent to convey a lesser estate.” Union Pac. R.R. Co. v.
Ameriton Props. Inc., 448 S.W.3d 671, 684 (Tex. App.—Houston [1st Dist.] 2014, pet. denied);
see also Tex. Prop. Code § 5.001(a). “Instead, it purports to convey ‘[pieces or parcels] of land.’”
Ameriton Props., 448 S.W.3d at 684. The 1901 Deed “describes the grant in terms of the land
itself, not in terms of [the railway’s] rights over the land.” Id. We conclude the granting clause in
the 1901 Deed reflects a fee simple conveyance of all the Grantor’s “right, title, and interest” in
the land described in the deed.
(2) “Premises”
The last two clauses in the 1901 Deed (the warranty clause and the habendum clause) refer
to the “premises”: “[the Grantor] hereby binds himself, his heirs and assigns, to warrant and forever
defend, all and singular, the said premises,” and “To have and to hold the premises above
mentioned and described unto the said The Pecos River Rail Road Company, its successors and
assigns, forever.” Appellants assert the reference to “the premises above mentioned and
described,” indicates that the term “premises” should comport with the deed’s preceding
description of the conveyance as an easement.
In BNSF Railway, the habendum clause allowed “the grantee ‘TO HAVE AND TO HOLD
the said premises, together with all appurtenances.” 528 S.W.3d at 134 (emphasis in original). The
court held that “[t]he word ‘premises’ can be used to suggest that a conveyance transfers only an
easement.” Id. However, the words “property and premises” are “[general terms] and may be
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applied equally well to a conveyance of the fee or an easement.” Gulf Coast Water Co. v. Hamman
Expl. Co., 160 S.W.2d 92, 95 (Tex. App.—Galveston 1942, writ ref’d).
In Brightwell v. Int’l-Great Northern R.R. Co., the Court determined that the deed
conveyed a fee simple, not an easement; there, the deed used the term “premises” in a later clause
referring to what was being granted: “[t]o have and to hold, all and singular, the said premises unto
the said International Railroad Company, or its assigns, forever.” 49 S.W.2d 437, 438, 440
(Tex. 1932); see also Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878, 879 (Tex. 1940)
(“Likewise the clause of general warranty has reference to ‘the said premises,’ meaning the land
described in the granting clause, and, but for the last paragraph of the deed retaining an undivided
interest in the minerals, would warrant the title to the land including the surface estate and all of
the minerals.”).
We likewise conclude that the use of the word “premises” in the final two clauses of the
1901 Deed is not determinative of whether an easement or a fee simple was conveyed, and, in this
case, is consistent with the conveyance of a fee simple as articulated in the granting clause.
(3) “Purpose”
Appellants assert that under the holdings of Neale and BNSF Railway, the 1901 Deed
conveyed only a railway easement because the granting clause states it is conveying a “way and
right of way” “for the purpose of maintaining and operating the line of railroad.” The deed states
that the purpose of the conveyance is for the maintenance and operation of “the line of railroad
owned by the second party thereupon, a way and right of way one hundred (100) feet in width
being fifty (50) feet on each side of its main track over, upon and through” the surveys described
in the deed. The purpose is repeated later by the statement that “[i]t is the object and intention of
this instrument to convey to the Pecos River Rail Road Company, a strip of land fifty (50) feet in
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width on each side of the centre line of the main track of its railroad, as now constructed over and
across the surveys hereinbefore described and no more.”
The Neale Court explained that a “declaration in a deed of the purpose for which land is
conveyed or the use to be made of it does not impose a condition upon the title granted; nor does
it operate to limit the grant to a mere easement.” 252 S.W.2d at 456;5 accord id. at 454 (“There do
appear in the deed words which show the purpose for which the grant is made, but those words do
not undertake to reduce or debase what has been granted from a fee title to a mere easement.”). A
statement of purpose does not reduce or debase what is conveyed in a granting clause if that
statement of purpose appears “in a subsequent clause or paragraph of the deed.” Id. at 454.
The BNSF Railway court noted that “Neale makes clear that a statement of purpose does
not debase what is conveyed in a granting clause if that statement of purpose appears ‘in a
subsequent clause or paragraph of the deed.’” 528 S.W.3d at 131 (emphasis in original). The court
held, however, that “Neale does not say that a statement of purpose contained in a granting clause
is similarly unavailing.” Id. The court concluded “that the placement of the statement of purpose
in the granting clause means something.” Id. (“And in truth, when read in isolation, the granting
clause can be fairly construed as conveying either an easement or a tract of land. The rights being
conveyed in that strip of land are unclear by the terms of this granting clause.”).6
5
Referring again the fourth and sixth paragraphs of the deed, the Neale Court stated, “[i]n the use of the words ‘right of way’ in the two paragraphs the purpose for which the land is conveyed, the use intended to be made of it, is indicated. This fact, however, does not change the effect of the conveyance, for the declaration in a deed of the purpose for which land is conveyed or the use to be made of it does not impose a condition upon the title granted; nor does it operate to limit the grant to a mere easement.” Neale, 252 S.W.2d at 456.
6
The BNSF Railway court ultimately determined the deed before it was ambiguous. The court noted that “the language in the granting clause d[id] not clearly convey only a strip of land, but rather straddle[d] the line between the two different types of deeds, blending elements of both together.” 528 S.W.3d at 130. Thus, Neale was not dispositive in BNSF Railway because the granting clause at issue in that case was ambiguous. Id. at 135. BNSF Railway also does not aid Appellants here because the granting clause of the 1901 Deed is unambiguous.
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We conclude the statement of purpose in the 1901 Deed means nothing more than that the
line of the railroad would be constructed along a strip of land 50 feet in width on each side of the
main track “for right of way purposes.” The statement does not define or limit the estate or title
that has been granted. See Neale, 252 S.W.2d at 454 (noting “term ‘right of way’ . . . is also used
to describe that strip of land which railroad companies take upon which to construct their roadbed,” and concluding “the words ‘establish a stop on the right of way hereinabove conveyed’ mean
nothing more than that a stop shall be established on the strip or parcel of land that has been
conveyed by the deed for right of way purposes. They do not undertake to define or limit the estate
or title that has been granted”); Brightwell, 49 S.W.2d at 439 (court rejected Brightwell’s argument
that “the words or clause, ‘and granted herein as right-of-way’” evidenced the grantor’s intention
to convey a mere easement and not the fee, holding the words were not “used for the purpose of
limiting the title granted, but to confine to the land granted a right which otherwise would have
extended to other lands than the 200-foot strip).
(4) “Over” the land
The 1901 Deed uses the word “over” twice. Once it is used to state that the purpose of the
conveyance is for maintaining and operating the line of railroad on a strip of land “on each side of
its main track over, upon and through the following named surveys” (emphasis added). The second
time it is used to state the strip of land “fifty (50) feet in width on each side of the centre line of
the main track of its railroad, as now constructed over and across the surveys hereinbefore
described and no more” (emphasis added). Appellants rely on BNSF Railway to argue that the
word “over” showed that the grantor “did not intend to convey the entirety of the land described,
but only an easement.” 528 S.W.3d at 133. However, the BNSF Railway Court was construing the
use of the word “over” as it was contained in the opening recital recognizing the value of the
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benefits in a railroad passing over the land. Id. The court concluded that “[u]se of the word ‘over’
in the opening clause show[ed] that [the Grantor] did not intend to convey the entirety of the land
described, but only an easement.” Id. Additionally, the word “over” in the clauses describing the
conveyance were paired with “through and across,” referencing “a line traced by surveyors for the
right of way that went ‘over, through, and across’ various sections of land,” again “suggest[ing]
that the conveyance was intended to be an easement.” Id.
“The word ‘over’ may sometimes mean ‘above,’ and in other instances it may mean the
outside of.” Brightwell, 49 S.W.2d at 440. In Brightwell, the deed stated:
[Grantor] granted, bargained, sold and released, and by these presents do
grant, bargain, sell and release to the International Railroad Company, a strip of
(200) Two Hundred feet in width of land over the tracts of land particularly
described as follows, viz: a tract in Rusk County known as Six Hundred and Twenty
Eight acres of E. G. Sevier Survey and One Hundred and fifty acres of the W. P.
Chism League over and upon which the said Company has built or may hereafter
build its Railroad and also the right to have the same strip of land in width, over
and upon any other lands now owned or which may be hereafter owned by me in
this State, through which said Railroad has been, or may be hereafter built
Id. at 438 (emphasis added). The Court concluded, “in this instance [the word ‘over’] clearly means
from one side or extremity of grantor’s land to the other.”7 Id. We likewise conclude the use of the
word “over” in the 1901 Deed means from one extremity of the described land to the other and
does not indicate the conveyance of an easement.
(5) Conclusion
For the reasons stated above, we conclude that the 1901 Deed conveyed a fee simple in the
land described. Using a four-corners approach and reading the deed as a whole to determine the
parties’ intent and harmonize its language, our conclusion that the 1901 Deed conveys a fee simple
7
The Brightwell Court noted “[t]he identical word is used in the deed construed in the Calcasieu Case. That deed says: ‘Have granted * * * and by these presents do grant, bargain * * * to Houston and Texas Central Railroad Company, a strip of two hundred feet of land over the tracts of land,’ etc. As before shown, that deed was held to convey the fee.” 49 S.W.2d at 440.
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title is consistent with all clauses in the deed. The warranty clause states that the Grantor “binds
himself, his heirs and assigns, to warrant and forever defend, all and singular, the said premises
unto the said The Pecos River Rail Road Company successors and assigns, against the claims of
all persons lawfully claiming or to claim the same, or any part thereof, by, through, or under him.”
By warranting the “premises,” and not merely a right to cross the premises, the warranty clause
supports our determination that the 1901 Deed conveyed a fee simple. See Hidalgo Cnty., 443
S.W.2d at 85–86 (“In fact the legal description refers to the premises herein conveyed as being a
part of the premises conveyed by warranty deed of the grantors’ predecessors in title. . . . The
warranty clause does not limit the intent to grant a fee.”); see also Duhig, 144 S.W.2d at 879
(general warranty referred to “‘the said premises,’ meaning the land described in the granting
clause”).
The habendum clause in the 1901 Deed states that the Grantor “binds himself, his heirs and
assigns, to warrant and forever defend, all and singular, the said premises unto the said The Pecos
River Rail Road Company successors and assigns, against the claims of all persons lawfully
claiming or to claim the same, or any part thereof, by, through, or under him.” We conclude the
habendum clause also supports our determination that the 1901 Deed conveyed a fee simple. See
Neale, 252 S.W.2d at 453 (holding “[t]o have and to hold the same unto the said Trustees, . . . their
successors and assigns, forever free of all encumbrances, including telephone, telegraph and
transmission lines” “evidence[s] the intention on the part of the grantor to convey the title to the
tract or strip of land”); Hidalgo Cnty., 443 S.W.2d at 85–86 (“The habendum clause refers to the
land and premises and specifically states ‘TO HAVE AND TO HOLD the above described land
and premises together with all and singular the rights and appurtenances thereunto in any wise
belonging * * * forever.’”).
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III. CONCLUSION
BNSF established its entitlement to summary judgment as a matter of law, and the trial
court did not err in granting its motion and denying Appellants’ motion. We affirm the trial court’s
judgment.
LISA J. SOTO, Justice
June 19, 2026
Before Salas Mendoza C.J., Palafox and Soto, JJ.
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