Appeal, No. 67, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 2445, in case of Charles J. Fleck v. Universal-Cyclops Steel Corporation. Judgment affirmed. Ejectment. Adjudication filed granting defendant's motion for judgment on the pleadings, and judgment entered, opinion by MONTGOMERY, J.; NIXON, J., dissenting. Plaintiff appealed.
Louis Cooper, for appellant.
Mahlon E. Lewis, with him Gerald W. Weaver, and Lewis & Drew, for appellee.
Before Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
Joseph McKeon was the owner in fee of a large tract of land in Allegheny County in 1885. In that year he conveyed to the Pittsburgh, Chartiers and
Youghiogheny Railway Company a strip of land comprising 11.83 acres. The deed recited that for a consideration of $6,000 McKeon "granted ... and conveyed ... to the said Pittsburgh, Chartiers and Youghiogheny Railway Company*fn1 and to its successors and assigns for the uses and purposes of their railway and the construction of works connected therewith, a right-of-way through and over said land the whole distance of said railway through the same, ...."*fn2 The habendum clause provided: "TO HAVE AND TO HOLD THE SAID STRIPS OF LAND AND THE SAID RIGHTS and privileges and uses to the said Pittsburgh, Chartiers and Youghiogheny Railway Company, its successors and assigns, so long as the same shall be required for the uses and purposes of said Railway."
In 1923 Collier Land Company, which was a successor in title to McKeon, conveyed a portion of the larger tract of land to the Vanadium Corporation of America. The deed (pertinently) described the land conveyed as running "to the Westerly line of the right-of-way of the Pittsburgh, Chartiers and Youghiogheny Railroad;". In 1928 Collier Land Company conveyed still another portion of land to Vanadium, part of which was bounded by "the Westerly right-of-way of the Pittsburgh, Chartiers and Youghiogheny Railroad". The lands thus conveyed to Vanadium were subsequently conveyed to the defendant, Universal-Cylops Steel Corporation.*fn3 In 1940 Collier Land Company conveyed to Cyclops a tract of land, the eastern boundary of which was "the right-of-way of the Pittsburgh, Chartiers and Youghiogheny Railroad Company". Cyclops thus became the owner in fee simple of all the land on both sides of the Railway Company's right-of-way.
In 1952 Collier Land Company by quitclaim deed, conveyed all its right - whatever rights it then had - in the entire tract to Fleck, the plaintiff herein. In 1954 the Railway Company abandoned its right-of-way.
Fleck brought ejectment against Cyclops for the aforesaid strip of land contending that McKeon's 1885 deed to the Railway Company conveyed a base fee for railroad uses and purposes and that when the railroad abandoned this use, the strip of land reverted to Fleck as successor in title to McKeon. A (divided) lower Court after considering Cyclops' answer ...