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GARRY v. ATCHISON, TOPEKA AND SANTA FE RAILWAY CO.

No. 6940.

378 P.2d 609 (1963)

71 N.M. 370

Annie Wildy Lea GARRY and Ella Lea Dow, Plaintiffs-Appellees, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Waples-Platter Company, a corporation, Kimbell-Lubbock Company, a corporation, George J. Maloof & Company, a corporation, and A. B. Carpenter, an individual, Defendants-Appellants.

Supreme Court of New Mexico.

February 8, 1963.

Attorney(s) appearing for the Case

Bryan G. Johnson, Albuquerque, for appellants A. T. & S. F. Ry. Co., Waples-Platter Co., and Kimbell-Lubbock Co.

John P. Dwyer, Virgil L. Brown, Albuquerque, for appellant George J. Maloof & Co.

Carpenter, Phelps & Norwood, Roswell, for appellant A.B. Carpenter.

Neal, Neumann & Neal, Carlsbad, Wm. C. Schauer, Roswell, Thomas Lea Garry, Alhambra, Cal., for appellees.

MOISE, Justice.

In 1894 Joseph C. Lea and wife, by warranty deed duly recorded, conveyed a strip of land in the town of Roswell to James J. Hagerman. The deed contained the following language:

"This deed is made upon the express condition that the land above conveyed is occupied by the Pecos Valley Railway Company, or its successors for purposes and business of a railroad character or for the convenience of such company or its successors in handling its freight...

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