BEFORE ROY NOBLE LEE, P.J., AND ROBERTSON AND ANDERSON, JJ.,
ANDERSON, JUSTICE, FOR THE COURT:
This is an appeal from a decree of a Special Chancellor of Marion County entering summary judgment for the appellees, plaintiffs below, on their complaint and finding that appellants, defendants below, had breached a condition subsequent in the deed to the lands in dispute, triggering a right to re-entry on the part of the plaintiffs and cancelling the title of defendants to the disputed land. We reverse and remand for a trial on the merits.
On July 30, 1907, Missouri Foxworth and five others executed a deed conveying three tracts of land totalling 12.91 acres in Marion County, MS to the New Orleans Great Northern Railroad Company (hereinafter NOGN). Most of the land involved is located in the Town of Foxworth. In consideration of the transfer, the deed contained the grantors agreement to:
release, discharge and acquit said New Orleans Great Northern Railroad Co., its successors and assigns, from any and all liability for and on account of the construction, maintenance, and operation of the railroad thereover and for using, enjoying and appropriating the land hereby conveyed to all or any such railroad purposes as may be desired forever.
Should the New Orleans Great Northern Railroad Co., its successors or assigns, abandon the depot that is to be built at this point, the lands described above is [sic] to revert to the grantors herein.
The tracks of the old NOGN now belong to the Illinois Central Gulf Railroad. It is well known that railroading has declined in the twentieth century, and the railroad serving Foxworth did not escape the hard times. In 1962 the Public Service Commission gave permission for the railroad to close the depot at Foxworth, thus setting the stage for a decade of litigation over railroad services to that community.
This is the second suit involving the Foxworth deed. In 1979 Justice Cofer, writing for the Court, held that the depot requirement in the 1907 deed was a condition subsequent rather than a reverter and the right of re-entry was not triggered by the closure of the depot or by the conveyance of part of the property to third parties, since the railroad was still in" substantial compliance "with the condition. We noted that the grantors'" manifest intention was to obtain railroad services for themselves and for the Foxworth community, and not merely to have a depot building. . . . "Hathorn v. Illinois Central Gulf RR Co., 374 So. 2d 813, 814 (Miss. 1979).
The plaintiffs in the present action (who are, with minor exceptions, the same as those in Hathorn I) argue that since railroad services to Foxworth have been curtailed still further, and the greater part of the land has now been conveyed away, the railroad is no longer in substantial compliance and a right to re-enter has arisen in them. The railroad no longer has an agent at Foxworth; nor does it maintain any structure there except a" way bill box "in which requests for service can be placed.
When the cause came on to be heard before the Special Chancellor, both sides moved for summary judgment. The chancellor used the pleadings and affidavits to prepare lists of disputed and undisputed facts. He noted that there was considerable controversy over the quality and frequency of rail service to Foxworth. However, he observed that it was not disputed that" almost all "of the land in question had been conveyed to third parties, and concluded that as a matter of law this constituted an abandonment of the grant. He further held that the railroad's loss of control over the property made it impossible for the railroad to guarantee that the property would be used for" railroad purposes. "Thus, he held that the condition subsequent had been breached, and he gave summary judgment to the plaintiffs.
It is obvious from the record that the chancellor
considered the abandonment issue to be so decisive as to entitle the plaintiffs to judgment as a matter of law, even though many other issues were in dispute.
Summary judgments are governed by Rule 56, Mississippi Rules of Civil Procedure, which is neatly summarized by its own official comment." A motion for summary judgment lies only where there is no genuine issue of material facts, summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. "See Mississippi Moving & Storage Co. v. Western Electric Co., Inc., 498 So. 2d 340, 342 (Miss. 1986).
The record in this case reveals numerous factual controversies that cannot be resolved from the pleadings and affidavits. Most deal with whether the railroad was offering reasonable services to the Foxworth area. It is disputed how often the railroad's roving service agent comes to Foxworth, how often trains stop at Foxworth, and the extent the piggy-back tracks are still being used. As for the granted lands, the chancellor's opinion effectively recognizes that there is a dispute as to whether the lands now in the hands of third parties are being used for" railroad purposes. "However, he simply resolved the dispute in favor of the plaintiffs by saying that the" defendant ...