Corey v. Edgewood Borough , 18 Pa. Super. 216 ( 1901 )

Opinion by

Rice, P. J.,

1. The first question to be considered is as to the nature, extent and duration of the easement reserved in the deed from John Z. Speer to John McIntosh. The language of the reservation is as follows: “ Reserving therefrom and thereout the right of wayof the railroad now upon said land, twenty-eight (28) feet wide, with a double track throirgh, over and upon said land, as said railroad is now located upon said land, so that said right of way shall be reserved to the said John Z. Speer, his heirs and assigns forever.” The history of the building of this railroad is fully set forth in the findings of fact stated by the court below, and for that reason need not be recited at length in this opinion, but a brief recapitulation of some of the facts will help to elucidate the question for consideration. At the date of this deed the real owners of the land described (John Z. Speer being, a mere trustee) were the owners of the railroad therein referred to. The railroad extended from the Hampton coal mines, also owned by them, to the Pennsylvania Railroad and was used by them for the transportation of coal from the former to the latter. At the date of the passage of the ordinance in question, the track, excepting that portion extending for a distance of 852 feet from the Pennsylvania Railroad to Coal street, had been tom up. The use made by the plaintiff (who either in severalty or in cotenancy with others had succeeded to the rights of the cestui que trustents of John Z. Speer).of the portion of the track or switch remaining upon the ground, “ was,” to adopt the language of the finding of the learned judge below, “ principally that of letting it out to a lumber merchant and a few others for the removal of cars loaded with lumber and other merchandise to a point at or near Coal street, and the income derived by him from this source was about #30.00 per month. No locomotive was used on the railroad track, but the cars were moved by horses.” It is earnestly contended that in view of the purpose for which the railroad was built and was used it is to be implied that the intention of the parties in making the reservation was, that said right of way was only to be used for transportation of coal from the Hampton coal mines, and that when coal should cease to be taken from said mines the right of way should revert to adjoining owners; therefore, at the date of the ordinance in question the right of way was no longer in existence and the plaintiff had no right to occupy it with a railway. The primary rule of construction applicable to a clause in a deed in the form of an exception or reservation is to gather the intention of the parties from the words by reading, not simply a single clause, but the entire context, and where the meaning is doubtful, by considering such circumstances as they are presumed to have considered: Clark v. Devoe, 124 N. Y. 120. True there is an ancient maxim that a deed or grant must be construed most strongly against the grantor, and it has been said, that this applies with equal force to a reservation or restriction in a deed whereby there is a withholding of something from the grant, but it is also true that the rule is to be applied only when, by the ordinary rules of construction, the instrument leaves the intention of the parties in doubt. If the language of the instrument is free from ambiguity, if it is sufficiently clear to define the character and extent of the reservation, the rule which resolves all doubt against the grantor, because the words of the deed are his, can have no application. The rule does not require the court to take up the construction of the instrument with a mind hostile to the right claimed by the grantor and apparently reserved in his deed. “ It may be conceded, when the language making an exception or reservation in a deed is doubtful, it should be construed more favorablyto the grantee. It is only when it is doubtful that this rule can be applied. It lias no place when the language is sufficiently clear to define the character and extent of the exception and reservation: ” Richardson v. Clements, 89 Pa. 503. In such a case it is not the province of the court to conjure up a doubt as to whether the grantor meant what his words mean in order to find an excuse or justification for introducing into the reservation conditions, qualifications or restrictions which the parties saw fit to omit. This would be, not to construe, but to reform, the instrument; Upon its face this deed is unambiguous and is not rendered ambiguous by being fairly construed in the light of the existing facts. The reservation was of a private way with the right to maintain a railroad thereon, which necessarily implied the right to transport cars upon it. The language of the deed is manifestly descriptive of the location of the railroad upon the grantor’s land, not of the use to be made of it. It cannot, by fair and reasonable intendment, be regarded as importing a condition or covenant that the railroad should be maintained throughout its entire length from the' Hampton coal mines to the Pennsylvania Railroad, or that it should be used for no other purpose than the transportation of coal. Even if it be assumed that the use made of the railroad at the time of the passage of the ordinance was different from that intended by the parties when the reservation was made, it does not necessarily follow that the right of way for a railroad was thereby forfeited. But, for the reasons above suggested, we are disposed to go further and to hold, that the owner of the right of way is not restricted by the reservation to such use of the railroad as was made of it at the date of the deed. We are, therefore, unable to adopt the conclusion that the right of way had ceased to exist by reason of any act or omission of the parties for whose benefit it was reserved, or by reason of the happening of any contingency, expressed in the deed or necessarily to be implied from the circumstances, upon which it was to be extinguished.

2. The proposition next to be considered is thus stated in the printed brief of the appellant’s counsel: “ As soon as the street ” (Walnut street) “ became lawfully located across the railway, the continuance of the railway and the operation of the cars thereover at once constituted a public nuisance.” In the consideration of this proposition it is to be noticed that the portion of Walnut street in question was not a highway at the date of the deed containing the reservation above considered, and that there is no evidence that it was ever laid out as a highway by proceedings in court or by ordinance of council. The only evidence bearing upon the subject is, that after his purchase McIntosh made and recorded a plan of lots upon which was plotted an extension of Walnut street fifty feet wide, and that thereafter the street thus plotted was used bj’ the public as a highway, but without disturbing the railroad track crossing it or the use of the same. The owners of the way continued to use the railroad as before. “ That the public may acquire the right to a highway by adverse use as such without the intervention of the municipal authorities is well settled. When the right is dependent upon adverse user alone, it does not become complete until the expiration of twenty-one years. When a dedication to public use, and the opening of a street to public travel by the owner, is followed by its actual use by the public as a highway, the right in the public may become complete and absolute within a much shorter period and without any affirmative act of acceptance by municipal authority: ” Commonwealth v. Llewellyn, 14 Pa. Superior Ct. 214. It is not claimed, at least there is no evidence to support such claim, that the public had acquired a right to a highway by adverse user. As the case stood prior to the passage of the paving ordinance, their right was derived from, and was limited by, the dedication made by the owner of the land. But we think it clear that nothing more is to be implied from this dedication by McIntosh than he had power to grant and nothing more is to be implied from such user by the public (which as we have seen was not hostile and exclusive but harmonious with the continued user of the railroad), than an acceptance of the dedication he had power to make. In other words, neither the dedication nor the acceptance implied from such user nor both together amounted in law to an appropriation of the easement reserved in the deed from Speer to McIntosh. If prior to the passage of the paving ordinance the owners of the railroad had sought to recover damages from the borough upon the theory of such appropriation, the answer probably would have been made, at least could have been made successfully, that their right to maintain and use the railroad had not been divested. The foregoing conclusions imply no exercise of the power of eminent domain by private persons, no permission by the borough authorities to use a public highway for a private purpose and no use of the street which was incompatible with any rights that the public or the borough had acquired or asserted. They imply simply that the owners of the way and the railroad upon it were entitled to enjoy the property rights, reserved in the deed from Speer to McIntosh until deprived thereof by due process of law.

3. It is urged further, that this railroad was, from its inception, nothing but a private railroad maintained to a point in connection with the Pennsylvania Railroad in direct violation of the 7th section of the Act of April 15, 1851, P. L. of 1852, p. 720. We will state the position taken by counsel in their own language : “ Doubtless while these parties maintained it upon their own property it would have been difficult for any person except the state to have any standing to raise the question, but just as soon as the public acquired rights upon the ground, as they did when Walnut street became a public highway, then the custodians of the public streets had a right to abate the nuisance, or its abatement could have been required by any citizen of the commonwealth through the form of an indictment in the criminal court.” To some extent the answer to this proposition has been foreshadowed. Unquestionably a person may build a railroad (by which we mean a road having rails of iron, steel or other material for the wheels of railroad cars to run upon) upon his own land or even upon the land of others with their consent, and there is nothing in the act of 1851 which can be construed as controvening that right. All that it forbids, even if the section be taken literally, is the connecting of a private railroad “ with any railroad authorized to be constructed by the laws of this state, with the Ohio and New York state lines, or with any railroad constructed, or to be constructed in the states of Ohio and New York.” Surely McIntosh could not be heard to say that the railroad as a whole was an unlawful thing because at a point more or less remote from the land conveyed to him it connected with a public railroad and therefore the reservation of the right to maintain and operate a railroad upon his land was void. It is not too much to say that this was not a matter which concerned him and therefore it could not affect the validity of the reservation. But if we are correct in holding that the public acquired by the dedication only such rights as the owner of the soil had power to give, their right to tear up the tracks was of no higher grade than his. We do not say that the owners of this way had no right to connect their railroad with the Pennsylvania Railroad. We have not deemed it necessary to put a construction on the section of the act of 1851 called to our attention. Even conceding all that can be contended for by the defendant, namely that it was unlawful to make such connection, the borough had no authority to redress the grievance by tearing up the tracks at the point where they crossed Walnut street.

i. The plaintiff alleged and offered to prove (thirteenth and fourteenth assignments) “that Walnut street was obstructed frequently by the cars standing on this right of way and that the holders of the right of way were notified to stop the blockade of the street, but still continued to keep it blockaded; and further that the right of way in contention is known as Railway alley, and is allowed by permission of the plaintiff to be filled with rubbish and waste material, and is a nuisance to the neighborhood.” It is not pretended that the railroad alley is a public highway or that the conditions above described are necessarily incident to the maintenance and operation of the railroad. Furthermore, as is frankly conceded by the plaintiff’s counsel, it would be entirely competent for the borough to pass an ordinance providing reasonable regulations for the protection of the crossing. Such being the case the offers of evidence referred to in these assignments were clearly irrelevant and were properly rejected. The fact that the railroad was negligently operated did not give the borough the right to destroy it as a nuisance per se. This seems too plain to warrant discussion.

5. The remaining proposition to be noticed is, that the tearing up of the tracks at the crossing must be regarded as an appropriation of the right of way in the exercise of the borough’s right of eminent domain, and that, as the statute has given the owners of the way an adequate remedy for the recovery of all damages they may have sustained by reason of such appropriation, they have no right to relay the railroad, and, therefore, are not entitled to relief in equity. That the borough had the power claimed and still has it may be conceded. Nothing in this opinion or decree is to be construed as denying the existence of this power or the borough’s right to exercise it in the future by appropriate action of its corporate officers and subject to its duty to make just compensation for property taken, injured or destroyed. The difficulty we find in sustaining the defendant’s proposition is, that the evidence fails to disclose the fact that the borough has appropriated the right of way by an act of eminent domain. The only corporate action affecting it directly or indirectly, of which there is any evidence, is the grading and paving ordinance. But this ordinance, granting its validity, neither in terms nor as a necessary effect of carrying it into execution involved an extinguishment of the right of way, but only a raising of the grade of the railroad to conform to the changed grade of the street.

In a proceeding under the statute for the assessment of damages occasioned by an act of eminent domain, the borough’s liability is for “ such injury only as is the direct, immediate and necessary or unavoidable consequence of the act of eminent domain itself, irrespective of care or negligence in the doing of it:” Stork v. Philadelphia, 195 Pa. 101; Chatham Street, 16 Pa. Superior Ct. 103. The court below has found that a crossing at the new grade is entirely feasible. To the extent, therefore, that the owners of the way sustained injury as a necessary or unavoidable consequence of the change of the grade of the street, they are entitled to recover damages in the mode provided by the statute, but in view of the above finding of fact we are unable to conclude that their damages could legally be assessed in such proceeding upon the theory that their right of way for a railroad was completely extinguished.

The first paragraph of the decree is modified and amended so as to read as follows: “ 1. That the defendant be enjoined and restrained from interfering with the said railroad siding and the tracks thereof, and from obstructing the plaintiff’s right of way, and from hindering or obstructing the plaintiff in the reconstruction of the same over and across the said Walnut street in said borough at the present grade of said street; without prejudice, however, to the right of the corporate officers of the borough to adopt and carry into effect such ordinance or ordinances as may be authorized by law.” The remaining clauses of the decree are unchanged. As thus modified and amended the decree is affirmed, the costs to be paid by the appellant.