Chicago, Rock Island & Pacific Railway Co. v. Smith , 1884 Ill. LEXIS 1207 ( 1884 )

Mr. Justice Sheldon

delivered the opinion of the Court:

For the determination of this case we find that we need but to consider the one question of the effect of the deed of Burcky, made by him to the railroad company, although other questions have been urged before us.

The right of way upon which the railroad tracks in question are laid, was granted through lot 11, containing twenty acres,' by Burcky, the then owner of the whole of the lot, for the purpose of constructing a railroad upon it, and to be held and enjoyed forever, for' all the uses and purposes in any way connected with the construction, preservation, occupation and enjoyment of the railroad. So precisely was the grant for this very purpose, and none other, that there was express provision that cesser of use for such purpose should make the land granted, revert to the grantor. The casting of smoke, cinders, ashes, sparks of fire, and the shaking of the soil, (the thing complained of) upon lot 11, outside of the one hundred feet right of way, was a necessary incident of the operation of the railroad. Being such, and inseparable from the running of trains :upon the railroad, it was consented to, permitted and authorized by Burcky, for a compensation paid to him, by the deed which he made containing the grant. The deed did not, in- express terms, give such consent, permission and authority, but it did so by necessary imjilication, in that the acts complained of were the necessary incident and accompaniment of that which was granted by the deed, — they resulted necessarily in the carrying into effect the main grant. It is abundantly settled that what the law expressly authorizes to be done can not be complained of as a public nuisance, and we do not perceive how any more can a private nuisance .be predicated of that which the individual affected by it has, for value paid to him, consented to and authorized to be done.

As to the right to cast these substances complained of, upon plaintiff’s land, being given by implication by the Burcky deed, we find it laid down by Blackstone, 2 Com. 36 : “For when the law doth give anything to one, it giveth, impliedly, whatsoever is necessary for enjoying the same.” And in Touchstone, 89: “When anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or any such like words.” In Aiken v. Boardman, 2 Metc. 463, we find the rule thus expressed: “A grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted.” And see Matter of City of Buffalo, 68 N. Y. 172; Johnson v. Jordan, 2 Metc. 240.

We regard the deed from Burcky, for the public use of this railroad, as having the same effect upon the rights of the parties, with respect to lot 11, that a condemnation of the same land for such public use would have had, — the one being a voluntary conveyance made for a public use, and the other amounting to a statutory conveyance for such use. Had this right of way been acquired by condemnation, Burcky would have had made to him compensation for the value of the strip of land one hundred feet wide taken, and also an assessment of all the damages to the residue of lot 11 to result from the operation of the railroad. The rule is, that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, sec. 216, and cases cited; Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Ill. 142; Keithsburg and Eastern R. R. Co. v. Henry, 79 id. 290.

It follows, that had the railroad company condemned this right of way as against Burcky, who was the owner of the whole tract, no recovery could have been had for the damages here sued for. They would have been included in the assessment of" damages made on the condemnation, and whether in fact included or not, they would be conclusively presumed to have been included. The same result, we conceive, follows from Burcky’s voluntary conveyance of the right of way. It is to be presumed that the contingent damages to the residue of the lot which might arise from the prudent operation of the railroad, were taken into account in fixing the, price. (See Norris v. Vermont Central R. R. Co. 28 Vt. 99, and Conwell v. Railroad Co. 81 Ill. 233.) And herein would seem to be found sufficient answer to the position of appellee’s counsel that the whole effect of Burcky’s deed must be confined to the one hundred feet wide strip of land which it conveys by metes and bounds, and can have no extra-territorial operation, so as to give sanction to injuriously affecting any land of the grantor outside of the one hundred feet strip. In a case of condemnation there certainly would have followed the right to thus injuriously affect the residue of a tract of land of which a portion had been talien, without liability for damage, and the result from Burcky’s deed we hold to be the same.

The case is put by appellee’s counsel that a simple conveyance of land in fee simple, without any reference to its use, would not authorize the injuriously affecting of any other land, and it then is asked if it can be claimed that when a less estate than a fee is granted, a greater effect results than if a fee is granted. The fallacy appears obvious. A mere conveyance of a tract of land might not give to the grantee the right to make any use of it which would injuriously affect any other land, for the law would attach the same condition as in general exists with respect to the holding of all land,— that the owner shall so use it as not to produce injury to another; but in the case before us there is the grant for this very use itself which will injuriously affect other land, and for no other use. The deed permits and authorizes the injurious use for a consideration paid, thus making the difference between the cases supposed, in their application to this case, of the denial of an injurious use of land and the permitting of the injurious use.

With respect to the effect of a condemnation, which has been remarked upon, it is suggested by appellee’s counsel that in order to such effect the petition for condemnation should have stated its purposes fully and completely; that it should have described the number of the tracks, and that the company wished to permit other railroad companies to operate its tracks, etc. We do not understand that to have been necessary, or that more was required in this regard than that the petition should show that the land was needed for railroad purposes. But without respect to what may be necessary in a petition for condemnation, the language of this deed is broad enough to cover any manner of use for railroad purposes, and without limitation as to the company.

But it is said there are here increased uses of the right of way, in respect of which plaintiff may recover; that the deed of Burcky was made to the Chicago and Bock Island company, and that the present contention arises upon the result of the operation of the Chicago, Bock Island and Pacific Bailway Company, a corporation formed by uniting several other railroad companies, and that it could not have been within the intention of the grant to permit divers other railroad companies, under the license of the Chicago and Bock Island company, to enter upon this right of way and assert rights of easement in this land. Permission to the use by other companies, and consolidations with other companies, are both authorized by statute. In dealing with the corporation, Burcky must be held to have had in contemplation the possible exercise of such corporate rights, and to have contracted with reference thereto. As before observed, the language of the grant was most broad and unlimited. It was to hold and enjoy the right of way “forever, for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad.” We think all uses of the railroad for railroad purposes, however much increased, and by whomever, which are authorized by law, must be held to come within. the terms and intention of the grant. Burcky being the owner of the whole of lot 11 at the time of the making of his deed, and his deed being duly recorded, it was notice of the grantee’s rights to any subsequent purchaser of a portion of the lot; and such subsequent purchaser, or one acquiring a subsequent interest, would not, it is hardly necessary to remark, stand in any better situation with regard thereto than would Burcky himself had he continued to be the owner of the whole and were the plaintiff in the suit.

Several propositions of law were asked by both parties. It follows, from what has been said, that so far as they related to the question which has been considered, there was error in holding those asked by the plaintiff and in refusing those asked by the defendant.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment■ reversed.