Dawson v. Western Maryland Railroad , 107 Md. 70 ( 1907 )

This is an appeal from a decree sustaining a demurrer, and dismissing the bill of complaint filed by the appellants. In 1835 Jonathan Rowland and wife and Kelly Thomas and wife conveyed to the Chesapeake and Ohio Canal Company a tract of land near Hancock, Washington County. The deed recites that, "Whereas the Chesapeake and Ohio Canal is intended to pass through the lands of the said Jonathan Rowland and Kelly Thomas, who have contracted and agreed to sell and convey to the said company such portion or quantity thereof as may be covered, used, occupied or required by the said canal, or any of its necessary works or appendages, and to carry into full effect the said contract and agreement," they were willing to execute the deed. It is then stated that "in consideration of the premises and in consideration also and upon condition that the said Chesapeake and Ohio Canal Company shall within the limits of the land hereinafter conveyed make, construct and establish a basin connected with the said canal, and also a roadway and road culvert leading from the turnpike road under the canal to the Potomac river, and also in consideration of the benefit which will result to them the said Jonathan and Kelly, as owners of said land, by cutting the said canal through and erecting the said work upon the said land and also in further consideration of the sum of one dollar," the grantors granted, etc., the tract of land, which is described by metes and bounds.

The Circuit Court for Washington County authorized Messrs. Hugh L. Bond, Jr., and Benjamin A. Richmond, as special trustees, to make sale of certain properties, rights, etc., of the canal company to the appellee, and under that authority they conveyed to it, by deed dated March 9th, 1905, a portion of the land mentioned in the Rowland deed, including a part of the basin which had been constructed by the Canal Company in pursuance of the provisions in the Rowland deed. The appellee constructed its railroad over and through the basin, and this bill was filed by the appellants who claimed by mesne conveyances the Rowland property, adjoining the basin. The bill prays (1) for specific performance; that the railroad company be decreed to restore the basin and maintain the same as it formerly existed, and (2) that it be enjoined from hindering, obstructing and interfering with the uses and benefits of the basin by the complainants, as they were enjoyed by them, and those under whom they claim, from the time of the construction of the basin, until the filling in of the same, and for other relief that we need not now mention.

It alleges that the canal company constructed the canal through the land conveyed by the Rowland deed, and for the benefit of the land retained by Rowland constructed a basin, connecting with and opening into the canal, and that Rowland erected upon the land retained by him, and along the basin, a large warehouse and mill about the year 1835, and from that time until the grievances complained of "the said basin was used by the successive owners of said warehouse and mill, as an outlet and highway for the shipping and receiving of merchandise bought and sold in the business conducted at said warehouse and mill; for the transporting of coal and other fuel used in supplying said mill and for such other useful and beneficial purposes incident to the business there carried on." It also alleges that the complainants became the owners of the warehouse and mill property, by virtue of certain conveyances referred to. It does not show what interest Kelly Thomas had in the property, or what became of his interest, but in 1842 the real estate of Jonathan Rowland was sold by a trustee, including what was described as "Lot No. 1, being the warehouse and ground attached to Jacob Snively, for the sum of $875."

The appellee demurred to the bill and assigned a number of reasons therefor. Without stating them in full, the main grounds relied on are (a) that the Rowland deed did not contain a covenant which runs with the land, or which created an easement in favor of the adjoining land, which passed as an appurtenance thereto unto the appellants, and (b) that the alleged convenant was ultra vires of the Canal Company. It may be well to first dispose of some questions about which there can be no serious controversy in this State.

1. The acceptance of a deed poll cannot have the effect in this State of binding a grantee as a covenantor. It is said in 8Am. Eng. Ency. of Law, 65, in speaking of the exceptions made in New York and New Jersey to the general rule, that in order that a provision be binding as a covenant it must be under the seal of the party by whom it is to be performed. "But this exception has been justly criticised as erroneous in principle, and will be found to be unsupported by the authority of any adjudged cases, except those rendered in the States above mentioned which have adopted them. It may safely be stated as the general rule, that mutual covenants cannot arise out of a deed poll." As the Canal Company neither signed nor sealed this deed, there would seem to be no doubt that under the authorities in this State there was no covenant by the Canal Company. 1 Poe, sec. 144; Stabler v. Cowman, 7 G. J. 284; W. Md. R.R. Co. v. Orendorff, 37 Md. 334; State, use c. v. Humbird,54 Md. 327.

2. In addition to what we have just said, it is clear there was no covenant running with the land. In Lynn v. Mt. Savage IronCo., 34 Md. 603, this Court adopted the first two resolutions inSpencer's case, 5 Coke 16, and the principles there announced are still accepted in this State as correct. What is spoken of by the appellants as "a covenant" in the Rowland deed referred to things not in esse, and there is nothing that could be construed either as a covenant with the grantors and theirassigns, or by the Canal Company for itself and its assigns. So whatever may be the rights of the appellants, they have no standing in Court on the theory that this is a covenant running with the land, and as the Lynn case, in our judgment, conclusively disposes of that question, we will not further discuss it.

3. Before passing on what we regard as the most important questions in the case, we will briefly consider the grounds on demurrer which rely on the provision in the deed for a basin being ultra vires. It will be conceded that the appellants have no right to some relief included in the prayers of their bill. For example, there is nothing in the deed which can be construed to bind the Canal Company to furnish the complainants with water for their mill and warehouse, or other improvements they have on their property adjoining the basin, but in passing on this subject, we must be careful not to confound the right to have the basin, with the method of using it. We can see no reason why the company could not have bound itself to make a basin along the canal, just as a railroad company can bind itself to erect a depot at a particular place, and there would seem to be no doubt about the latter. See 26 Am. Eng. Ency. of Law, 500; 10Ibid, 1079; 18 Ibid, 567. A basin connected with a canal may be just as necessary and useful for loading and unloading boats, as a station or siding is for a railroad. Unless the canal be wider at points where boats are to be loaded and unloaded than it ordinarily is, it might obstruct navigation to so use it. So, although it be conceded that some of the uses of the basin, made by the complainants and those under whom they claim, cannot be sustained, we are of the opinion that it was not ultravires for the Canal Company to contract or agree to construct a basin on part of the land acquired by it by the Rowland deed, as a part of the consideration of the land purchased.

4. Having reached the conclusions above announced, are the complainants entitled to any relief sought by this bill? In passing on that question, we must determine not only whether the railroad company, as assignee of the Canal Company, could have been held to such responsibility to the grantors as the Canal Company could have been under the Rowland deed, but also whether the appellants, as present owners of what we will call the warehouse property, are entitled to relief, even if the railroad company would have been liable to the original grantors. We are of the opinion that the first inquiry must be answered in the affirmative, notwithstanding there was no convenant running with the land, on the principle alluded to in Lynn's case, supra. After saying that the covenants then in question did not run with or adhere to the railroad of the Mt. Savage Iron Co., so as to bind it in the hands of the assignee, the Court said: "It is true, if any attempt were made by the assignee of the Mt. Savage Iron Company to use and apply the wharves and other improvements on the land of the complainants, in a manner and to a purpose different from that intended, a Court of equity would restrain such improper use and appropriation. In such case, the question would be, not whether the covenant ran with the land, but whether the party should be allowed to use and appropriate the land in a manner wholly at variance with the contract entered into by its assignor, and with notice of which it purchased. That is the principle of the case of Tulk v. Moxhay, 2 Phill. 774; but it is not involved in the present application."

In Newbold v. Peabody Heights Co., 70 Md. 501, JUDGE ALVEY quoted at length from Tulk v. Moxhay. After announcing the principle which is in substance stated in the Lynn case, LORD CHANCELLOR COTTENHAM went on to say: "Of course, the price would be affected by the covenant, and nothing could be more inequitable than that that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. That the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." JUDGE ALVEY, after quoting from Tulk v.Moxhay, added on page 502 of 70 Md.: "The principle thus clearly stated has been applied in a great variety of cases of restrictive covenants and agreements, both in the English and American Courts; and they all concur in holding that whoever purchases land upon which a former vendor or lessor has imposed an easement, charge or restriction in the manner of its use, such as would be enforced by a Court of equity as against his vendee or lessee, the party purchasing the land, with notice will take it subject to such easement, charge or restriction, however created."

Among other cases in this Court reflecting more or less upon the question are Thurston v. Minke, 32 Md. 487; Halle v.Newbold, 69 Md. 265; Peabody Heights Co. v. Willson,82 Md. 186; Summers v. Beeler, 90 Md. 474; Safe Deposit Co. v.Flaherty, 91 Md. 489. In Thurston v. Minke, this Court quoted with approval from Whitney v. Union R. Co., 11 Gray, 359, as follows: "When it appears, by a fair interpretation of the words of the grant, that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement in the property granted, for the benefit of the other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right shall be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective parcels of land." See also 7 Am. Eng. Dec. in Eq., 253, 254, where the question is discussed and many cases cited; 8 Am. Eng. Ency. of Law, 140, and 11Cyc., 1078, where many cases are cited, amongst othersDeMattos v. Gibson, 4 DeG. J. 276, which has been cited with approval by this Court.

Applying these principles to this case, it seems clear that the appellee would not be permitted to purchase the property from the Canal Company and destroy the use of the basin which that company agreed to make, construct and establish, as a part of the consideration to be paid for the property if it had notice, and the grantors were still the owners of the adjoining property. The Rowland deed shows on its face that the grantors had other land which would be benefited "by cutting the said canal through and creating the said work upon the said land," and it was made upon condition that the Canal Company should make the basin within the limits of the land conveyed. The Canal Company did make the basin, which according to the allegations of the bill was maintained and used by Rowland and those claiming under him for seventy years — until the appellee filled it up. The habendum clause of the Rowland deed shows that it was the intention of the parties that the use of the land conveyed was to continue as therein provided for. If the Canal Company could deprive their grantors of the right to use the basin, by conveying it to the appellee in 1905, why could it not have done so by a similar transfer the year after it was constructed? The appellee is making use of it "in a matter wholly at variance" with the condition of the deed under which the Canal Company acquired it.

5. But although we think a Court of equity could undoubtedly give relief to the original grantors, under such circumstances as we have stated, it does not follow that these complainants are entitled to relief. As we have already intimated they cannot require the appellee to restore the basin for some of the purposes set out in the bill. The original grantors did not by the terms of the deed have the right to use the basin as a source of water supply for the mill and warehouse, and the Canal Company had no power to make such a contract as that so far as we are informed by the record. Nor does the deed show any right in the grantors to build any part of their warehouse over the basin, as the advertisement of the trustee's sale of the Rowland property shows had been done. The most they could have claimed would have been the use of the basin for loading and unloading boats for shipment on the canal and such uses as were incident to that work.

But the real difficulty is that the grantors conveyed all their right, title, interest and estate in the parcel of land described, and the basin was constructed within the limits of the land so conveyed. They made no exception to any part of the land described, and did not in terms make any reservation of any part of it. The deed did not even expressly reserve the right to the grantors to use the basin, or make any provision as to where it should be constructed, excepting "within the limits of the land conveyed," although it may be implied they were to have the use of it — not however the exclusive use — and that it was intended to be so located as to give the grantors the benefit of it. There is nothing on the face of the deed to require the canal company to construct the basin next to the part of the grantors property, which they still retained. Perhaps it was then known that the towpath would be on the side of the land towards the river, and that the basin would therefore be on the side nearest to the turnpike, or they may have had some verbal understanding about the location of the basin, but the deed is silent on the subject — beyond what we have stated above. There is no attempted reservation in favor of the assigns of the grantors, and in stating the consideration it is said, "and also in consideration of the benefit which will result to them the said Jonathan andKelly, as owners of said land, by cutting the said land through and erecting the said work upon the said land."

The granting clause shows clearly that there was no exception contained in it, and there is none in any other part of the deed, excepting one not involved in this case. If there was anything attempted, excepting to convey the land subject to a condition subsequent, it was a reservation. In Schaidt v.Blaul, 66 Md. 141 and Herbert v. Pue, 72 Md. 307, the distinction between a reservation and an exception is pointed out. In both of those cases citations are made from Sheppard'sTouchstone, page 80, and Coke upon Littleton, 47A. As said in the latter, "Note a diversity between an exception (which is ever of part of the thing granted, and of a thing in esse) for whichexceptis, salvo, praeter, and the like, be apt words; and a reservation which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised." In Sheppard's Touchstone it is said of a reservation "it must be to the grantor, and not to a stranger to the deed," but if it was an attempt to reserve an easement there are other difficulties in the way. The deed was made in 1835, and at that time a grant of an interest in land which did not contain words of inheritance only conveyed a life estate to the grantee, unless it appeared "from the terms and provisions of the deed itself, the purposes it was designed to subserve, and the circumstances under which it was executed, that the intention was to convey an absolute estate." Merritt v. Disney, 48 Md. 344; Foos v. Scarf,55 Md. 301; Hofsass v. Mann, 74 Md. 400, and other cases that might be cited. There is nothing in this deed which would take it out of the general rule. When a covenant operated by way of reservation, and not by way of exception, words of inheritance were necessary to convey a fee simple title to an easement, if made prior to the statute which changed the common law. (1856).Ashcroft v. Eastern Railroad, 126 Mass. 196; Whitaker v.Brown, 46 Pa. St. 197; Engel v. Ayer, 85 Me. 448.

This principle is recognized by this Court in Halle v.Newbold, 69 Md. 265, where after referring to Thurston v.Minke, 32 Md. 487; Whitney v. Union R. Co., 11 Gray 359; and Clark v. Martin, 49 Pa. 289, it was said, "These cases very conclusively settle the law that a grantor may impose a restriction, in the nature of a servitude or easement, upon the land that he sells or leases, for the benefit of the land he still retains; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs andassigns of the grantor, it may be inforced by the assignee of the grantor against the assignee (with notice) of the grantee." The implication is that unless it is so imposed, it cannot be enforced by the assignee.

But there is still another difficulty in the way of the appellants. The theory of the bill as shown by the eighth paragraph is that an "easement was created on the lands mentioned and described in said deed for the benefit of the lands retained by the said Rowland; that these complainants as assigns of the said Rowland are entitled to the benefits of said easement over the lands of the defendants as assigns, with notice, of the Chesapeake and Ohio Canal Company." It has been settled by a long line of decisions in this State that our statute, requiring deeds conveying an estate of inheritance or free-hold, or any declaration or limitation of use, or any estate above seven years, to be executed, acknowledged and recorded as therein provided, is applicable to grants of or covenants for easements in land. Hays v. Richardson, 1 G. J. 366; Carter v.Harlan, 6 Md. 20; Long v. Buchanan, 27 Md. 516; Polk v.Reynolds, 31 Md. 112; Rayner v. Nugent, 60 Md. 519;Shipley v. Fink, 102 Md. 219. In Hays v. Richardson, the owner of the land had, under his hand and seal, authorized Richardson to open a road through it and to build, keep in repair and use a bridge over a branch in the field, over which the road would pass. The road and bridge were built, and the defendant obstructed the road. In an action on the case for obstructing the way, it was held by our predecessors that there could be no recovery because it was necessary that a grant of a right of wayde novo must be acknowledged and recorded according to our Acts of registration, and that the attempted grant amounted only to a revocable license. That was an action at law, but the principle has been announced in equity, as well as at law. In Partridge v. Church, 39 Md. 631, lot holders held certificates for lots in a cemetery, signed by the chairman of the trustees and the register, and this Court, through JUDGE ALVEY, said: "We think it clear that it (the certificate) conferred no title or estate in the soil; nor could it operate as a grant of an easement, because it was not under seal; nor was it acknowledged and recorded, so as to be effective to convey such an interest. Hays v. Richardson, 1 Gill Johns. 336. The right to an easement must be founded upon a grant by deed, or upon prescription, for it is a permanent interest in another's land, with a right of enjoyment; whereas a mere license is but an authority to do a particular act, or series of acts, upon another's land, without possessing any estate therein." The same principles were announced in Rayner v. Nugent, supra, and in the recent case of Shipley v. Fink, supra, the case ofHays v. Richardson, was again referred to with approval. This Court held in Shipley v. Fink, that the evidence in that case established a parol license to enjoy an easement in land, that the license was revocable and a conveyance of the land belonging to the licensor to a purchaser, without notice, revoked the license. In this case the most that can be claimed is that by the acceptance of the deed, the Canal Company impliedly contracted that the grantors should have an easement in the basin, but the deed was not signed, sealed or acknowledged by the Canal Company and hence did not grant an easement. As the grantors conveyed all their interest in the land they could only claim the easement under the implied parol agreement of the Canal Company, or on the theory of the reservation of an easement, and in either case it was necessary to have a deed, executed and recorded.

It is true that a Court of equity will not allow a licensor to withdraw his consent without making compensation to the licensee when the latter has expended money on the licensor's land, by reason of the license, but that doctrine cannot aid the appellants, even if it could have been applied if Rowland was still the interested party. The question here is whether such rights passed from Rowland through mesne conveyances to the appellants, as entitle them to the relief sought. We think it clear that they did not under the authorities cited. So if we consider the ground relied on in the bill, that there was an easement in Rowland in the basin, we find that none was granted, and as the Canal Company neither signed nor sealed the deed, but the grantors undertook to reserve the easement, it was on the part of the Canal Company a mere parol license to enjoy an easement in part of the land which was conveyed to it, and it did not pass to the assigns of Rowland.

Nor can the appellants get the benefit of the principle above stated that a Court of equity would give relief to Rowland against a purchaser, with notice, from the Canal Company. As establishing the basin was a part of the consideration for the deed, a Court of equity might protect the vendors and require compensation — in a proper case might require specific performance as the best, if not the only, way to secure what they were entitled to, but these appellants have no right to complain because the grantors were not paid what they were entitled to, if that be assumed.

If the provision in the deed be treated as a condition, it was a condition subsequent, and the property would revert to the heirs of the grantors, and not to the appellants, if the condition be broken. So however we regard it, we cannot see any ground upon which the appellants are entitled to relief under this bill. If they purchased the property bounding on the basin on the supposition that the purchase carried with it the right to use the basin, it is to be regretted, but we must construe the deed as we find it, and not as it might have been drawn, in order to pass rights in the basin to assignees of Rowland of his adjoining lands. It may be well to add that an examination of the cases which were relied on by the appellants to vest the rights in the assigns of Rowland will show that they were either brought by the original parties, such as Lynn's case, or the deeds or instruments under consideration expressly included the assigns, such as Tulk v. Moxhay, Whitney v. Union R. Co., Clark v.Martin, Halle v. Newbold, or there were peculiar grounds for equitable jurisdiction in behalf of those not parties to the deeds or other instruments, such as Newbold v. Peabody HeightsCo., Safe Deposit Co. v. Flaherty. See latter case on pages 499-500 as to when those not parties to a deed or contract may have the benefit of provisions in it.

It follows from what we have said that the decree must be affirmed.

Decree affirmed, the appellants to pay the costs, above andbelow.