Kemp v. Pennsylvania R. R. , 32 W.N.C. 419 ( 1893 )

Opinion by

Mb.. Justice Green,

This is an action of trespass brought to recover damages for the obstruction of a private right of way over land formerly owned by the plaintiff, but which had been conveyed to the defendant company by the plaintiff several years before the alleged obstruction. The land over which the waj^ was claimed consisted of a strip 695 feet in length and 210 feet in width* and contained about three and one fifth acres. Apross the western end of the strip a lane, or way, extended and had been long in use, connecting the part of the farm lying to the east of the defendant’s railroad with the portion lying to the west of it, and this way was constantly used by the owners and tenants of this and the adjoining farms. The whole width of the way was twenty feet, one half of which was on the land of the plaintiff, and the other half on the land of the adjoining owner. The main line of the railroad was built many years before, when the land belonged to a prior owner, and two tracks were laid, and were in use during that time, both of which crossed the way in question. The damages for the original occupancy of the former owner’s land and way had been adjusted with him. There was a planked crossing between the rails where the lane crossed the track, which had been maintained by the defendant, and the use of the lane continued until and after the time when the plaintiff sold to the defendant the land now in question. On the 12th of December, 1882, the plaintiff executed and delivered to the defendant a paper, which contained the grant of a privilege to survey and construct on the strip of land in ques-turn a railroad through and upon the land on such route as the defendant might adopt, an agreement to sell and convey in fee simple to the defendant the whole of the strip of land in question, and also a covenant to release to the defendant all claims and demands for damages by reason of the taking and using of the land for the railroad, and its construction and operation. The consideration for the whole was to be five hundred dollars per acre. On April 4, 1883, the deed for tire land was executed and delivered to the defendant, and the consideration money, $1,597, was paid by the defendant to the plaintiff. Between 1888 and 1888 the defendant increased the number of its tracks to eight, all of which crossed the lane, and the planked crossing was extended so as to embrace all the tracks, and the plaintiff, by herself and her tenants, continued to use the lane as before. In the year 1888 the defendant increased the number of its tracks to twenty-two, and practically converted the land into a yard. They took up the plank crossing over the eight tracks and placed none upon the other tracks, so that the plaintiff could only go through the lane by driving over the rails as they were laid, without any planks or other material being filled in between the rails. This, of course, constituted a serious obstruction to the use of the lane, and to recover damages for this obstruction the present action of trespass was brought. The chief question in the case is, can such damages be recovered? The learned court below instructed the jury, upon the authority of Railroad v. Jones, 50 Pa. 417, that a recovery could be had, and that the measure of damages would be the difference in the value of the whole farm before and after the obstruction. If there were no other instrument but the deed to be considered, there would be great, and possibly controlling, force in the plaintiff’s contention, and in the ruling of the court below as to the right of recovery. For the way was visible, notorious and continuous, and was no doubt established over this part of the plaintiff’s farm for the benefit of the other parts. In such circumstances the rule prevails ordinarily that, “ where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude:” Cannon v. Boyd, 73 Pa. 179; Phillips v. Phillips, 48 Pa. 178; Zell’s Exrs. v. Universalist Society, 119 Pa. 390 ; Grace Church v. Dobbins, 153 Pa. 294, and many other cases.

But the difficulty in the present case arises upon the original contract of December 12, 1882. As already stated, that instrument contains a grant of the privilege to enter on the land, and survey and locate a railroad thereon, also an agreement to execute and deliver a deed in fee simple for the premises clear of all incumbrances, and lastly a release of all damages arising from the construction and the operation of the railroad. The operative words of the instrument upon these subjects are as follows : As to the grant of the privilege, “ Do for myself, my heirs, etc., . . . grant to the said company their successors and assigns the privilege of surveying, locating, constructing and using, by themselves, their- engineers, etc., ... a railroad upon such line or route therefor as may be adopted by said company, through, over and upon a certain tract or parcel of land belonging to me situate ” etc. As to the deed : “ And I do also for myself, my heirs, executors, administrators, and assigns hereby covenant and agree to execute and deliver to the said The Pennsylvania Railroad Company, their successors and assigns, a proper deed of conveyance in fee simple, clear of all incumbrances, and by good and satisfactory recorded title for the strip or piece of ground upon which said railroad shall be located ” etc. As to the release: “ And further to release the said company, their successors and assigns, from all claims and demands for damages which may accrue to me, my heirs, executors, administrators, or assigns, by reason of the taking and using of said land for said railroad, or by reason of the construction, maintaining and operating said railroad on and over said tract or parcel of land.”

This paper is an independent contract which embraces as one of its provisions the making and delivery of a deed for the land, and of course was not merged in the deed subsequently delivered: McGowan v. Bailey, 146 Pa. 572; Close v. Zell, 141 Pa. 390.

All the provisions of the contract must have their proper legal effect. What then is the legal meaning of the clause releasing the damages resulting from the laying of the railroad tracks on the land. It is a matter of course that the plaintiff knew perfectly well that the land was to be occupied for the purpose of laying railroad tracks upon it. The first clause is the express grant of the privilege to survey, locate and construct a railroad upon the land upon any route that the company might choose, without any limitation as to the number of tracks that might be put down, and without the slightest provision for the preservation of the right of way of the plaintiff over the ground or the tracks. The second clause provides for the absolute grant of the fee simple estate of the grantor, “ clear of all incumbrances,” and the third clause is a complete release “ from all claims and demands for damages which may accrue to me (plaintiff) my heirs, executors, administrators and assigns by reason of the taking and using of the said land for said railroad, or by reason of the construction, maintaining and operating said railroad on and over said tract or parcel of land.”

That is, if any damages should accrue to the plaintiff “ by reason of the taking and using of the said land for said railroad,” such damages were thereby released. This of course means the whole of the land, not a part of it, not the part outside of the way, but the whole of the land, because no restriction as to any part of the land is expressed. So also if any damages accrued to the plaintiff “ by reason of the construction, maintaining and operating said railroad on and over said tract or parcel of land,” such damages also are released by this provision of the contract. The whole tract is expressly covered by these words. The contract does not limit their operation to that part of the tract which was not covered by the way or road. It says nothing upon that subject, but uses words which unquestionably embrace the land covered by the way just as clearly and just as fully as any other part of the land. This being so, we have no warrant for saying judicially that the land covered by the way is not included. How can we do so ? Not by force of any words contained in the contract, because they arc precisely the other waj?; they expressly embrace the whole of the land, they have no limitation of any kind. Not by force of any implication from the words used, because such implication would be in direct hostility to the words used, and could not be in harmony with them, in any point of view. And the release is from “ all claims and demands for damages which majr accrue ” either for the taking and using of the land for the railroad, or for the construction and operation of the railroad “ on and over the said tract or parcel of land.” All claims for damages, not some claims, but all. If the railroad, when laid, obstructed that part of the land over which the plaintiff’s right of way extended, that would be a damage, and, therefore, any claim for such damage would be released by the positive terms of the contract. Indeed, it is the only damage that could be suffered by the plaintiff, because, as to all the rest of the land sold, the right to damages passed with the title to the fee. The land was not condemned but was purchased outright for a full price. In North and West Branch Railway Co. v. Swank, 105 Pa. 555, we said: “An agreement between a landowner and a railroad company to sell the latter a right of way across the premises of the former covers all damages of whatever sort suffered by the landowner for which he is legally entitled to compensation.” Hence it follows that, in airy event, there could be no recovery for damages on account of the railroad for any other part of the land except that covered by the way, and, by consequence, to give the release any practical operation, it would necessarily include damages for the obstruction of the way. But, however that may be, so far as the implications are concerned, the generality of the language used clearly embraces damages for the obstruction of the way, as that is a species of damage-resulting from the construction and operation of the railroad on the land in question.

It was thought by the learned court below that the case of R. R. Co. v. Jones, 50 Pa. 417, rules this case and the jury was so instructed. But an examination of that case shows that no such question arose there, as is presented on this-record. There was an old established road on the premises, leading to a sawmill, and it was plainly visible and in constant use. The simple question was whether when the company purchased a part of the property over which this road passed, they took it subject to the owner’s right to continue to use the road, and it was held that they did so .take it. There was no release of damages resulting from the location and use of the railroad as in this case, and no question as to the effect of such a release arose, or was considered, or decided. Moreover, there was an express reservation of the road out of the grant, and while the road did not exist by force of this reservation, the fact of the reservation was distinct notice to, and an agreement by, the purchaser that the road was not to be interfered with. It is needless to add that there was no reservation of that or any other kind in this case, but, on the other hand, there was a clear, distinct, and unqualified release of all damages that might accrue to the plaintiff by reason of the taking and using the land for a railroad, and also by reason of constructing and operating a railroad thereon. How the plaintiff can be permitted, after having thus distinctly sold and conveyed her right to all damages that might result from the railroad, without any limitation as to their kind or character, to bring an action for, and recover, the only damages that could result from the location, construction, and-use of a railroad on and over the land in question, we cannot see. It seems to us such ruling would be a clear denial of a solemnly acquired contract right of the purchaser for which the full consideration stipulated by the parties has been actually paid. The learned counsel for the appellee has not shown us any case in which such a right was held to remain after such a release. This feature is not found in any of the cases cited. On the contrary, this court has passed upon the effect of a release of damages in at least two cases which appear to be in harmony with the contention of the defendant in the present case. Thus in Hoffeditz v. South Penn. R. & M. Co., 129 Pa. 264, we held that where the owners of land, for a valuable consideration, released the company from all suits, claims, demands and damages by reason of its entry and the location and construction of its railroad and works connected therewith, such release is a bar to an action by a subsequent lessee of said owners, brought to recover damages for injuries caused by an inefficient culvert constructed prior to the execution of the release. The company acquired a right of way over the plaintiff’s land for their road, and a release was executed by the owners to the defendant “ of and from all suits, claims, demands and damages whatever, for, upon, or by reason of their entry upon and taking and occupying the above described narrow pieces or strips of laud and the location and construction thereon of the said railroad and works connected therewith.” The damages claimed were for the backing of water upon the plaintiff’s land, in consequence of an insufficient culvert, constructed by the railroad company to carry off the water under the embankment upon which the track was laid. The release was for all damages occasioned by the location, construction and use of the railroad, just as in the present case. The damage suffered was not from the railroad or the use of it, but from the backing of water upon the plaintiff’s land, because the defendant company had built a culvert which was insufficient to carry off the natural waterfall. Yet we held that, because the release was in general terms for all damages occurring by reason of the road, this kind of damage was included in its operation. Certainly that kind of injury and damage is more remote than obstruction caused by the mere laying of the rails. Some stress was laid upon the fact that the culvert and embankment were already built before the release was executed, but it was not the controlling feature of the case. The decision was based upon the generality of the language of the release, which included all damages resulting from the taking of the land and the construction and use of a railroad upon it. But if any consequence were to be attached to the prior existence of the culvert, in that case, it would be of no service to the plaintiff in this. For at the time her release was executed her way or road was already upon the land, and she knew that under the grant, deed and release, provided for by the original contract, the company could enter upon and occupy any part of the land, with their tracks, and if she meant that thejr should be excluded from the way, she should have so required at that time. Or if she meant that she should have damages for anjr subsequent obstruction of the way by the tracks, she should have reserved such a right, instead of granting away all her right to have damages without the least limitation. The damages from the obstruction of the tracks in this case are much more direct and more closely resulting from the construction of the road than they were in the case of Hoffeditz v. Railway Co., above cited. Yet we held them fully released.

In the case of Updegrove v. Railroad Co., 132 Pa. 540, the release of damages was in almost the very words of the release in the present case. There was but a slight verbal difference in an unimportant connection. This also was a case where the damage inflicted was the flooding of the plaintiff’s land with water, collected in a ditch and transmitted through a culvert under the defendant’s road to and upon the plaintiff’s land. In this case tlie ditch and the culvert were not constructed until after the release, but the court below instructed the jury that the plaintiff must be considered to have understood that the entire construction of the road was committed to the discretion of the company, and that he must abide by all the consequences of the exercise of that discretion. And although it was earnestly contended on behalf of the plaintiff that damages by the flooding of the plaintiff’s land could not be held to be covered by a release of damages for the construction of the road, the court below held that all damages were released, including those for the subsequent flooding of the land. On appeal to this court this view was sustained. We said: “ The defendant company obtained from the plaintiff a release for the right of way of eighty feet in width across said farm. The agreement further released the said company from all claims for damages by reason .of the taking and using of the land for said railroad, or by reason of the construction and maintenance of the said railroad on and over said tract of land. The plaintiff contended that about six acres of his land was repeatedly overflowed and rendered unfit for cultivation by reason of the construction of a ditch and culvert by the railroad company, which he alleged threw water upon his land, which would not otherwise have flowed there. The learned judge below instructed the jury that these ditches and this culvert, and this discharge of water are the result, the necessary result, of the construction of that road. We see no error in this. It is in direct line with the rulings of this court in the cases above cited. A release of the right of way to a railroad company would be a vain thing, if the company is to be subsequently subjected to litigation for every injury or damage resulting to the property by reason of the construction of the road. All these matters are supposed to be in the contemplation of the parties when the company pays its money for the right of way, and obtains a release therefor.”

How much more directly and forcibly does this reasoning apply to the case at bar where the obstruction to the plaintiff’s way was the natural, direct and necessary consequence of the construction of the defendant’s road. The learned counsel for the plaintiff very properly and candidly concedes that the company had the right to lay as many tracks as they ’pleased across the land purchased and that it was immaterial “ whether Mrs. Kemp knew that tracks were to' be constructed or not. She must have contemplated the additional difficulty of crossing them, which, according to the testimony of her own witnesses, would'have been relatively slight. Against a claim based on such inconvenience or for injuries to her remaining property, caused by the construction of the tracks, her release would be conclusive. But the complaint is that, owing to the manner in which the tracks have been laid, and owing to the fact that they are blocked with cars, and owing to the fact that the planked crossing has been taken up, she cannot get over the tracks at all.” We regard the foregoing as a practical concession of the whole subject of the controversy. It does the plaintiff no harm because it was a necessary concession to the undoubted facts of the case, and the manifest legal consequences arising therefrom. But the response that the plaintiff cannot get over the tracks at all in consequence of the manner in which the tracks are laid,'and therefore she can recover, is entirely untenable. There is no proof that they are laid in any other than the ordinary manner, and if being laid in that way they interfere with the plaintiff’s right of passage, that was'a consequence which she was bound to contemplate, and which she must be held to have actually contemplated when she executed her release. The company was not bound to preserve to her an unobstructed right of passage over their tracks, as against her release, and if she wished to have such a right it was her duty to have stipulated for it when she gave the release.

We are very clear that she cannot claim to recover damages for such an obstruction against the positive terms of her release of all damages, and we therefore think the learned court below erred in their answers to the defendant’s first, second and seventh points, and should have given a binding instruction to the jury to return a verdict for the defendant.

Judgment reversed.