Miller v. Holmes ( 1915 )

Watson, J.

The grant of the right of way in question is in words as follows: “The said Miller, and his heirs and assigns, are to have the right of way to and from the said premises hereby conveyed, so long as the buildings now on the remaining portion of the Union House lot now owned by us shall stand.” A temporary injunction was granted restraining the defendant “from moving any buildings or placing other obstructions across the right of way, or in any manner interfering with said right of way, until further order of court.” By the decree from which the appeal was taken, the temporary injunction “is made permanent. ’ ’

It is urged that by thus making the injunction permanent, the decree gives the orator greater rights than he takes under his deed, and is therefore erroneous. But this depends upon the force of the word permanent, as used therein. It is said in Richmond v. Smith, 101 Va. 161, 43 S. E. 345, that this word does not always embrace the idea of absolute perpetuity, or lasting forever. And in Texas & Pacific R. Co. v. City of Marshall, 136 U. S. 393, 34 L. ed. 385, 10 Sup. Ct. 846, the Court said it does not mean “forever,” or “lasting forever,” or “existing forever”; and that the language used is to be considered according to. the subject-matter of the contract. Applying the same rule here in considering the decree under view, we think the word permanent is to be construed with reference to the terms of the grant of the right of way, and that, when so construed, the deeree means the same as though it read, the temporary injunction “is made permanent within the life of the easement.”

Defendant says that during the pendency of the injunction, the orator has suffered his team to stand on land of defendant when being loaded and when waiting to be loaded, and that in these circumstances the orator should be decreed to pay a reasonable rental therefor. But the findings show that the burden upon defendant’s right has not been increased by anything the orator has done in this respect.

Decree affirmed as of the date of the appeal, and cause remanded.