McMinn v. Pittsb. R.

Pee Ctjexajm,

The plaintiff’s predecessor in title had released the right of way to the defendant company by a deed which contained the following clause:

“ And the said parties of the first part, for the consideration aforesaid, do for themselves, their heirs, executors, administrators and assigns, hereby release and forever quit-claim and discharge the said second party, and its successors and assigns, from all damages or injuries of any kind, now incurred or hereafter to accrue, for or by reason of the location, construction, maintenance, and operation of the said railroad of two or more tracks, with its appurtenances, through, upon, and over and under said described land.”

If the injury of which the plaintiff complains was the necessary result of the construction and maintenance of the road, it would be covered by the release and she could not recover. But the action was brought to recover damages for the negligence of the company in the construction of its road; the allegation being that the drain was insufficient to carry off the water, and also that the company allowed said drain to be obstructed so that the water would not flow through it. It needs no argument to show that a release of the right of way to a. railroad company, does not cover injuries resulting from the negligence of the company either in the construction, maintenance, or operation of the road. The cases of Hoffeditz v. Railway Co., 129 Pa. 264, and Updegrove v. Railroad Co., 132 Pa. 540, do not help the appellant. In the one first cited, the drain complained of was constructed prior to the execution of the release; and in the other, the claim for damages was made by a property owner on the lower side of the railroad embankment,, on account of the surface water having been collected and thrown from the culvert'upon his land below. We there said: “ These ditches, and this culvert, and this discharge of water are the result, the necessary result, of the construction of the road.”

Such is not the case here. If the culvert had been properly constructed and kept open, the injury of which the plaintiff complains would not have occurred. The property owner who releases the right of way does not subject himself,to any peril caused by the negligence of the company.

Judgment affirmed. C.