Beedy v. Nypano Railroad

Opinion by

Mr. Justice Frazer,

Defendant owns and operates a railroad running through Crawford County and through plaintiff’s farm. In 1912, desiring to widen and straighten and otherwise improve its roadbed, defendant purchased from plaintiff a strip of land through his farm about 265 feet in width; the deed therefor, which was executed by plaintiff and his wife, contained, among other provisions, the following clause: “In case the wells and springs situate upon the premises of the first parties shall become useless or impaired by reason of the construction of any railroad on the lands hereby conveyed, then in such case the said party of the second part, for itself, its successors and assigns, agrees with the said parties of the first part, their heirs, executors, administrators and assigns, that it, the said party of the second part, its successors and assigns, shall and will immediately enter upon the remaining property of the first parties, and, at a point or points designated by them or either of them, drill new wells sufficient in number and size to furnish a sufficient quantity and a good quality of water to meet the needs and demands of the houses and barns of the parties of the first part.” At the time the deed was executed, the buildings on plaintiff’s farm .consisted of a fourteen-room dwelling, a tenant house, two barns and other outbuildings. The water was supplied from two wells and two springs. One well located at the dwelling house supplied water for general household use and was of excellent quality and of ample quantity for present and future needs of the house for domestic purposes. Another well was located in the barn, and this, with the two springs, furnished sufficient water for general farm and stock use.

In the construction of its new road-bed through plaintiff’s farm, defendant excavated to a depth of about seventy feet; this excavation coming within a few hundred feet of the well, which supplied water for domestic purposes, located at plaintiff’s dwelling house. This well was about twenty-one feet deep, and, as a result of defendant’s excavating, its source of supply of water, and also that of one of the springs, was cut off which not only impaired but rendered both useless. The quantity, of water at the well located in the barn and also at the other spring, has not been affected, and both continue to furnish sufficient water to supply the needs of plaintiff’s houses and barn; the quality of this water, however, is such as to render it generally unfit for household uses.

In the fall of 1912, at the request of plaintiff who had filed a bill in equity to compel the performance of the covenant above referred to, defendant entered upon plaintiff’s property and drilled a well to the depth of fifty-eight feet adjoining plaintiff’s dwelling, which failed to procure a sufficient quantity of water suitable for domestic use. In June, 1913, the present bill was filed, and in the spring of 1914, defendant again attempted to comply with the conditions of the deed by drilling to a depth of one hundred and fifty-eight feet the well which had been previously started without, however, securing an additional supply or better quality of water.

After hearing the testimony in the case, a decree was entered by the court below directing defendant to drill on plaintiff’s land at such points as might be designated by him such well or wells of such number and size as to furnish water in sufficient quantity and of good quality to meet the needs and demands of plaintiff’s houses. From this order defendant appealed and now contends that since the wells and springs on plaintiff’s farm were so grouped together in the covenant sued upon, and since they, as a group, still furnish sufficient water and of the same quality as was required by the plaintiff’s needs at the time the deed was executed, therefore there has been no breach of the covenant sued upon, and further that a court of equity is without jurisdiction of the matter.

Viewing the covenant in the light of the circumstances of the parties, there can be no doubt as to its construetion. The location of the new road was, of course, fixed before the deed was executed. The probable result of an excavation in such close proximity to the well located at plaintiff’s dwelling was anticipated, and it was clearly for the protection of that well in particular, which supplied practically the only pure drinking water, that the covenant was inserted. It would require a strained construction to say that, if at the time the covenant was made there was another well at some remote part of the farm producing water sufficient in both quantity and quality to render it suitable for domestic purposes, plaintiff should be obliged to transport the water of that well to his dwelling, and continue to do so as long as it was sufficient for the purpose notwithstanding the covenant on the part of defendant to drill new wells in sufficient number and size to furnish a proper quantity and quality of water for household use “in case the wells and springs situate upon the premises should become useless or impaired by reason of the construction of the railroad.” Such interpretation would render the covenant useless, because of the improbability of the excavation in any way affecting a well or spring located at some distance from the dwelling. The covenant in effect is one which requires that plaintiff’s water supply be not-substantially interfered with in any manner by the work done by defendant, and, if it is, that defendant will repair the damage as required under its covenant.

It is immaterial that the deed was not signed or sealed by defendant, the grantee. Having accepted the deed with all its terms and conditions and entered into possession, it took the property subject to the burden imposed upon it and is bound to perform the conditions therein stipulated. The general rule is that a deed poll when accepted by the grantee becomes the mutual act of the parties, the same as if signed by both: Blood v. Crew-Levick Co., 177 Pa. 606. A covenant of this nature is one running with the land: Kelly v. Nypano R. R. Co., 200 Pa. 229. Nevertheless if in this case it would not run with the land, the proceeding is between the original parties to the deed, and the question, therefore, becomes immaterial.

• If the language of the covenant be considered ambiguous, the parties themselves have put their own construction upon it by what has been done in the past. Two attempts have been made by defendant to supply a new well at plaintiff’s dwelling house. This is the best evidence of the intention of the parties, and the courts will adopt such construction: Coleman v. Grubb, 23 Pa. 393; Peoples Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22. Even though it might not be the one which from inspection of the writing alone would be accepted: Wright v. Monongahela Natural Gas Co., 2 Pa. Superior Ct. 219.

The Act of June 7, 1907, P. L. 440, 5 Purd. 5465, provides that when a bill in equity has been filed and defendant desires to question the jurisdiction of the court on the ground that the proceeding should be at law, he must do so by demurrer or answer. No demurrer was filed in the court below, nor does the answer object to the form of proceeding, or allege that equity has no jurisdiction. It is, therefore, unnecessary to discus^ this question.

The decree is affirmed at the cost of appellant.