delivered the opinion of the court.
(1) A preliminary question is made with regard to the rights of the Rock Island Company as the successor of the Chicago Company under the contract of February 15, 1888. By art. Ill, § 9, of this contract it was provided that it should “ attach to and run with the railways of the respective parties during the corporate existence of each, and of all extensions of such existence, by renewal or othérwise, and shall be binding upon the lessees,, assigns, grantees and successors of each, during the continuance of their several corporate existences; provided, however, that the Chicago Company, can assign its interests in this contract only by sale, leаse of consolidation of its own property.” The original companies, of which the Rock Island Company claims to be the successor, appear to have been the St. Joseph and Iowa Railroad Company, a Missouri corporation, and the Chicago, Kansas and Nebraska Railway Company, a Kansas corporation. On May 15,. 1886, the latter company leased its property and franchises to the former, which entered into possession under such lease, -which is still in force. On June 13, 1888, after this contract was made, the Chicago, Kansas and Nebraska Company and the Chicago, Rock Island and Colorado Compаny were consolidated under the name of the Chicago, Kansas and' Nebraska Railway Company, which consolidated corporation is admitted by the answer to have succeeded to and become vested -with all the property and property rights, and all the corporate-rights, powers, franchises and privileges of the-said two constituent companies, including the contract between the Chicago Company and the defendant, and thereby entered into possession and enjoyment of the same.
It is unnecessary to set forth at length the numerous steps by way of assignments, leases and consolidations by which
(2) The most important question in this case relates to the proper construction of art. 1, § 1, wherein the Denver Company “ lets the Chicago Company into the full, equal, joint and perpetual possession and use of all its tracks, buildings, stations, sidings and switches, on and along its line of railway, between and including Denver and South Pueblo, excluding its shops at Burnham, meaning and intending hereby to include in the description aforesaid all and every portion of its railway and appurtenant property between and at the points aforesaid, and all improvements and betterments thereof, and additions thereto, which may be jointly used by the parties, as hereinafter provided.”' The question is whether this general language is controlled or limited by the facts existing at the time the contraсt was executed, or by the subsequent provisions of the contract itself. If thjs be -in fact a lease, without qualification, of the entire róad and appurtenant property between Denver and South Pueblo, then the Rock Island Company has a right to make use of as much or as little as it pleases, and to introduce its trains upon the tracks of the Denver Company wherever it may choose to do so. It may not only make use of the terminal facilities at Denver for its traffic over the Union Pacific, but it may contract for trackage over any road running to Denver, Pueblo, or the intermediate stations, and demand the use of the defendant’s terminаls for its entire'business over such roads.
.There can be no doubt whatever of the general proposition that, in the interpretation of any particular clause of a contract, the court is not only at liberty, but required, to examine the entire contract, and may also consider the relations of the parties, their connection with the subject matter of the contract, and the circumstances under which it was signed. Prior to the execution of this contract, the Chicago Company had determined to construct a road into the State of Colorado
Indeed, the contract from beginning to end is full of provisions which indicate that the minds of the parties met only
By art. Ill, § 4, the Chicago Company agrees to do no business as a carrier of persons or property between Denver and Colorado Springs, or between intermediate stations between. Colorado Springs and Pueblo, or between any such intermediate stations and Denver, Colorado Springs or Pueblo; but it was to have the right “to transport persons and property between stations on its railway and connecting lines, and all pоints between and including Denver and South Pueblo: Provided, however, that if the Chicago Company shall at any time acquire by purchase, construction or otherwise, a railway extending not less than fifty miles from Pueblo, it shall have the right to transport persons and property- between any point on such line and Denver.” There is certainly an inference from this proviso that it was not. contemplated that the Chicago Company should acquire similar rights upon railways from other points than Pueblo. In addition to. this, the situation and plan of the Denver station grounds show that, while they possess every facility for the admission of trains from the southward, their connection with the Union Pacific to the northward is by two tracks, one of which is wholly used for the transfer of freight cars tp other systems of railways, the other only making direct connection with the station of the Union Pacific —an obviously inadequate provision for a large and continuous traffic. Taking all the-facts of this contract together, we regard it as quite clear that it was never intended to grant the use of terminal facilities except as. appurtenant to the use of the road itself. Indeed, where a road is leased with its terminal facilities the implication is strong that it was the lease of the road which induced the lease of the terminals, and the contract should not be construed as importing a separate Tease of such terminals without clear language to that effect.
Upon the whole, we think the defendant’s construction of this contract is the correct one, and the decree of the court below in that particular should be affirmed.
(3) . A question of some importance arises with regard to the proper construction of the exception, in the general granting clause, of the “ shops at Burnham,” the plaintiff claiming generally that the restriction applies only to the shop buildings and the land upon which they stand, and the defendant insisting that it includes all that portion of its property at Burnham west of the main line, consisting of about sixty acres purchased and mostly used for the-construction, repairing and equipment of its rolling stock. The specific parcels of such property in dispute are, (a) about twenty acres south of the shop grounds proper, known as the Bailey tract, lying mostly to' the west of the main line, which runs through the tract; (J)'about six acres to the northward of the shops, and known as the Burlingame tract; (o) certain coach tracks within the yard occupied by the machine shops, and used by both parties for cleaning their passenger coaches; (d) a certain track known as the “ wye ” on the Bailey tract, and used for reversing the direction of the trains.
In ascertaining the scope of this exception little aid can be derived from the illustrations employed by counsel upon both sides, since the meaning of the reservation must be determined in every case by the particular facts of such case. Bor instance, if the vendor of a city lot should, in a deed of such lot, reserve to.himself a building standing thereon, it would be manifest that he reserved only the right to remove such building, since a different construction would be destructive of the grant. On the other hand, if a testator devised to his sons a large farm, reserving to his widow the right to occupy the farm-house- during her life, it might, and probably would, be held to include the out-buildings and gardens, or messuage.
. The grant in this case was of .the
“
possession and use of all its tracks, buildings, stations, sidings and switches on and along its line of railway between and including Denver and South Pueblo, . . . intending hereby to include in the description aforesaid all and every portion of its railway and appurtenant property between and at the. points aforesaid,” etc. lío specific mention is here made of rpal estate, and while, as we have had recent occasion to hold,
New Orleans Pacific Railway
v.
Parker, ante,
42, land is not ordinarily appurtenant to other land, much less to personal property, there can be no doubt that, under, this, grant, all land occupied by the stations, tracks, water tanks, etc., and all other land habitually used in the daily operation of the road, would pass as appurtenant to the railway. The very fact that the grant is so liberal in its terms is an indication that the exception also should not be narrowly construed. It is evident that an interpretation which would limit it to the buildings actually used for mechanical purposes would fail to express the intention of the parties with regard to this exception, since repairs are frequently made to cars while standing in the yards, аnd' track room must be provided for cars while they are waiting their turn in the shops, as well as -round-houses for the accommodation of locomotives. As the Denver Company owned and operated some fifteen hundred miles of railway, and had its principal shops for making and repairing its rolling stock, and for storing its cars, supplies and materials for its whole line of road, at Durnham, it is manifest that extensive build--ings, grounds, tracks and other appliances would be required for such- purposes. The amount originally purchase»! seems'
With regard to the Bailey and Burlingame tracts, so called,< it is at least doubtful whether they would have passed without the exception, as an appurtenance to the tracks, buildings, stations, sidings and switches, and other property of the road; unless, at least, they were occupied by tracks used in the operation of the road. . Indeed,'they are appurtenant rather to,the shops than to the railway-.1 It is clear they ought not. to be detached from the shop grounds proper, with which they are conneсted, for which they tv ere purchased, and of which they form a part. If these grounds were put to a separate use, distinct from the.other shop grounds — a usé connected with the customary operation of the road — a different question might arise.
There was no error in the decree, providing that the plaintiff should not be excluded from the “ wye ” track at. Burnham, for the turning of its engines, cars and trains, so long as it should continue to pay, for the use thereof, interest upon the cost of its construction, according to the arrangement made at the meeting of February 13, 1890, until'the defendant should provide at Denver another similar track for the same purрose.
(4) Has the plaintiff a right, under the contract, to put into the Denver terminals its own switch engines, switching crews, and other employés devoted to its exclusive service? Soon after the parties entered upon the performance of this contract, a controversy arose between them respecting'the employment of switching crews in the several yards of the defendant company. The plaintiff, believing that it could perform such service with its own engines and employés more economically than it was being done by the defendant, notified the defendant that it would, without unnecessary delay, place therein its own engines, agents and employés, who would perform such labor. Defendant promptly replied that it would not permit the employment of such agents, etc., and that, if any attempt were made by plaintiff to employ them, they would be ejected by force; assigning as a reason for such action that such operation of the yards would produce confusion and be attended by danger; and that the proximity of employés engaged by another company to those in its own service would create discontent and trouble between it and its own employés. Defendant subsequently consented to the employment by the plaintiff of certain classes of laborers in its yards at South' Pueblo, but has pei^isted in its threat to exclude any one who should be introduced into the yard at Denver. Defendant justified its action upon the ground that such exclusive employment and service were not provided for by the contract, were in violation of its terms, and could not be permitted by reason of the danger to life and property, etc.
The contract is silent upon this point. _ The Denver Company does, however, agree (art. I, § 1) to let the Chicаgo Company into the full, equal,- joint and perpetual' possession ■ and .use of its property, and is bound to do so wherever a joint operation of such property is practicable. ■ There is also a provision (art. II, § 2, sub. 6) for the payment by the Chicago Company, as part of the consideration, of “ an amount equal to a proportionate share of the expenses actually incurred in paying
This controversy with regard to the employment of switching crews was made the subject of a correspondence between the managers of the two companies early in 1889. On February 16, Mr. Smith, the manager of the defendant company, addressed the president of the plaintiff a letter in which he stated the defendant’s construction of certain-provisions of the contract, upon which he had taken the advice of its counsel, who, he says, in answer to a query of his, gave it as, his opinion that the O. K. & FT. Co. had the right, if it desired to do so, to do work- in the Colorado Springs yards with its switch engines, and to do all the necessary switching for that company with its own engines; but that this could only be done under the direction and instructions of the superintendent or other designated officers of the defendant. “ The same rule,” said he, “ applies to this case, as stated in query one, that all movement of engines, trains and cars, must be under the sole direction of the superintendent or designated officer of the ” defendant. “ There can be no divided authority with regard to the movement of engines, trains and cars. In this respect the yards at Pueblo, Colorado Springs atid Denver are subject to the same principle.”
In reply to this letter, under date of February 22, Mr. Cable, plaintiff’s president, said that they acted on the theory “ that the movement of trains on your tracks must be under the direction of your operating officers; that operations in the yards must conform to reasonable yard rules, and that in all
(6) Defendant also assigns .as error that portion of the decree adjudging that defendant should set apart a track at Denver on which the plaintiff should have the right to clean its cars, “ and if. no existing track can be conveniently devoted to that purpose, the defendant shall construct and equip a track therefor, at the joint expense of the parties, plaintiff and defendant.” While the contract makes no express mention of car cleaning facilities, it is an obvious and necessary incident to the operation of railway trains; somehow and by somebody it must be done, and it is difficult to see, why, if the plaintiff is to be admitted to the joint possession and. use of the entire railway and its appurtenant property, it can be excluded from such car cleaning facilities as the defendant possesses. If defendant desires to exclude plaintiff- from such facilities as it-possesses at the Burnham shops, it should provide them at some other convenient point. • Unless a different arrangement can -be made, it is proper that the actual work of cleaning cars should be done by the plaintiff with utensils provided by it; bu.t the traсk facilities must be furnished by the defendant. If, however, the plaintiff is not satisfied with the facilities offered for. this purpose, and desires further facilities and conveniences which do not now exist, jt should proceed under art. Ill,' § 1, of the contract, by giving notice to the defendant of its desire, and if thg defendant, within thirty days after receiving such notice, neglects or refuses to construct such facilities, the plaintiff may construct the same and have the right tó use and remove them during the term of the contract. The 5th paragraph of the decree should be modified to this*extent.
(6) Plaintiff also assigns as' error the omissipn of the court to provide in' its decree that the defеndant should discharge
This disposes of all the errors assigned by counsel, and with
Affirmed, cmd the costs im, this courrt divided.