34 N.J. Eq. 266 | N.J. | 1881
The opinion of the court was delivered by
In consequence of the voluntary withdrawal of several of the parties to this appeal, but two questions are left for solution by this court, and those questions are, Whether a certain written
This contract is drawn into controversy in this wise: George S. Coe, as trustee of certain bondholders of the New Jersey Midland Railway Company, is the original complainant in these proceedings, having filed his bill to foreclose a mortgage given to him by that company as a security of the bonds just mentioned. To that suit the Delaware, Lackawanna and Western Railroad Company, as the lessee of the Morris and Essex, were joined as a, party. This latter company, during the pendency of these proceedings, attempted to construct its line of road by force of the agreement just referred to, over the line of the road which it insists is the property of the Hudson Connecting Company, and such effort having been resisted, it filed its bill for a specific performance of the stipulation in question. To the claim thus ■set up, the complainant Coe, as trustee, denies the ownership of the Hudson Connecting Company to the line of railroad embraced in the agreement, and avers that this portion of the railroad track was' laid out, constructed and paid for by the New Jersey Midland, and consequently that it passed under the trust mortgage. The circumstances relating to the controversy with respect to the title to this portion of railroad track are multiform and numerous, and they will be found detailed with fullness and accuracy in the opinion read in that case by the chancellor. From the view which I shall express touching the questions involved, it will not be necessary for me to recapitulate such facts with minuteness. The following outline will suffice to render ■the grounds of the conclusions arrived at by me, perspicuous:
The trust mortgage held by the complainant is dated 1st of August, 1870, and at that time, and up to the spring of 1871,
That theory is that this respondent, the trustee, is not in a position to call this contract in question. If we assume the attitude of the respondent with respect to the ownership of this line of road here in dispute, and hold that such ownership resides in the Midland Railway Company, it is impossible to deny that in the acquisition of such roadway the Hudson Connecting Company was used as an agent by the managers of the first-
“The connecting company merely lent its charter powers of condemnation to the latter [the Midland] to be used if and when necessary to effectuate the purpose of the latter, in the execution of which it then was, and for a considerable length of time had been engaged—-the construction of its railroad from Bellman’s creek to West End. That was the end and aim of the project of using the connecting company’s charter, and the sum and substance of the whole matter.”
It will be observed that no one act in the progress of the transaction thus described could be done without presenting, in the most imposing form, this connecting company .as the builder of this line of road; and after carrying into effect such a project, and taking into its possession the track thus acquired, it is quite too late for the Midland railroad to attempt to repudiate a contract honestly entered into with the connecting railroad, in the orderly prosecution of such project.
And in such a respect as this it is an error to assume this respondent, as the mortgagee of the Midland, stands in a better position than his mortgagor. The fallacy of such a position arises from overlooking the circumstance that this mortgage, so far as we are now concerned, relates to a railroad track to be acquired and constructed after its execution. This particular road was not in contemplation, even, when this mortgage was given, and it is obvious that it must pass to the mortgagee with the burthens incident to its acquisition. All the property and rights acquired by the mortgagor enure to the benefit of the mortgagee; but nothing can be claimed by the latter beyond this.
The right to cross the Morris and Essex was a beneficial interest added to the value of the mortgaged premises; the equivalent for such right was the privilege of crossing such newly-built track by the former company. Such privileges and encumbrances were the usual and all but necessary arrangements incident to the laying of a railroad route, and they inseparably annex them
Having thus concluded that this agreement is legally efficacious to hold all parties in interest to its terms, the next inquiry is as to its meaning and legal effect.
As I have said, this contract first gives to the Hudson Connecting Company the right to cross the track of the Morris and Essex at a certain point; it then stipulates in these words:
“ Third. That if at any time hereafter the said parties of the first part [The Morris and Essex and the Delaware and Lackawanna] or either of them, shall desire to change the line and grade of the main line of the Morris and Essex railroad, or of the Boonton branch railroad, or both of them, as to make it necessary to cross the said railway of the said party of the second part, which, under this agreement, is to be constructed over the Morris and Essex railroad, or the railway which, under the said agreement of April 3d, 1872, had been constructed by the said party of the second part over the said Morris and Essex railroad, or over both of said railways, they, the said parties of the first part, or either of them, shall have the right, without charge, to cross either or both of said railways of the said party of the second part, over, under or at grade, and the said parties of the first part, or either of them, may occupy and use without charge so much of the lands of the said party of the second part as may be necessary for that purpose.”
By force of these stipulations, the Delaware, Lackawanna and Western Railroad Company claims the right to cross the track in. question at a point where it runs through á piece of land about eighteen hundred feet long, used for terminal purposes and as a drill-yard. The question is, whether such a right has been conferred upon this company by virtue of this contract, the substance of which has been above quoted.
In my opinion, such a claim is a most extravagant one. I find such a signification neither within the literal terms of the agreement, nor sustained by any reasonable supposition as to the intention of the parties. The contract, in words, gives the right “ without charge, to cross either or both of said railways, and to occupy and use, without charge, so much of the lands of the
Neither party should be allowed costs in either court.