128 Mich. 184 | Mich. | 1901
The complainant company was organized under the union-depot act of 1881 (2 Comp. Laws, § 6356 et seq.). Its station grounds bordered on the Detroit river, and extended from Twelfth street westerly nearly to Eighteenth street, and were bounded on the northerly side by River street (sometimes called Woodbridge street). October 20, 1881, complainant made a lease to the Wabash, St. Louis & Pacific Railway Company of a portion of its station grounds lying next to the river, describing the portion leased by metós and bounds, and reserving to itself out of the description within said metes and bounds grounds for the erection of an elevator, and for a wharf on the river, and for tracks leading to the elevator and to the wharf, which tracks were to be used in common by said lessee and other railroad companies. It also leased to said railway company the right to use in common with other railroad companies the right of way from Eighteenth street to Delray. The lease provided for the construction by complainant of a passenger depot at Twelfth street, with tracks leading thereto, to be used in common by said lessee with other railroad companies. A small passenger depot was built, as provided in the lease, at Twelfth street, and from 1881 to 1889 no other railroad company leased or used the complainant’s grounds.
In 1887, and prior thereto, the Flint & Pere Marquette Railroad Company and the Detroit, Lansing & Northern Railroad Company, by arrangement with the Michigan
“ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees; such right of way to commence at the westerly*187 end of said grounds, and to curve northerly and easterly as soon as may be after the tracks enter the said grounds from the west, and running thence to Twelfth street, which said track shall be upon a line which may be designated by the engineers of the Flint & Pere Marquette Railroad Company and of the successors of the Wabash, St. Louis & Pacific Railway Company, consulting with and acting with the engineers of the Detroit, Lansing & Northern Railroad Company: Provided, that said double-track railroad, so far as it is constructed with embankment, shall be of the requisite width for a double-track road, and shall have perpendicular banks supported by walls; and, so far as the same is constructed as an elevated railroad, the ground under the same may be used by said parties of the second part and third part hereto for such use as may not interfere with the use of said track and right of way by all the parties interested therein.”
The complainant’s contention is that by this clause of the lease there was reserved to the complainant from the premises leased the right of way described therein, and that the complainant has a right to compensation for the use made of such right of way by defendants. The contention of defendants is that no right of way was reserved to complainant at all by said clause, but that said clause is a covenant between the lessor and the lessees to subject the premises leased to the use by railroad companies who should be lessees of the premises owned by complainant of a right of way by which such companies might reach the passenger depot contemplated to be built at Third street; and that complainant has no other right or interest under said clause than to enforce the observance of such covenant by the lessees and those claiming under such lessees.
The Fort Street Union Depot Company was organized on August 24th following the execution of the above contract. It filed its articles of incorporation, and during the years 1890, 1891, and 1892 acquired title to its station grounds, built a passenger station, and put down a double-track railway on the grounds so acquired by it. It also acquired a right of way to connect with the station grounds of the complainant. In addition to this, it ex
“If application be made by other railroads for accommodations in said station, the lessor will promptly notify each of the lessees thereof, and enable them to be heard on such application, and it will not make any arrangements for such accommodations with other railroads without the assent of all the lessees, as at present it seems that the lessees herein named will occupy said station to its full limit.”
At the time of the execution of this contract, Mr. Joy was the treasurer of the Fort Street Union Depot Company. The whole scheme for the organization of the company originated with him, and was carried forward by him. He arranged all details, made all the plans, and drafted all contracts in relation to the matter. At the same time he was president of the complainant company, and the largest stockholder therein, owning $500,000 of its capital stock.
The correspondence above referred to . commenced in 1887, and finally culminated in the two contracts above mentioned. There is not a suggestion in this entire correspondence, down to the execution of the lease of January 3, 1889, indicating any purpose of reserving to the complainant any right of way or control over any right of way. It is evident that the lease of January 3d would
In order to raise the money necessary to construct the depot building, a mortgage was given by the Fort Street Union Depot Company on its property. After describing the property by lots and blocks, the mortgage recites:
“Also all its yards, tracks, structures, passenger and freight stations, railroads, and especially its railroad leaving station grounds at Sixth street, and thence southwesterly to River street, near Eighth, and thence along said River street to near Twelfth street, and thence southwesterly, across the lands of the Detroit Union Railroad Depot & Station Company, to the connection with the railroad owned by said Depot & Station Company, extending through,the suburbs of Detroit to and across railroads extending from Detroit to Toledo,” etc.
This is a distinct statement in the mortgage that the Fort Street Union Depot Company owned the railroad on that date, January 1, 1891, including the right of way in question.
Mr. Crapo was called as a witness, and testified that the third clause of the lease was not a matter of discussion between himself and Mr. Joy; that, when they got to the matter of fixing the lease, “Mr. Joy suggested that the Flint & Pere Marquette and Detroit, Lansing & Northern roads, unless there was some clause, might interfere with the getting of the Wabash up to Third street.”
‘ ‘ It is understood and agreed by the parties hereto that this lease, as to the property described in the last preceding clause, is and shall be subject to a right of way across and over the same for a railroad, to be constructed in the most convenient form for a double track, and to be built' so as to enable all parties lessees of said station grounds to reach any passenger station which may be built for use of said lessees.”
“As comprehended by this treatise, a condition is a qualification or restriction annexed to a deed or devise, by virtue of which an estate is made to vest, to be enlarged or defeated upon the happening or not happening of a particular event, or the performance or nonperformance of a particular act. * * * Words declaratory of the consideration for and the purpose of the conveyance, and the limitation of the use of the property, or which direct or prohibit the performance of a particular act, do not, of themselves, render an estate conditional. * * * In the construction of a particular provision, the intention of the grantor or devisor governs. * * * The same words may be employed to create a covenant as to create a condition, and, if there is any doubt regarding .the intention of the grantor or devisor, courts will incline towards the former construction, for conditions which*192 tend to destroy estates are not favored, and are strictly construed. ‡ * Moreover, a condition is always the creation of a grantor or devisor; a covenant may be made by either a grantor or a grantee.”
In Smith v. Barrie, 56 Mich. 314 (22 N. W. 816, 56 Am. Rep. 391), it appears that a deed was made of lands' subject to a condition that, if the parties of the second part, their heirs or assigns, sold or kept for sale intoxicating liquors upon the premises, the estate granted should cease. It was said by this court:
“ It is perfectly lawful for parties to contract to abstain from the performance of acts proper and legal in themselves, when others with whom they contract may have an interest in their doing so, and in proper cases the contract may be made to assume the form of a condition. * * * Many cases of similar conditions are found in the books, and in none of them has enforcement, either by forfeiture of the estate or by injunction, been refused. The enforcement is subject to the rule that the law favors covenants, rather than conditions; and it inclines to construe the undertakings of parties strictly as against forfeiture.”
In Oampau v. Chene, 1 Mich. 400, a deed was made by John Baptiste Campau of land in which a provision was made to pay a debt, and to board, lodge, and clothe the grantor during his lifetime. Also in the deed the grantee promised and obligated himself to keep, board, and clothe decently, until she had reached the age of 18 years, Archange Campau. The suit was in equity, based upon these provisions. It was said by the court:
“The views we have expressed in regard to the covenants in the deed are illustrated and fully supported by the case of Pownal v. Taylor (decided in the Virginia court of appeals), 10 Leigh, 179 (34 Am. Dec. 725). The owner of a tract of land conveyed it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contained a covenant by the grantee for such maintenance and support, and declared that the land was to be held therefor, into whose hands soever it might come. But the deed did not state that it was upon condition that such maintenance and sup*193 port should be furnished, nor was there any clause providing for a re-entry by the grantor. Held, the provision for maintenance and support constituted merely a charge upon the estate, which might be enforced in equity; not a-condition, for breach of which the grantor could re-enter as of his former legal estate. In that as well as in this case there was a provision for a third person, and it was held that the third person (the sister) instantly acquired a beneficial interest, which she might have enforced by bill in equity. But, if the provision was a condition, then for ’ the breach the grantor might re-enter, defeat the estate, reinvest himself with his original title, and annihilate the vested interest which he had by his own solemn act conferred upon his sister. This cannot be, unless the grantor had expressly reserved the right to re-enter upon failure of the grantee to fulfill the purposes of the grant. These last remarks apply with full force to the provision for Archange in this deed.”
See, also, Martin v. Cook, 102 Mich. 267 (60 N. W. 679); Avery v. Railroad Co., 106 N. Y. 142 (12 N. E. 619)) Trustees of Columbia College v. Lynch, 70 N. Y. 440 (26 Am. Rep. 615); Parker v. Nightingale, 6 Allen, 341 (83 Am. Dec. 632); Schwoerer v. Market Ass’n, 99 Mass. 285.
We think the court below very properly dismissed complainant’s bill. That decree will be affirmed, with costs.