41 Minn. 461 | Minn. | 1889
The plaintiff was incorporated under the general laws in 1886, and, as is alleged, possesses the usual powers and franchises of railway corporations, and is authorized to build and operate .a railway, with one or more tracks, from a point on the line of the St. Paul & Duluth Eailroad in the county of Pine, in township 42 north of range 20, extending thence to a point on the right bank of Kettle river, in the same township, with extensions to reach any or .all industries that are or may be hereafter established in said township, and localities adjoining the same, with all necessary and convenient tracks, side tracks, or track extensions, grounds, etc., and with the right to locate a branch southerly to another point on Kettle river, and another to the east line of the state, with all necessary side tracks, etc.; it being the declared purpose of the company to operate .such line or lines in connection with the St. Paul & Duluth Eailroad. Prior to the incorporation of the plaintiff, the Kettle Eiver Sandstone •Company had been incorporated, and had become possessed of the title in fee to the lands in township 42, which are particularly described in the complaint, and upon which are large and valuable deposits of merchantable sandstone, which, it is alleged, could not be •quarried and transported to market without the construction of a railroad to reach the same; and thereupon negotiations for such purpose
“This indenture, made and concluded this first day of November, 1887, by and between the Kettle Eiver Sandstone Company, a corporation existing in the state of Minnesota, party of the first part, and tbe Kettle Eiver Eailroad Company, also a corporation existing in said state, party of the second part, witnesseth:
“That whereas, the first party is the owner in fee-simple of the following real estate situate in the county of Pine and state of Minnesota, described as follows, to wit: The south-west quarter, and the south half of the north-west quarter, and the south-west quarter of the north-east quarter, and the north-west quarter of the southeast quarter, of section three, (3;) also the east half of the northwest quarter, and the east half of the south-west quarter, and the west half of the south-east quarter, and the south-east quarter of the north-east quarter, of section ten, (10;) and the north-west quarter of the north-east quarter, and the north-west quarter of the southeast quarter, and the west half of the south-west quarter, and the north-east quarter of the south-west quarter, and so much of the east half of the north-west quarter of section fifteen (15) as is not included or embraced in the town-site of Sandstone, as the same is surveyed and platted, and the plat thereof recorded in the office of the register of deeds of Pine county, — all in township forty-two (42) north, of range (20) west, according to the government survey thereof; upon which premises the said second party has, for the purpose of affording railroad facilities for the said first party, constructed its line of railroad, extending from a point of junction with the main line of the St. Paul & Duluth Eailroad Company, in section eighteen, (18,) in said township and range, in said county of Pine, to a point on or near the right bank of Kettle river, in said section ten, (10,) town and range aforesaid, with side tracks and other railroad structures in and upon the premises of the said first party, above described, so as to afford facilities for the transportation of sandstone from the quarries of said first party now opened: And whereas, the principal
“Now, therefore, the said first party, in consideration of the premises aforesaid, and of one dollar to it paid by the said second party, the receipt whereof is hereby*acknowledged, does, by these presents, grant, bargain, sell, and convey to said second party, its successors, lessees, and assigns, forever, so much of said real estate and premises as may be necessary and convenient for the maintenance and operation of its line of railroad as the same is now constructed, or as the said second party may hereafter, from time to time, desire to relocate and construct the same, with all the necessary or convenient buildings, depots, engine-houses, water-tanks, turn-tables, and other structures, with all necessary and convenient turn-outs, yards, and side tracks; and also to construct thereon, and forever maintain and operate, a line of railroad from some convenient point on its said main line, to be selected by said second party, running thence to a point on the west bank of Kettle river, in said section ten, (10,) with all such portions of said real estate as said second party, or its successors and assigns, may require for additional tracks, side tracks, depots, and standing ground, and other structures, at such points and localities as said second party or its successors may from time to time select or designate. And also grants to said second party, its. successors or assigns, the exclusive right of way, for railroad purposes, of such reasonable width as said second party may from time to time require and designate, so as to extend, operate, and use the same so as to reach all stone-quarries that may hereafter be opened or worked
“To have and to hold the above-granted premises, rights, and privileges to the said second party, its successors and assigns, forever; subject, however, to the right of the said first party, its successors, its lessees, and assigns, to quarry and remove the stone from said premises for transportation as aforesaid; and for that purpose the tracks of said second party on said premises, other than that of its main line, shall from time to time be adjusted and extended so as to enable said first party, and its lessees, successors, and assigns, to-quarry and remove stone from any of said premises for transportation, as aforesaid.
“And the said second party, for itself, its successors and assigns,, covenants with said first party, its successors, lessees, and assigns,, that it will from time to time, as said first party, or its successors or lessees, shall open any quarry or locality upon said premises herein-before described, and to which said first party shall properly grade and provide a suitable road-bed for such track or its extension, the said second party will, upon reasonable notice thereof, tie, iron, and operate such track or extension in connection with its main or its other tracks, and so from time to time, as such track extension is graded and required, will tie, iron, and operate the same as above provided, and will transport all stone so reached by its said tracks, when loaded upon its cars by said first party, its lessees or assigns, over its said line of railway, in connection with the railroad of the St. Paul & Duluth Bailroad Company; and for that purpose it will, upon request from time to time, and within a reasonable time, furnish to-said first party, its successors, lessees, and assigns, upon its said tracks, convenient for loading, all cars necessary for the transportation of such stone.
“ It is further agreed that, in case the said first party, or its successors, lessees, or assigns, shall construct suitable railroad track or
“And the said first party covenants, for itself and its successors, that all marketable stone hereafter to be quarried, removed, and transported by rail from the lands or premises hereinbefore first described, •shall be worked, quarried, or transported over and in connection with the tracks of the said second party, and that the tracks of the said second party shall be extended to the same as aforesaid, so as to secure to the said second party, and its successors and assigns, the exclusive right to transport the same upon the terms and conditions aforesaid.
It is further expressly and mutually agreed and covenanted that all and singular the grants and provisions hereinbefore set forth shall be and continue to be binding and obligatory upon the respective parties hereto, their respective successors, lessees, and assigns.”
This instrument, duly executed and acknowledged by both parties, was recorded in the office of the register of deeds of Pine county, where all the lands lie, on November 26,1887. And it also appears that the plaintiff has constructed its line of road from a point on the main line of the St. Paul & Duluth Railroad, through several sections, into and through several subdivisions of section ten, (10,) in township 42, with an extension and spur track in and through the stone-quarries referred to, and with proper side tracks, so as to accommodate the business thereof, and “transport all stone and other freights requiring transportation over its said railroad and its connections.” The plaintiff also alleges that it has fully kept the agreement on its part, and furnished all necessary cars and rolling stock, and transported’ the stone quarried on the premises, and has procured, “from its connection with the railroad of said St. Paul & Duluth Railroad Company, the perpetual right to transport, or have transported, all stone quarried or to be quarried upon said premises,
The main line of the defendant corporation, Eastern Railway Company, passes through the N. E. ¿ of section 10.
Subsequent to the record of the indenture above referred to, and on the 30th day of November, 1887, the sandstone company entered into an agreement for a lease of certain of the lands in question, owned by them in sections 10 and 15, with the defendants Ring & Tobin, for the term of 10 years, under which they were to work the quarries, and market stone quarried from the same, for a royalty to be paid to the sandstone company, and which lease was “made subject to all of the rights and privileges, and the said second parties (Ring & Tobin) hereto are entitled to all the benefits, which may accrue to either of the parties hereto by virtue of the contract” with the plaintiff, being the indenture referred to. The lease was recorded April 17, 1888. In the month of July, 1888, the Kettle River Sandstone Company conveyed the lands embracing the quarries in question, by deed of bargain and sale, to a corporation known as the “Northern Land Company.” And on the 8th day of September, 1888, the Kettle River Sandstone. Company, by an instrument under seal, released and discharged the lessees, Ring & Tobin, from all obligations and liabilities under the lease to them previously executed. A tripartite agreement bearing date August 20, 1888, was entered into between the Northern Land Company of the first part, defendants Ring & Tobin of the second part, and the defendant Eastern Railway Company of the third part. Under this agreement the Northern Land Company leased to Ring & Tobin lands in sections 10 and 15 in question, thereby giving them the exclusive right to occupy the leased premises, and to quarry and transport stone therefrom, and to operate necessary machinery thereon, for the business of quarrying stone and loading it upon cars. And the lessees, Ring & Tobin, on their part, agree that they will ship all stone to be trans
' The plaintiff obtained a temporary injunction on the ground that the defendants were threatening to grade and extend the line of the-Eastern Eailway over the tracks, premises, and property of the plaintiff, and to destroy the tracks, and divert and destroy its business, and render its line of no practical value.
The facts as above stated are substantially admitted by the defendants in their answer, and they admit that, at the commencement of this action, the Eastern Eailway Company was constructing a railroad from its main line into the said stone-quarries, upon the location, indicated by the map annexed to the answer, for the purpose of reaching the quarries in question, in order to transport over its road the products thereof; and that it has acquired the right of way therefor by deed from the Northern Land Company; and they deny that the-construction of their tracks has or will injure the tracks, side tracks, or property of the plaintiff, as alleged in the complaint; or that the-construction of the said road will in any manner hinder or interfere-with the said road of the plaintiff, except that, by legitimate competition, the Eastern Eailway Company expects to secure all or a portion of the traffic originating in the quarry; and they deny that the Eastern Eailway Company has graded or built its railroad upon or touching any property of the plaintiff. They allege that only a part of its. proposed line has as yet been built, and that, if built as proposed, it, will touch the track or property of the plaintiff at one point only, and.
1. The stipulation in the lease of the sandstone company to Eing & Tobin, which makes the lease subject to the contract between plaintiff and the sandstone company first above referred to, was binding only during the continuance of the lease. The plaintiff was not a party to it, and there was no privity between Eing & Tobin and the plaintiff. The lease might be terminated by their failure to comply with certain conditions therein specified, or by the voluntary act of the parties thereto, as was done. Eing & Tobin assumed no personal obligation or liability, and are not bound by the covenants in that contract, unless their present lessors, the Northern Land Company, are so bound. Scott v. McMillan, 76 N. Y. 141. And upon this point counsel do not appear to disagree.
2. It will be observed that the indenture or contract with the plaintiff, which was made, among other things, “to secure a right of way” for its road, assumes to grant “so much of said real estate and premises as may be necessary and convenient for the maintenance and operation of its line of railroad as now constructed, or as the said second party may hereafter, from time to time, desire to relocate and construct, with all necessary buildings, side tracks,” etc. And also “grants to said second party, its successors or assigns, the exclusive right of way, for railroad purposes, of such reasonable width as said second party may from time to time require and designate, * * *' so as to reach all stone-quarries that may hereafter be opened or worked at any point or place within the limits of the real estate hereinbefore described.” This grant, being in derogation of common right, should receive a strict construction; but we think, taking the several covenants together, it was manifestly the purpose of the parties to exclude other railways from access to the quarries, and from ■any share in the transportation of the stone quarried therein. But the plaintiff did not and could not, under the terms of its grant, acquire title to its right of way or other lands necessary for its business, until the same was actually selected, located, and designated. Prior to such location its grant was a mere “float,” and no title
But neither of these corporations can enter into a contract which courts will recognize as valid for such exclusive rights in the territory in question as the plaintiff claims. Neither could altogether exclude the other from the premises, or prevent land not already appropriated or shown to be required for its own corporate use from being taken or acquired in any lawful way by another corporation for a use which is recognized as public. Such contracts are against public policy, and void. Greenhood, Pub. Pol. 672, and cases cited; W. Va. Transportation Co. v. Ohio River Pipe-Line Co., 22 W. Va. 600, 626. It is insisted, however, by the plaintiff, that the proposed branch lines to these quarries, which are the property of private owners, are for the accommodation of private interests only, and not for a public use, and hence that the power of emi-, nent domain cannot be exercised; and that the contract must be/ deemed to relate to private interests only, and is not, therefore, sub'j ject to this objection. . But these corporations are each quasi public's corporations, and are, under their charters, authorized to exercise the'.
3. But the most important question in the case is whether the burden of the covenant in the deed of the sandstone company, whereby that company undertakes “that all marketable sandstone hereafter to be quarried, removed, or transported by rail from the lands or premises” described in the deed “shall be worked, quarried, or transported, over and in connection with the tracks of” the plaintiff, rests upon the grantees of the sandstone company. The parties, undoubtedly, have very clearly expressed their intention that this covenant should bind the assignees and successors in interest of the parties. No mere form of words, however, is sufficient for such purpose; but the nature of the covenant and its relation to the estate must be such that the law will permit the intention to be effectual. Masury v. Southworth, 9 Ohio St., 341, 348. Strictly speaking, at law there must be privity of estate existing between the parties when the covenant is made, and it must concern the land or estate. “The covenant must respect the thing granted or demised. When the thing to be done or omitted to be done concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant.” Bally v. Wells, 3 Wils. 25. It must inhere in or be attached to the land, or relate to its mode of occupation or enjoyment. And it runs with the land when either the liability to perform it or the right to take advantage of it passes to the assignee of the land. Savage v. Mason,
4. The Northern Land Company acquired its interest with notice of plaintiff’s rights; for it is a general rule that a purchaser is bound to inquire into the title of his vendor, and is affected with notice of any equities that appear upon the title. Leake, Cont. 1236; Hazlett v. Sinclair, 76 Ind. 488. And here the deed containing the stipulation and covenants in question had been duly recorded. It is therefore very earnestly contended by the plaintiff that, since these parties have acquired their title and interest with notice, equity will not permit them to evade the covenant in relation to the transportation, but will enforce it by injunction. There is a growing tendency to incorporate equitable doctrines with common-law rules, and, in equity, covenants relating to land, or its mode of use or enjoyment, are frequently enforced against subsequent grantees with notice, though there is no privity of estate, and the covenants do not strictly run with the land. Mr. Pomeroy (3 Eq. dur. § 1295) states the rule broadly as follows: “ Where, in a deed, the grantor covenants concerning the land or its use, restricting certain specified uses, subjecting it to easements, servitudes, or the like, and the land is afterwards conveyed or passes to one who has actual or constructive notice of the covenant, the grantee or purchaser will take the premises bound by the covenant, and will be compelled, in equity, either to specifi
The order appealed from is reversed, and the injunction directed to be dissolved as to the defendants Eing & Tobin, and modified
Note. A motion for reargument of this ease was denied October 25, 1889.