44 Pa. Super. 316 | Pa. Super. Ct. | 1910
Opinion by
The Pittsburg & Castle Shannon Railroad Company was incorporated under the general railroad act of 1868
By a grant in writing, dated April 27, 1879, the predecessor in title of the present plaintiffs granted and conveyed to said company, “its successors and assigns, a right of way as the same is now located 60 ft. in width at grade and such additional width as is required and necessary in the construction of said road at deep cuttings and embankments to make 60 feet wide at grade. . . . The grant of right of way is for the location on which said R. road is now located and built being operated now. And I hereby for myself, my heirs and assigns, release the said company from any and all damages resulting to me by the location and construction of said railroad through said land and the right to conduct water by aqueducts and the right of making proper drains and to include all such other rights and privileges as are or may be provided for said Co. by law. Provided, however, that no further rights are hereby granted than said railroad company is now at present using and enjoying, to have and to hold the said rights and privileges to the use of said company as same shall be required for the use and purpose of said road in as full, perfect and ample a manner as may be required for that purpose.”
It will be perceived at a glance that this instrument does not exhibit the work either of one skilled in the use of the English language or of one familiar with the legal terms which accurately and clearly portray the nature, extent and character of a grant intended to be made. ' We
There are some considerations, however, important in the construction of this instrument which appear to be so plain that we are warranted in saying they must have been in the contemplation of the grantor. He was the owner' of a tract of land through which a line of railroad had been located and constructed. He was aware of the benefits and advantages that would result to him from such construction because he declares in the instrument that they furnish the valuable consideration which induced him to make the grant. It is clear that he intended to turn over to the exclusive possession of the grantee the strip of land described, to be used by it in the development and accomplishment of the purpose for which said companies are incorporated by the state.
If we confine our attention to that portion of the grant which deals exclusively with the right of way and nothing else and then look to the clause in the nature of a habendum, there would be no room for doubt that it was the intention of the grantor that the company should thereafter use and enjoy the strip of land in any and every proper way legitimately connected with and incident to the purpose of its creation. After having, by reasonably apt words, completed the main grant itself and described the location and extent of it, the grantor undertook to add a clause in the nature of a release of damages. Within the body of that clause there appears evidence of his intention to make some other specific grants apart from the primary one of the right of way itself, to wit, the right to conduct water by aqueducts and the right of making proper drains. This additional grant, it seems from the language used and its location in the instrument, was “to include all such other rights and privileges as are or may be provided for said Co. by law. Provided, however, that no further rights are hereby granted than said railroad company is now at present using and enjoying.”
If the proviso has ‘any meaning that can be fairly attributed to it which is not antagonistic to the main purpose of the instrument, the most we can say of it is that it was an attempt to restrict the operation of the clause which had already granted the right to conduct water, make proper drains, and all such other rights and privileges as are and may be provided by law. We can give it no wider significance without substantially impairing if not destroying a separate grant which had been completely made in the earlier part of the instrument.
We do not think we are called upon to discover a pre
Having thus briefly considered the grant, let us turn our attention for a moment to the things which the railroad company was undertaking to do at the time this bill was filed. It was, as we have intimated, engaged in the process of making its railroad of standard gauge. This was in nowise forbidden by the grant, but was a right possessed by the railroad company, the exercise of which, as we have said, was calculated to promote the main object contem
It was, however, not only increasing the gauge of its track to standard, but it was introducing a new system of motive power, to wit, electricity instead of steam. No part of the structure necessary to. accomplish this end trespassed upon the lands of the plaintiffs. Since the exhaustive opinion of Mr. Justice Brown, speaking for the Supreme Court in Howley v. Central Valley R. R. Co., 213 Pa. 36, it cannot be doubted that the respondent company was in the exercise of a clear right under its charter and under the general laws of the state in making such change. Indeed, as that opinion points out, it is not only a right but it is the duty of the company in the discharge of the obligation it owes to the state, “to make use of the latest and best inventions and appliances tending to promote the comfort and safety of the public. This is notably the case in the matter of spark arresters, and is equally applicable to couplings and other contrivances.”
In the light of these decisions we are unable to see how the aid of a chancellor could be successfully invoked to put such a construction upon the clause in the grant we have quoted as would make it operative to prevent a common carrier, a public servant, from discharging its manifest obligation to the state and its people, unless absolutely forced to such a conclusion by language so plain in its object, meaning and effect as to preclude the necessity for interpretation or construction. These considerations we agree will not warrant a court in rewriting a contract wherein the parties have plainly expressed their meaning. The case of Cubbage v. Pittsburg Coal Co., 216 Pa. 411, which the appellants contend largely rules this case, was expressly rested on the proposition we have last mentioned. But when the principles of construction and the broad considerations to which we have alluded are
The appellants still further complain that the respondent, in producing the current of electricity to operate its cars over its line, is producing more than its present needs require and that it is using that surplus, carried in conduits over its right of way, to bring cars of other affiliated lines loaded with passengers to its own terminus so that it may reap the profit of hauling them on its own lines over the right of way granted by the plaintiff. In this again we can see no ground for the interposition of a chancellor. The plaintiffs suffer no substantial injury thereby even if the most technical eye could discern a theoretical one. If the respondent has the right to use the land that was granted to it for every proper railroad purpose, it would not be easy to persuade a court of equity that it was guilty of any violation of the spirit or intent of the grant in thus taking practical and effective measures to multiply traffic over its own lines.
The same may be said of the only remaining ground of complaint. This is, that when carloads of passengers from affiliated lines are brought to the southern terminus of the respondent’s lines, it hauls the cars in which they are comfortably seated to its other terminus in the city of Pitts-burg instead of compelling them to change cars at the point where its own lines are reached.
But it is argued that when this grant was made it was not competent for a steam railroad to physically connect its tracks with those of a street railway (such power having been but recently given) and therefore such a situation could not be fairly said to have been contemplated by the parties to the grant. Conceding this to be true we have to observe that the physical connection is not made on the right of way embraced in the grant. The grantors therefore have no standing to complain of it. The only way in which they are affected by it is.that it results in
All of these various phases of the question were carefully considered by the learned trial judge, who in his opinion fairly shows that under any reasonable construction of the original grant that may be made, giving due effect to its primary and important objects and following well-established rules in construing its less important clauses, there appears no ground on which the plaintiffs’ bill ought to be sustained. It was therefore properly dismissed.
The decree is affirmed.