111 Ill. 437 | Ill. | 1884
delivered the opinion of the Court:
In this case no question is made in respect to the construction or effect of the exception of the two hundred feet strip ft for a right of way. As to that; no title or other interest ever passed by the deed; but the controversy relates to the meaning and effect of the reservation of “all the gravel on and in said land and premises,” and “the right to dig for gravel on any part of said lands, * * * with a view of opening gravel pits, one or more, ” and the right to remove such gravel. If the plaintiff’s ancestor had expressly granted the rights and privileges intended to be reserved by the railroad company, there would be but little difficulty in determining the rights of defendant; and no reason is perceived why this reservation should not be construed like a grant, in the light of the facts and circumstances under which the parties acted.
It appears from the evidence that many years ago the defendant discovered a bed of gravel upon the land described in the declaration, and by digging “wells,” as the witnesses call them, in different places, found a large quantity of gravel on the land. To obtain a right of way, and control of the gravel for ballasting on its road bed, the railway company purchased the premises, but having no other use for the land, in 1866 conveyed the same, with the exceptions and reservations in the deed, to Harrison Noble, who then owned the adjoining lands. The greater part of this tract was agricultural or pasture land, without any gravel, the gravel being in the main on one side of the same. The gravel is found six or eight feet beneath the surface of the earth, and is mixed, more or less, 'with sand, capable of being separated by sifting; but to so separate them would render the right to remove the gravel entirely worthless. There was alijo evidence that in central Illinois, where this land lies,-there is a well recognized distinction between a sand bank and a gravel pit, and that there are no deposits in this part of the State of pure sand or pure gravel, and that when the sand predominates, so that the gravel can readily be screened from it, the place of deposit is called a sand bank; and when the greater part of the mass is too coarse for mortar or building purposes, it is called a gravel bed.
Under these circumstances, the right to take and remove this gravel from the land for the use of the road, whether derived by grant or reservation, was a valuable privilege to the railroad company, and judging from the language of the reservation in the deed, in the light of the attendant facts and circumstances, it will be presumed that the company intended not to part with this privilege, but to retain its rights in this respect as they existed at the time of making the conveyance. The intention is manifest that the company thereafter was to have the same right it before that time had to enter upon the premises, and remove therefrom the gravel found in gravel pits, doing no unnecessary damage to the land. Under this reservation the company had no right to remove sand alone, or take from sand banks proper, but might take gravel from gravel pits, notwithstanding there was a mixture of sand in it. The reservation must be so construed as to give a practical right, and not so as to render it worthless or unavailing. The reservation is broad enough to include the right to remove all gravel deposits from the land, or deposits of which the greater part is gravel, or such as are known as “gravel” according to the common acceptation of that word, or'such as is usually employed by railroad companies for ballasting; and the company, before removing such gravel, is not required to sift the sand from it, or separate small veins and pockets of sand found in gravel pits, from the same.
It is urged that the circuit court erred in giving instructions for the defendant, and in refusing instructions for the plaintiff.
The fourth of defendant’s instructions told the jury that if the plaintiff, knowingly, either by himself or servants, assisted in removing and carrying away the sand, he can not recover. The seventh instruction for the plaintiff, which was refused, told the jury that if the defendant hired the plaintiff to work for it in and about plowing up the gravel and sand in question, that it did not ask his opinion as to its rights or his consent to its acts, and that it was entirely uninfluenced by the fact that he hired to it, then no license could be implied from such hiring and work.
There was evidence on the trial that the plaintiff furnished the defendant part of the time with two teams, and afterwards with one team, and hands, to use the same about the gravel pit, which were used in plowing and scraping off the earth to reach the gravel, and also in plowing in the gravel. His teams also plowed into the sand in the gravel pit, and Liscomb testified that he saw the plaintiff driving his team there once, and that he plowed up sand and gravel together. John O’Connor testified: “We were not forbidden to take what little sand was mixed up with the gravel. When Noble was working himself, he was working in the service of the company. I think he was, all the time I was there, scraping the surface off. ” Tucker, who controlled the men and kept their time, testified: “Noble’s teams worked there, and Noble himself one-half day. He was scraping off the top of the gravel. * * * Noble saw how we were doing the work, and never made any objections, or asked me to save the sand, or told me what to do with it, or pointed out any place where the sand was that he claimed. We did not talk much. ” This evidence was sufficient to authorize the court in giving the defendant’s fourth instruction.
The seventh instruction asked by the plaintiff is objectionable in making the question of an implied license of the plaintiff depend upon the fact that the company, in taking and removing the sand with the gravel, was uninfluenced by the fact that plaintiff hired his teams and hands to it, to work for it. Plaintiff’s acts, such as, his failure to make any objection to the work being done and about to be done, or to point out any sand he wished saved, were more likely to influence the defendant than the employment of the plaintiff. By these acts the parties in interest gave construction to the contract. If appellant intended to resist the claim of the defendant, it was his duty to have objected, then and there. His silence, under the circumstances, was a recognition of the rightfulness of defendant’s construction of the provisions of the deed. By acquiescing in the removal of the gravel from his land, and assisting therein, he, at least' by necessary implication, licensed what was done, with his consent. If the defendant was taking deposits containing too much sand, in his judgment, he should have made his objection at the time. Not having done so, his conduct was such as to assure the defendant and its servants that it was proceeding rightfully, or at least with his consent.
We fail to discover any substantial error in the giving or refusing of instructions. The court instructed the jury as favorably for the plaintiff as he had any right to require.
The judgment will have to be affirmed.
Judgment affirmed.