128 Va. 93 | Va. | 1920
delivered the opinion of the court.
This is an appeal from a decree dismissing upon demurrer a bill in .equity filed for the purpose of enjoining and restraining the defendants from using a certain railroad right of way.
The material facts as stated in the bill may be summarized as follows:
In the year- 1878 the Altoona Coal and Iron Company obtained from the General Assembly of Virginia a charter of incorporation “for the purpose of mining coal, iron, salt, limestone, lead, zinc, manganese, or other ore, and manufacturing the same in the counties of Pulaski, Wythe and Bland, and with the privilege and right to make or to assist other joint stock companies, or corporation or association or individuals, in making roads, tramways, or railroads, from or by their mine, to intersect the Atlantic, Mississippi and Ohio Railroad at Martin’s station, Pulaski county, or at some point west of said station, provided hereby, no road, tramroad or railroad shall exceed fifty miles in length.” (Acts 1877-8 p. 34.)
Thereupon this company proceeded to open up and operate a coal mine, known as the “Altoona Mines,” in Pulaski county, and constructed a narrow-guage railroad leading therefrom to Martin’s station (now the town of Pulaski) about nine miles from the mine. The road was built for the purpose of transporting the product of the mine, prac
In acquiring rights of way for its road over intervening lands, the company obtained from W. W. Bentley and wife (under whom complainant claims) a deed dated June 28, 1878, which conveyed the right of way involved in this suit. This deed recites that ‘the Altoona Coal and Iron Company is desirous of constructing a railway from their coal fields and colliery in said county (of Pulaski) over and through the lands of the said William W. Bentley so as to connect said railway with the Atlantic, Mississippi and Ohio Railroad at or near Martin’s station,” and that “the said William W. Bentley has agreed to grant to the said A. C. & I. Company a right of way over his said lands for the said railway upon the terms, stipulations, covenánts and conditions in this deed hereinafter contained.” The deed then proceeds, “for and in consideration of one dollar and for divers other considerations,” to grant to “the said Altoona Coal and Iron Company, its successors and assigns forever the right * * * to make, build, construct and complete the said line of railway over and through” the Bentley land, “and when the same is completed to have and enjoy the free and exclusive use of the same for the purposes for which it is to be constructed,” with the proviso “however, that this grant is to be determined and the land occupied by the said line of railway is —— revert to the said William W. Bentley, his heirs or assigns whenever the said railway shall cease to be used for the purposes aforesaid for the space of -.” There was a further provision in the deed requiring “the erection of a siding and depot shed for the convenience of the said Bentley and the public at such point as he may designate.”
After the “Altoona Mines” had been operated for some years, and the output during that period hauled over the railway, the mining operations wholly ceased and have not.
The complainant, W. T. Robertson, acquired from Bentley in 1911 the land traversed by the right of way in question. At that time the use of the railway for all purposes had been abandoned for about five years; the depot on the land “had long since been discontinued and removed; the siding there had been torn out and taken away; the bridges over Peak creek and said railway had been washed out some four years before and had never been replaced; adjoining neighbors of'complainant had, under direction from the Bertha Mineral Company (successor in title of the A. C. & I. Co.), run their line fences clear across the said narrow-gauge railway and right of way so that the same was wholly and entirely obstructed, and the railway had not been used for any purpose for five years, nor for hauling coal, or any other purpose of its charter for twenty years.”
In the meantime, pursuant to express authority of an act of the General Assembly approved February 10, 1894, (Acts 1893-4 p. 201) the Altoona Coal and Iron Company, by deed dated November 21, 1894, conveyed to the Bertha Zinc and Mineral Company “all of the charter rights, privileges, powers, franchises, effects and property, real, personal or mixed, heretofore or now owned by the said grantor, to pass to, vest in, and enure to the benefit of the said grantee, or its successor or successors;” and, by deed dated April 1, 1895, the Bertha Zinc and Mineral Company conveyed to the Bertha Mineral Company all the property rights and privileges which had. been conveyed to the former by the above recited deed of November 21, 1894, from the A. C. & I. Company.
After the railway was repaired and put in use over complainant’s lands for the purposes last above recited, the Bertha Mineral Company and the Buckeye Lumber Company refused to treat further with the complainant and denied that they' were violating any of his rights in the premises.
The demurrer, which of course admitted the truth of the foregoing alleged facts, vfas based upon the following grounds:'
“1. The bill shows on its face that the plaintiff has an adequate remedy at law.
*100 “2. The bill shows that the right-of-way has never been abandoned by the owners thereof.
“3. There is no condition precedent named in the deed by which the right-of-way was acquired by the predecessors in title of The Bertha Mineral Company, or by The Bertha Mineral Company.
“4. There is no condition subsequent named in said deed upon which title to said, right-of-way shall revert to W. W. Bentley or to the plaintiff, his grantee, of the land over which the right-of-way runs. The deed mentioned no specific purpose or use to which this road is restricted and the vague reference to reverter, ‘whenever the railway shall cease to be used for the purpose aforesaid for the space of-,’ lacks the qualities of certainty and definiteness required in stating conditions subsequent, which are not favored in the law, and, when read in connection with the whole deed, is wholly meaningless.
“The bill shows that the easement was used for other than mining purposes for a period of more than fifteen years prior to the institution of this suit, thus showing conclusively not only an intent not to abandon the easement, but the construction placed on the grant of the easement by the parties to that grant.
“5. The right-of-way having been acquired by deed, its loss by mere nonuser can only come about by a lapse of time and a combination of circumstances sufficient to recreate in the owner of the dominant tenement a title to the easement by prescription.
“6. The corporate existence of Altoona Coal and Iron Company cannot be questioned or attacked collaterally, as is attempted in this proceeding.
“7. The bill shows on its face that the corporate- rights and franchises of Altoona Coal and Iron Company are merged in The Bertha Mineral' Company, and that The Bertha Mineral Company is a going concern possessed of the*101 franchises, rights and property of Altoona Coal and Iron Company.
“8. The bill shows no equity in the plaintiff. The plaintiff acquired the land subsequent to the easement. At the time of his purchase the easement was in existence and visible upon the land, and the deed conveying the same to the grantors of The Bertha Mineral Company was of record in the clerk’s office of Pulaski county, Virginia.”
The decree complained of expressly over-ruled the first ground of the demurrer, and made no reference to the eighth, but the second, third, fourth, fifth, sixth and seventh were expressly sustained.
It is clear that the deed in question contained no condition precedent to the vesting of such title to the right of way as the deed was intended to convey. The only express condition subsequent was one which provided that the grant was “to be determined and the.land occupied by the said-line of railway is-revert to the said Wm. W. Bentley, his heirs and assigns, whenever the said railway shall cease
The Altoona Coal and Iron Company was purely a mining company, and the plain purpose of its incidental charter right to build “roads, tramways or railroads” was to facilitate the primary objects of its incorporation. It is fair to assume that both parties to the Bentley deed, executed only a few months after the company got its Charter, contracted with reference to this fact. Further, and more directly to the point, the deed itself recites that this company (exclusively a mining company) “is desirous of constructing a railway from their coal fields and colliery in said county and State over and through the lands” of the said Bentley, and that the right of way is to be granted “upon
We do not think that the deed can naturally or fairly be construed as passing anything but a right of way for a railroad for use in connection with the primary purposes of the coal company. To extend it, even if there has not been a technical abandonment of the original grant, to the wholly different and. foreign purpose for which it is now being used, would be to make a new contract for the parties.
We do not so construe the allegations of the bill. They show; (1), that for at least twenty years prior to the institution of this suit the road had not been used for hauling coal, or otherwise in aid of any of the purposes for which the Altoona Coal and Iron Company was incorporated, and, (2), that for about five years prior to the purchase of the land by the complainant, in November, 1911, and therefore about twelve years before this suit was brought (in 1918) it had not been used for any purpose whatever. There is a fair inference from the averments in this connection that the road was used for some years for purposes not connected with the grant, and there is a positive statement therein that this and all other use then ceased entirely and was not resumed until about twelve years later, when the right to do so was promptly challenged by the owner of the land.
The fifth ground of demurrer, in view of what hás already been said, requires no special discussion.
The sixth and seventh requires consideration because if the defendants should hereafter file an answer, the questions raised by those grounds might become material on the ultimate merits of the case.
We are of opinion, for the reasons hereinbefore stated, that the facts alleged in the bill, the complainant is entitled to an injunction. The decree complained of will therefore be reversed, the demurrer overruled and the cause remanded for further proceedings to be had in conformity with the views herein expressed.
Reversed.