70 N.J. Eq. 318 | New York Court of Chancery | 1906
The bill in this case was filed to restrain the defendant froui maintaining its embankment where the complainant had a road crossing over defendant’s railway between the severed portions •of his farm. This court decreed that the company should construct a tunnel or opening through the embankment substantially at grade, such opening to be not less than twelve feet in height and .width. On .appeal it was thought that this direction was too onerous. It was held that the complainant’s right to a crossing was not destroyed by the elevation of the tracks, but it was thought that the complainant was only, under the circum■stances, entitled to damages, and that if he was willing to have them assessed in this court the bill might be retained for that purpose. The submission has been made. The question thus presented is not without difficulty, for the amount of damages
In the opinion on the application for injunction I held that the covenant that the predecessor of the defendant company would “provide the party of the first part with a suitable and convenient road crossing across the track of said-railwaj'” gave an- unlimited right—a right of passage for all purposes. I do not find in the opinion on appeal any dissent from this view, and further reflection has only confirmed me in its soundness. Speer, the complainant’s ancestor, when he conveyed to the railroad company in June, 1870, was the owner of a farm extending easterly from Clilfside avenue to Valley road, and thence across Valley road to a line about eight hundred feet distant therefrom. The railroad, running north and south, cut this farm in two. The tract which lay west of the railroad embankment contained a little more than nine acres, and was completely severed, not only from the land lying east of the embankment and west of the Valley road, but also from tire dwelling-house and barn, which lay east of that high wary and could only be reached, without trespassing upon neighboring property, bjr making a long circuit of three-quarters to seven-eighths of a mile. ■
How, Speer’s right being a right to pass from the land west of the railway to the land on both sides of Valley road, and to Valley road itself and back again, can it be said that if he had built a house or barn on the severed tract,-he would not have had the right of -passage therefrom to Valley road? And if he had built two or three houses, would not his. right have been the same ? And suppose he had. conveyed the entire farm to two or three or twenty persons as tenants in common, would they not have acquired the same right? Where do we find it written or implied in the covenant that when Speer ceased to use the land for agricultural purposes his right to pass over the crossing
But it is contended, further, that while Speer and his grantees of the entire farm would have the right, a grantee of a lot in the tract west of the railway would not have it, and that consequently the possibility of utilizing portions of the land for building purposes and selling it for those purposes cannot enter into the question of value or of damages. In other words, that, so far as this question is concerned, the land must be regarded as farm land only for all time to come. The cases relied upon to support this contention are Marino v. Central Railroad Co., 69 N. J. Lem (40 Vr.) 628, and the Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 62 N. J. Law (33 Vr.) 254. In the first ease, a railroad company, empowered to take by condemnation, was required by statute to maintain over or under its road suitable wagonways where the railroad intersected the land of an individual owner, “so that he may pass the same.” It was held that the owner had a right of way across the railroad, appurtenant to each of his divided tracts, but that his right was not transmitted to a grantee of a portion of the lands lying only on one side of the railroad. Chancellor Magie said: “The right reserved and the duty imposed by that section [section 9 of the charter of the M. & E. R. R. Co.] is
I have particularly mentioned these cases because it appears to me that, so far from. supporting the position of defendant, they are authorities for the opposite view, at least to this extent. They concede that a grantee of a part of the land has a right of crossing if the land acquired lie on both sides of the crossing and adjoin it, and this, too, in cases where the right is a limited right and not a right of crossing for all purposes.
In the Marino Case, the right was held to be limited by statute in the same way that in the Pipe Line Case it was held to be limited by the explicit language of the deed. It was not decided in either of those cases that where the crossing given was a crossing for all purposes, the lot-owner owning on one side would not
But another and somewhat singular point has been raised. The entire clause in the Speer deed reads as follows:
“The party of the second part (the railroad company) doth, for itself and its successors, agree to make and maintain the necessary fences on both sides of said tract of land, which shall be built before the grading on said tract is commenced, and shall provide the party of.the first part with a suitable and convenient road crossing across the track of said railway where the party of the first part may direct.”
The proof shows that the company made the fences and put in sliding rails at the crossing. The argument is that the company had a right to maintain these rails; that those who might have lawfully crossed would have been obliged to replace them
The company’s right is asserted to have been an absolute right to maintain bars, however inconvenient they might have been to the lotowncrs. The deed itself is silent on the subject. The general rule is that gates or bars may be placed at the termini of a way, particularly an agricultural way. It is based on the great preponderance of convenience to the landowner over the slight inconvenience to- the wayowner. It ceases when the preponderance of convenience is in favor of,the wayowner. Godd. Easem. 331.
In Jewell v. Clement, 69 N. U. 133; 99 Atl. Rep. 582, Justice Wallace says: “From the creation of a way by deed in general terms, without a provision giving the owner of the land over which it passes the right to erect gates or bars, neither a grant nor a denial of that right is necessarily to be implied. But the right to erect them cannot be implied if they constitute an unreasonable obstruction to the reasonable and proper use of the way. Neither party could have intended that the reserved way was to be subject to any unreasonable obstruction. Whether the erection of the bars by tire plaintiff was a proper use of his premises, compatible with the defendant’s reasonable enjoyment of the easement, or was an unreasonable'obstruction of the way is a question of fact.” Gates or bars were deemed proper in the following, among other cases: Boyd v. Bloom, 152 Ind. 152; 52 N. E. Rep. 751; Connery v. Brooke, 73 Pa,. St. 80; Short v. Devine, 146 Mass. 119; 15 N. E. Rep. 148; Bakeman v. Talbot, 31 N. Y. 366. The right to maintain them was denied in the following: Smith v. Worr, 93 Cal. 206; 28 Pac. Rep. 944; Devore v. Ellis, 62 Iowa 505; 17 N. W. Rep. 740; Jewell v. Clement, supra; Welch v. Wilcox, l0l Mass. 162; Williams v. Clark, 140 Mass. 238; 5 N. E. Rep. 802; Dickinson v. Whiting, 141 Mass. 414; 6 N. E. Rep. 92.
Williams v. Clark was the case of a railroad crossing. H. conveyed to a railroad company by a deed which provided that
If a way given for all purposes cease to be used for agricultural purposes and become useful for other purposes it may be adapted to those purposes. It is a well-established rule that “in doing the works that are necessary for the enjoyment of the easement, the OAvner of the dominant tenement may do ever)'thing that is required for the full and free exercise of his right.”
This brings me to the question of the amount of damages to be awarded. The supplemental evidence makes it clear that the land is not to be treated as farm land. Excluding the lots on Mountain avenue and Valley road—the most valuable part of the tract—the highest estimate of the interior land-—about nine acres—by any of the complainant’s witnesses is $1,200 per acre, and the lowest estimate of any of defendant’s is $300. The depreciation caused hy the destruction of the way is variously estimated by complainant’s witnesses at from $300 to $700 per acre; that is, from $2,700 to $6,300. These witnesses all agree that gates or bars ‘would materially diminish the value of the land. Of the defendant’s witnesses, two, Mr. Grane and Mr. Van Duyne, give an estimate of the value of the interior land
It is necessarily a matter of conjecture as to how much complainant has been injured. Resort must be.had to opinion evidence of a somewhat unsatisfactory kind. But it is. the best available, and it has been necessitated .by defendant's action in destroying complainant's right in the face of actual notice. Under these circumstances it does not seem to me that all doubts should be resolved in defendant's favor. I think the weight of the evidence fairly warrants a finding that the right destroyed is worth $3,000.