62 N.J.L. 254 | N.J. | 1898
The opinion of the court was delivered by
The Morris and Essex Eailroad Company was incorporated in 1835 (Pamph. L., p. 25), with all the rights and powers necessary to lay out and construct a railroad or lateral roads from Newark, in the county of Essex, to Morristown, with power of purchasing and holding, &c., any lands and tenements, &c., necessary and expedient to the objects of the incorporation — to enter upon, take possession of, have, hold, use and occupy and excavate any such lands, and erect embankments, bridges and all other works necessary, to lay rails and to do all things which shall be suitable or necessary for the completion or repair of said road, subject to such compensation as is provided in the act. By section 7 of the charter it is enacted that if the owners of the lands on which such railroad or railroads shall be made shall not be willing to give the same for such purpose, and the company and owners cannot agree upon the price to be paid, then the company may proceed by condemnation proceedings to have the price or value of said lands assessed by commissioners, and when such condemnation proceedings are consummated as provided by the act and the price assessed paid, then the company shall be deemed to be seized and possessed in fee-simple of all such lands and real estate appraised as aforesaid. By several supplements to the company’s charter it was authorized to extend its railroad to Phillipsburg. In the extension of its railroad from Hackettstown to Phillipsburg the company located its route over and across lands of Cornelius Stewart, separating the same into two parcels, one on each side of the company’s located route.
By a deed dated March 26th, 1864, Stewart and wife conveyed to the Morris and Essex Eailroad Company a tract of land containing three acres and eighty-seven hundredths of an acre, described in the deed of conveyance as consisting of a lot of land extending twenty-five chains and eighty-one
This conveyance was made for the consideration of $1,300,, in consideration whereof the grantor, Stewart, did for himself, his heirs, executors and administrators, and also for his. assigns, future owners of the lands of said Stewart adjoining the lands and premises thereby conveyed, exonerate, acquit and forever discharge the said Morris and Essex Railroad Company and its successors and assigns from all claims for damages for separating said adjoining lands of said Stewart into two parts by constructing a railroad on the premises', granted. And the grantors, for the consideration aforesaid, did grant, bargain, sell, convey and confirm to the said Morris and Essex Railroad Company and to its successors and assigns forever, the tract of land and premises described in its deed, and with full power to make use of the same in all lawful ways for the purpose of the extension of its-said railroad and as part of the route thereof, to have and to. hold the said above-described tract of land and premises, with the appurtenances, unto the said the Morris and Essex Railroad Company and its successors and assigns forever, for all the purposes mentioned in said act of incorporation and the several supplements thereto passed and to be passed.
The operative words of conveyance in this deed are such-as, by the common law, would vest in a corporation an estate-in fee.
The deed contained a stipulation that the company should erect and forever maintain under the rails of its railroad, at a point where the same shall cross the land line between the lands of Stewart and Dufford, “a suitable wagon-road or crossing, which shall be at least thirteen feet wide by thirteen feet high, * * * so as to enable said Stewart to.travel and cross freely between his lands, on each side of said granted1
By a lease dated December 10th, 1868, the Morris and Essex Railroad Company demised to the Delaware, Lackawanna and Western Railroad Company its franchises, together with all lauds, real estate, rights of way, and all its other property and rights of every kind, real, personal and mixed, with the hereditaments and appurtenances, for the full term of the continuance of its charter and all renewals thereof. This lease was validated by an act of the legislature passed in 1869. The terms of the lease and of the act of validation are set out in State Board of Assessors v. Morris and Essex Railroad Co., 20 Vroom 193, 207, 211. By force of this lease and the validating act the title of the Morris and Essex Railroad Company to the premises in question became vested in the plaintiffs.
Stewart died in 1884. By his will he devised all his estate, real and personal, to his wife, Elizabeth, to her and to her heirs and assigns forever. Elizabeth Stewart died in 1885, and by her will bequeathed all her real and personal property to her two daughters, Sarah Anderson and Mary Isabella Stewart. By a deed dated August 30th, 1895, Sarah A. Stewart and Mary Isabella Stewart conveyed to Breckenridge the premises described in .said deed of conveyance, being the same lands and premises as had been conveyed by Cornelius Stewart and wife to the Morris and Essex Railroad Company, in 1864.
The defendant makes its title to the loous in quo under the conveyance last mentioned.
The position taken by counsel on this branch of the case is expressed in their briefs as follows: That the Morris and E<sex Railroad Company, by its deed from Stewart, took
This contention raises the question of the nature and extent of title acquired by the railroad company under its charter for lands required for the construction and use of its railroad. The argument is that, by their charters, these companies can take by condemnation, not title, but an easement only, and that a grant of lands by the owner to such a company, no matter how expressed, will not confer any greater right or estate.
The power of the legislature to endow companies organized for public purposes with the capacity to acquire lands under the right of eminent domain is undisputed. Grants of this character, like all public grants, are to be strictly construed— what is not plainly given is withheld. ' The rule for the construction of public grants in strictness has never been extended beyond these principles. Wherever the legislature has given in plain terms that which the company has the capacity to take, the court is not justified in frittering away the legislative grant by denying the legal effect of words of technical signification contained in it, when on a reasonable construction there is nothing in the subject-matter or context which would prevent the grant so construed from taking effect.
The act incorporating the railroad company conferred upon the company the capacity of purchasing, holding and conveying any lands, tenements, goods and chattels whatsoever necessary or expedient to the object of its incorporation. It declares that the company may enter at all times upon all lands or water for the purpose of exploring, &c., and laying out the route or routes of their railroads, and that it should
The title acquired by a railroad company by condemnation under statutory powers similar to those contained in the charter of the Morris and Essex Railroad Company was elaborately discussed and decided in New York, Susquehanna and Western Railroad Co. v. Trimmer, 24 Vroom 1. That case was an action of ejectment brought by the railroad company under its title by condemnation against the original owner, who refused to give possession. The defence was that the railroad company had “ not title to the premises in question, but only an easement in them,” and that ejectment would not lie founded on such a right. The opinion was delivered by Chief Justice Beasley, who said that the rule that ejectment is not an appropriate remedy when the enjoyment of an easement is the subject of the suit has been often stated and is in nowise questionable. He added: “ But the interest in the lands now in question is not an easement. In cases of easements there must be not only a servient tenement, but also a dominant one, and which latter constituent is entirely lacking in the present instance. The action of ejectment' is * * * a possessory remedy and can be resorted to only when a right of entry exists and where the thing or interest is tangible, so that possession can be given by the sheriff. It is manifest, therefore, that if the interest of the railroad company in these premises were a naked right of way it would constitute no such right of possession of the land itself as would sustain this action, for such a right would be an incorporeal one, upon which there could be no entry nor could possession of it be given under an habere facias possessionem. But manifestly such is not the right in this land that is vested in this company, for can it be denied that the corporation has a right to enter upon it, and that a judgment in its favor could be executed by the officer putting it in possession ?
In an earlier case (Taylor v. New York and Long Branch Railroad Co., 9 Vroom 28), Chief Justice Beasley, delivering the opinion of the court, designated the right of the company
In Hibernia Railroad Co. v. De Camp, supra, the statute under which the condemnation was conducted was an act to authorize the construction of underground railroads, and the right acquired was defined to be the mere right to tunnel and excavate the earth for the use of its tracks, with a proviso that such right of way should not include the right to permanently use or occupy the surface of the earth immediately above such railroad, and it was held by this court that all that was acquired by condemnation was a right of way and
But, independently of the effect of the condemnation under the company’s charter, it is clear, by the rules of the common law and under an unbroken series of decisions in this state, that by the deed in question the railroad company took an estate in fee. The operative words of conveyance in the Stewart deed were of a grant to the company, its successors and assigns forever, words which, by the common law in a grant to a corporation, convey a fee-simple estate. The qualifying words in the habendum, clause, “ to have and to hold,” &c., “unto the said the Morris and Essex Railroad Company and their successors and assigns forever, for all purposes mentioned in said act of incorporation and the several supplements thereto passed and to be passed,” are simply a qualification of the fee that enured to the company by the operative words of the grant.
“Of fee-simple,” says Lord Coke, “it is commonly holclen that there be three kinds, viz., fee-simple absolute, fee-simple conditional and fee-simple qualified or a base fee. But the more genuine and apt division were to divide fee — that is, inheritance — into three parts, viz., simple or absolute, conditional and qualified or base, for this word simple properly ex-oludeth both conditions and limitations that defeat or abridge the fee.” 1 Inst. 1 b. “Where an estate limited to a person and his heirs has a qualification annexed to it, by which it is provided that it must be determined whenever that qualification is at an end, it is then called a qualified or base fee — as
In State v. Brown, 3 Dutcher 13, a deed was made to the Morris Canal and Banking Company, their successors and assigns, to the only proper use, benefit and behoof of the said party of the second part, their successors and assigns, “as long as used for a canal.” The charter of the canal company empowered it to acquire land without limitation in point of estate, and provided .for the operation and privileges of the company for one hundred and fifty years, and then that the canal and its appurtenances should become the property of the state. The court held that the deed in question conveyed all the right, title and interest of the grantor in the land and its appurtenances, and however much the corpoi'ation might be restricted in the use of its estate it was nevertheless the owner in fee of the land as long as the estate continued, although it may have had no right to use the land for any other purposes than those expressed in the grant. In the decision of the case the court adopted, without qualification, the common law doctrine that, by the conveyance, the grantees took a qualified fee, liable to be defeated whenever they ceased to use the land for the purpose specified in the grant, but that while the estate continued and until the qualification upon which it was founded was at an end the grantee had the same rights and privileges over his estate as if it were a fee-simple. The case was reversed in Brown v. Morris Canal Co., Id. 648, but for a reason not in any manner involved in the construction or effect of the deed or the estate granted thereby.
In Southard v. Central Railroad Co., 2 Dutcher 13, a deed was made to a railroad company for certain lands, to be occupied for the sole and only use of a depot for passengers and
In New York Bay Cemetery Co. v. Buckmaster, 20 Vroom 449, this court held that a deed in fee for a burial lot from a cemetery company, with an habendum, “to have and to hold the granted premises to the said,” &c., “ his heirs and assigns, for the uses of sepulture only and to or for no other uses whatever, subject to the conditions and limitations and with the privileges specified in the rules and regulations now made or that may hereafter be made and adopted by the managers of the cemetery company for the government of the lot-holders and visitors of the same,” conveyed to the grantee the fee, and that the fact that the grantee was limited in the use which he might make of the property did not deprive him of his title or his right of possession, and that under the deed the grantee might maintain ejectment against the cemetery company.
In McKelway v. Seymour, the land was conveyed to the grantees in fee for a raceway and embankment for a' waterpower, with a proviso that so much of the premises as should not be used for the purpose specified should revert to the grantor, and it wás held that the grantees took a title in fee-simple subject to forfeiture by non-user, that although it was a qualified fee, liable to be defeated by the breach of the condition, while it lasted it had all the qualities of a fee-simple absolute, and. that the plaintiff had'no right of entry upon
In Fitzgerald v. Faunce a deed was made to Faunce, his heirs and assigns, “ of the sole right, privilege, use and enjoyment, at all times for all purposes, of fishing whatsoever, and for no other purposes,” of two described lots, “ to have and to hold to the grantee, his heirs and assigns forever.” The action was in trespass and directly presented a question of title as between the parties, both of whom claimed under a common grantor. This court held that the deed conveyed to the grantee an actual estate in the strip of land and that he became thereby riparian owner, and that if the estate was so qualified as to use that neither the grantee nor his heirs could make a grant from the state available, the intervention of it, between the upland and the river would make the plaintiff’s grant from the riparian commissioners inoperative as against the estate and rights conveyed to F. by his deed. In the decision of the case the court said : “ Conveyances to railroad, canal and water companies, and to mining companies, for a special use, as, for instance, for a depot or for the accommodation and victualing of passengers, for a rail or tramway, for a canal or raceway, and of minerals and ores, are always regarded as conveyances of estates in lands, and if the words of conveyance are adapted to convey a fee the estate granted will be a fee, though the grantee is restricted in the use of the estate conveyed,” followed by a citation of cases. 17 Vroom 536, 596, 597.
In New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co., the canal company had not acquired title either by grant or by condemnation. The title set up was a title by au adverse possession of upwards of forty years. Vice Chancellor Van Fleet, distinguishing title acquired by adverse possession, such as the title involved in Pennsylvania Railroad Co. v. Breckenridge, 31 Vroom 583, and a right such as the canal company might acquire under the peculiar terms of its charter, from title by a grant of an estate in fee, either absolute or qualified, used this language: “Under a convey
The defendant’s counsel, to sustain the contention that the company took an easement only in the lands granted to it by the Stewart deed, relied greatly on Green v. Morris and Essex Railroad Co., 1 Beas. 165. The question involved in that case was the obligation of the company to construct wagonways where its railroad should intersect any farm or lands of any individual. That obligation was imposed by the ninth section of its charter, and was wholly independent of the nature of the estate taken by the company in condemnation proceedings. The company had condemned the lands of the complainant, and, pending an appeal, the matter was submitted to arbitrators. The arbitrators made an award and a release was given under seal. A suit at law having been brought against the company for not constructing a suitable crossing, the release was pleaded and a bill was filed to reform the deed so as to make it conform to the agreement of the parties. A decree was made enjoining the company from setting up the deed as a bar to recovery in an action at law. The decree was affirmed in this court. 2 McCart. 469. In the Court of Chancery an opinion was expressed that the deed of release conveyed no greater right than the company acquired by the condemnation, and hence the right to have a
The Morris and Essex Eailroad Company took possession of the land conveyed to it by Stewart and constructed its railroad thereon, with an embankment, under which it constructed an undergrade crossing, with masonry, abutments and wing-walls of the height and width specified in the company’s deed. The company completed and put in operation its road in 1865, and operated the same continuously until the lease to the Delaware, Lackawanna and Western Eailroad Company. The latter company from that time operated and is still operating the railroad for railroad purposes. The grant of Stewart to the company was in fee, and the contingency which when it happened would determine the estate, has not yet arisen. The title is at this time in the plaintiffs.
The defence, therefore, must rest on justification and not on title. The only plea on’the record is a plea of the general issue. In an action of trespass title may be given in evidence under the general issue. Todd v. Jackson, 2 Dutcher 525. A justification, such as leave and license or a private right of way, must be specially pleaded. Hetfield v. Central Railroad Co., 5 Id. 571; 1 Chit. Pl. 505. Such a defence was fully considered by counsel, and the case will be regarded now as if the proper plea had been introduced by amendment.
The grant in terms is to Stewart without the word “ heirs” or words of perpetuity. Such a grant, by the common law, would create only a personal right for the life of Stewart. "Where the right is granted in a deed in the nature of a reservation, and it is manifest from all the recitals in the deed on the subject that the plain purpose of the parties was to create a right for the benefit of the parts of the whole tract which had been severed by the conveyance, the grant will be construed as creating an easement appurtenant to the premises and will pass as such without the word “ heirs,” at least in equity. Coudert v. Sayre, 1 Dick. Ch. Rep. 386, 395. In the courts of some of our sister states the same construction has been given to such grants in courts of law (Jones Easem., §§ 89, 106), and in National Bank v. Segur, 10 Vroom 173, it was held that a covenant that confers an immediate, permanent and beneficial effect on the use to which real estate is designed to be applied will run with the title without words of perpetuity and will support an action at law by one who afterwards succeeds to the title. But in Hagerty v. Lee, supra, the question whether the word “ heirs ” is necessary at law to create an easement which should be appurtenant to the land was expressly left undecided. Counsel, on the argument, assumed that this grant was attached to the land and passed with the estate as an appurtenant. That view will be adopted for present purposes.
The construction of the grant of the right of way in the deed from Stewart to the company presents the merits of this controversy, and the solution of the contested problem depends upon the terms of the grant, construed in conformity with the rules which control in the construction of grants. One granting an easement may limit the grant and the grantee takes subject to the restrictions imposed. The limitation may be with reference to the purposes for which the easement may be used, as, for instance, a right of way may be granted for agricultural purposes only, or for mining purposes, or with reference to its use as a footway or a carriageway or a way for cattle. Jones Easem., § 355; Gale Easem. 199. In this instance the subject of the grant is defined as “a suitable wagon-road or crossing,” and the purpose for which the same is to be made is defined to be “ so as to enable said Stewart to travel and cross freely between his lands on each side of said granted premises.”
Cases such as Central Railroad Co. v. Valentine, 5 Dutcher 561, and Dand v. Kingscote, 6 Mees. & W. 174, have no relevancy to this controversy. In the former case, "Valentine, by a deed, conveyed to the railroad company the land upon
In the later case of United Land Co. v. G. E. Railway Co., 10 Ch. App. 586, the railway company was empowered to make a railway, and for that purpose to take lands, among which were crown lands. By the act it was enacted “ that the said company shall and they are hereby required, at their own costs and charges, to make and construct such convenient communications across, over and under said railway * * * as shall, in the judgment of the commissioners of woods and forests,” &c., “be necessary for the convenient enjoyment and occupation of the lands of Her Majesty, and such communications, when so made, shall at all times be kept in good order and repair by and at the expense of the company.” The crossings fixed by the commissioners were level crossings and they were constructed by the railway company. At the time this act was passed the lands on both sides of the railway lands were marsh lands. These lands came into the possession of the land company, and the latter company laid them out into building lots, and a considerable number of houses were built thereon and others were in the course of building. The roads, with the level crossings, formed the only means of communication for the occupants of the houses with the rest of the country. The court held that, the right, being unrestricted in terms, the crossings were to be communications for all purposes to which, at the time or at any future time, the owner should think fit to appropriate his land. The ground of decision in the Court of Appeals is stated by Lord Justice Mellish in these words: “ But when a right of way is created by grant or by act of parliament, then it must depend on the proper construction of the grant or act of parliament whether the right of way is to be used for all purposes or for only limited purposes. No doubt there are authorities that, from the description of the lands to which, the right of way is annexed and of the purposes for which it is granted, the court may infer that the way was intended to
Neither do the cases last above cited apply to this litigation, but the passage quoted from the opinion of Vice Chancellor Malins in principle is quite in point. The easement in this case, in plain terms, is a grant of a right of way between the two parcels of land into which the tract was divided by the grant to the railroad company. It is impossible to give it any other construction consistent with the words used. Where a way is created by a grant for the benefit of particular land, its use is limited to such laud, and cannot be extended to other land. Jones Easem., § 360; Acroyd v. Smith, 10 C. B. 164. If one grants a right of way from D. to Blackacre, and the grantee afterwards purchases lands adjoining to Blackacre, he cannot justify the user of the way to those lands. 2 Com. Dig. (Chimin, D5) 299. One having a right of way to his land, Blackacre, over land of another, has no right to drive his cattle to Blackacre, and then to other land beyond it. In the leading case upon this point (Howell v. King, 1 Mod. 190) it was urged for the owner of the right of way that when his cattle were at Blackacre he could drive them whither he would. On ,the other side it was said that if this were so he might purchase one hundred or one thousand acres adjoining Blackacre, to which he had a prescriptive right of way, and so the owner of the soil would lose the benefit of his land; that a prescription presupposed a
The laying of these pipes in the roadway in no sense conferred a benefit on the lands to which the way was appurtenant, nor were the pipes adapted to facilitate or promote access between the two parcels of land to which the easement was appurtenant. They extend underground the entire distance of the way, and are designed to be used as part of a pipe line for the purpose of conveying oil.
The contention that the pipes laid underground do no injury to the railroad company as the owner of the fee, and therefore the company has no ground of complaint, is without any support either in principle or authority. On such a theory the defendants would he authorized to lay pipes under or through the premises for the transmission of gas or water —in fact, to construct an aqueduct of the dimensions of the span of this passageway to carry the waters of the Delaware to supply the cities of the seaboard. Where the words of the grant are clear and unequivocal there is no room for the application of the principle that the grant must be construed most strongly against the grantor; the parties must be confined to the plainly-expressed agreement in the deed. Whether the right claimed will impose a greater ,or less burden on the company’s land than the right granted is an irrelevant inquiry. Johnson v. Jaqui, 20 C. E. Gr. 410, 413; S. C., 12 Id. 526.
For affirmance — The Chancellor, Collins, Depue, Dixon, Garrison, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vredenburgh. 13.
For reversal — None.