Walker v. Illinois Central Railroad
74 N.E. 812
Ill.
1905
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

The briefs filed by the respective parties have been limited to the consideration of one question only, which is, is the appellee, under the terms of its grant from Stephen A. Douglas, as found in the deed which is made a part of the declaration, limited in its use of said 200-foot strip conveyed to it for right of way purposes, to the construction, maintenance and operation of a single or double track railroad thereon, with necessary appurtenances, or may it devote the entire strip to track purposes if it deem such use necessary for the proper and successful operation of its railroad ?

The first proposition discussed is whether the appellee, by virtue of said deed, took a fee in said 200-foot strip or merely an easement; There can be no question but that the appellee, under its charter and the statute in force in this State at the time it received said deed, had the power to acquire a fee, but we think, upon consideration of all the provisions found in said deed, that it did not acquire the fee to said strip, but only the right to use the same perpetually for railroad right of way purposes. The land contained in the strip was not conveyed to the appellee, but its use. The interest, however,' which the appellee acquired in said- strip was absolute for the purposes for which it was acquired, so long as it was used for railroad right of way purposes. In Hazen v. Boston and Maine Railroad Co. 2 Gray, 574, it was said (p. 580)“The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive.” And in Chicago and Mississippi Railroad Co. v. Patchin, 16 Ill. 198, this court, on page 202, speaking through Mr. Justice SCATES, said: “I presume the right to the land upon which railroads are built is not strictly analogous to the easement of the public in highways, leaving the fee in the owner of the soil, but is an absolute ownership in fee for railroad purposes.” And in Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500, it was held that the right of way was the exclusive property of a railroad company, upon which no unauthorized person had the right to be for any purpose. And in Jackson v. R. & B. R. R. Co. 25 Vt. 150, Mr. Justice Redfield said: “The railway company must, from the very nature of their operations, in order to the security of their passengers, workmen and the enjoyment of the road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the former owners in any mode and for any purpose.”

In Illinois Central Railroad Co. v. Houghton, 126 Ill. 233, on page 241, where the court was considering a deed very similar to the deed now under consideration, it was said: “While we are not disposed to hold that the deed from Walker to the plaintiff conveyed to the plaintiff an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee. The right of possession thereby conveyed was exclusive, and was wholly inconsistent with the subsequent possession of the land, or any part of it, by the grantor or his assigns for purposes of grazing or agriculture, or as a part of the farm to which it originally belonged.” To the same effect is Illinois Central Railroad Co. v. O’Connor, 154 Ill. 550.

It is clear from these authorities that appellee acquired the right to use said 200-foot strip absolutely for railroad right of way purposes, and that the appellant, as grantee of Douglas or otherwise, had or could acquire no interest therein which he could assert as against the appellee so long as the strip was used by the appellee for railroad right of way-purposes, unless the right of the appellee to use the same is limited in some way by the deed from Douglas to it; and this brings us to the main contention of appellant, which is, that by the use of the words found in the deed, “for the purpose of constructing, maintaining and operating thereon a single or double track railroad,” the appellee is'so limited in the use of said strip that it cannot maintain thereon any track or track's in excess of “a single or double track railroad” without being held to have placed an additional burden upon the fee, for which the appellant is entitled to recover damages in the nature of compensation.

We cannot accede to this view. The grant' by Douglas to the appellee was of a strip 200 feet wide across- his land for right of way purposes. This grant was absolute and without limitation, and the words, “for the purpose of constructing, maintaining and operating thereon a single or double track railroad,” cannot be held to restrict or limit that use. Had the grantee provided in the deed that no other track than a single or double track railroad should be ever constructed upon said 200-foot strip there would be force in the contention of the appellant, but such language is not found in the deed. The general rule is, that words following the granting clause of a deed which state the use to which the property granted is to be put are not restrictions or limitations upon its use unless it is specifically so stated to be in the deed. (Board of Supervisors of Warren County v. Patterson, 56 Ill. 133; Downen v. Rayburn, 214 id. 342.) The rule above announced is usually held to apply only where a fee has been conveyed. Still, in a case like this, where the use of the strip has been conveyed for railroad right of way purposes, and its exclusive possession is necessarily- to be vested in the railroad company to fulfill the object of the grant so long as it shall be used for railroad right of way purposes, we are of the opinion no reason exists why such rule should not be applied to such conveyance.

The rule is also well settled that in construing written instruments all parts of the instrument should be considered in arriving at the intention of the parties thereto, and when the intention of the parties is ascertained it will be carried out. If this entire instrument, which amounts to something more than a deed, is considered, we think it is clear that the grantor intended to convey to the appellee the entire 200 feet for right of way purposes, and that he did not intend to limit the appellee in its use thereof to a 16-foot strip, which would be the effect of the grant if the contention of appellant were sustained. The deed provides “the same,”-—that is, the 200-foot strip,—shall be held by the appellee, “their successors and assigns forever, for all lawful uses and purposes for which the right of way could have been obtained in pursuance of the charter of said company,” and the contention of the appellant that the'only grant made to the appellee was the right to use said strip upon which to construct, operate and maintain “a single or double track railroad,” with its appurtenances, is too narrow, and is inconsistent with all the provisions found in the deed from Douglas to appellee, with the exception of the words, “for the purpose of constructing, maintaining and operating thereon a single or double track railroad,” when segregated from the context. In construing a deed or other instrument in writing it is not permissible to select a few words from the instrument and base a construction thereof upon a consideration of those words alone, but the entire instrument should be considered. An elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties and the intention which they have manifested in forming them. O’Brien v. Miller, 168 U. S. 287.

It appears from the declaration the agreement to convey was executed by Douglas on July 27, 1852, and that the deed was executed on February 25, 1853; that two tracks were placed upon the right of way subsequent to the contract and prior to the execution of the deed; that since the year 1879 the said railroad company has constructed and operated on said right of way eleven tracks more than the two above mentioned, without permission or consent of any kind from said Douglas or any one claiming under him, including the appellant; that one of said tracks was constructed in the year 1880, that two were constructed in the year 1883 and others in the year 1888. It thus appears that the railroad company, by its course of action in constructing and operating these various tracks, showed that it construed the deed as giving it full authority to place as many tracks on said strip as it saw fit and to take exclusive possession of said 200-foot strip for right of way purposes. The appellant claims to have been the owner of the fee in this right of way since January, 1878. During all the time intervening between that time and the bringing of this suit on the 16th day of December, 1899, from aught that appears he stood by and made no protest to the construction placed on the deed by the railroad company. We think this is strong evidence that he construed the deed, himself-, in the same manner as the railroad company had done. A contract is to be taken in the sense in which it was in fact understood by one of the parties to the knowledge of the other, when a new contract will not be made thereby. (Street v. Chicago Wharfing and Storage Co. 157 Ill. 605.) It is allowable always to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable. (Vermont Street M. E. Church v. Brose, 104 Ill. 206.) A reasonable construction placed upon an indefinite or uncertain contract by the conduct of the parties will be adopted by the courts. Work v. Welsh, 160 Ill. 468.

From a full consideration of this record we are of the opinion that the trial court did not err in sustaining a demurrer to said declaration.

The judgment of the superior court will be affirmed.

Judgment affirmed.