Yazoo & M. v. R. Co. v. Hughes

McGowe.n, J., delivered the opinion of the court. This appeal was prosecuted from a decree overruling. the demurrer of the appellant, the Yazoo &• Mississippi Valley Eailroad Company, defendant in the court below, to the original bill of the appellee, Mrs. Hughes, and appeal was granted to settle the principles of the cause. The facts set out in the bill, material to a decision of this cause, are about as follows: That complainant, Mrs. Hughes, then Mrs. Beck, on or about the 26th day of April, 1888, owned a tract of land in Warren county, west of the right of way of the railroad, company and north of Glass bayou. Glass bayou, adjacent to the Hughes property, is the north limit of the city of Vicksburg. The property slopes from the railroad down to the Mississippi river. The railroad company had a right of way through the property from its north line to its south line, and there were two roadways over and across the right of way of the company; one at the south end of complainant’s property, and the other at the north end, the south roadway leading into Washington street. Between the south roadway and the cemetery road Mrs. Hughes then owned a triangular-shaped piece of ground. Along this place the railroad company desired *184 to widen its right of way and purchased from Mrs. Hughes, for the consideration of one thousand dollars, a strip of ground ten feet wide from the center of the main track and twenty feet eastward, or to the National Cemetery road. The bill further alleges that the only means of ingress and egress through the property of Mrs. Hughes was oygr these two roadways at the north and south ends of her property; that these two roadways were essential to ingress and egress to and from her property, and the only means of so doing except by the river landing that the railroad company had been operating a railroad for some time prior to the execution of this deed; that its right of way was very narrow through a part of Mrs. Hughes’ land; that complainant’s property sloped west of the railroad right of way down to the river. The deed clearly shows that the railroad company had a right to fill in with dirt on the west side to preserve its tracks to the point of encroachment beyond the right of way on complainant’s property. The deed further provides that the railroad company would not have any rights on the water front for landings or wharfage, but the grantor in the deed was to have the free use of the water front. It is further provided in said deed that — “The railway company shall maintain and keep open for ingress and egress from said property west of its tracks its two roads or crossings now over or across its said track on said land, so far as the same extends across its said right of way, one near the north end of said land and the other near the south end thereof.” Complainant further charged that the defendant in the last ten years had raised and elevated its tracks, roadbed, and embankment to a considerable height above their former level, extended the base of its embankment to a great degree on the property of the complainant, and further that the defendant railroad company had absolutely closed and destroyed the roadway or crossing in said *185 ten years, over its tracks at the south end of complainant’s property, and that defendant had by its said conduct as aforesaid made the roadway or crossing at the north end of complainant’s property more difficult to get over; that the value of complainant’s property was damaged, and the income lessened, by the raising of the grade and the failure to maintain the crossing; that the north end was rendered inconvenient, and that said raising of said roadbed was without her consent and over her protest; that there is no other way of reaching the public road from complainant’s property except over these road crossings; that the destruction of the south road and the impairment of the north road crossings caused complainant irreparable damage; and she prayed for an enforcement of the provisions of the deed and for a mandatory injunction requiring the railroad company to reduce its tracks and restore said roadways or crossings over the right of way north and south of complainant’s said property. The sole and only question presented to this court for decision is the construction of the words in the deed— “and the said railway company shall maintain and keep open for ingress and egress from said property west of its tracks its two roads or crossings now over or across its said track on said land, so far as the same extends across its said right of way, one near the north end of said land and the other near the south end thereof”— whether these words constitute a limitation upon the general power of the railroad company to use its right of way for any purpose within the scope of the purposes for which the land was acquired, or whether the railroad company had by contract agreed to maintain and keep open for ingress and egress these two road crossings over its right of way. In Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 105 Am. St. Rep. 428, 65 L. R. A. 561, this cOurt said: “It [referring to the railroad right of way] has the right to do all things with its right of way, within the *186 scope of its charter powers, which may be found essential or incidental to its full and complete use for the purpose for which it was acquired.” To the same effect is Railroad v. Brown, 64 Miss. 479, 1 So. 637; Railroad v. Stingily, 111 Miss. 237, 71 So. 376, all of which were referred to and approved in Moore v. Swamp Dredging Co., 125 Miss. 842, 88 So. 522. Reaffirming the above rule, and applying same here, we find that by this deed, excerpts from which we quoted above, the railroad company contracted explicitly and without any ambiguity to maintain and keep' open for ingress and egress these two crossings, and railroad companies may, like individuals, make contracts, and it may be said that a part of the consideration of the deed here in question made by the complainant to the railroad company was this very valuable right of ingress and egress. Apparently the chancellor so construed the deed. Our attention has not been called to any reason why this very clear and explicit language should not have full force and effect. We think! the acceptance of the deed and of the privileges thereunder devolved upon the railroad company the absolute duty to keep open and maintain these crossings, and it must be held to its contract, even if it were necessary so to do to reduce its grade so that the easements acquired and retained, valuable as they are alleged to be by the complainant, may 'be freely exercised. We think the court below was correct in overruling- the demurrer, and the cause is therefore affirmed and remanded. Affirmed and remanded.