Yost v. Schuylkill Navigation Co.

Opinion, Mr. Justice Williams : The company defendant was incorporated in 1815, and completed the construction of its canal in 1825. One of the dams constructed by it in the Schuylkill river was located about two miles below the city of Heading. The farms of Nicholas Yost and Henry Gring lay on the west side of the river about midway between the dam and the city. Both farms embraced land extending back from the river, together with land upon an island formed by a narrow channel of the river known as Mifflin’s Arm. The main stream flowed on the east side of the island and the towing path of the canal was on the east side of the main stream. The building of the dam raised the water-level along the lands of Yost and Gring in the narrow channel, and in the main stream, to a depth of about six feet. Yost instituted proceedings under the act of incorporation for the purpose of having damages assessed to him for the injury done by the dam, and an award was made from which the company ap [162] pealed. The damages were finally fixed by agreement at seven hundred and fifty dollars and paid to Yost. Again in 1842 when the canal was enlarged proceedings were instituted by Yost to have his additional damages assessed, which resulted in an award of two hundred and fifty dollars, which was also paid. Henry Gring appears to have made an amicable settlement with the company in 1826, by an agreement, in writing, bearing date of December*25, 1826. By the terms of this agreement his damages, by reason of the erection of the dam, were fixed at one hundred and ten dollars. The contract then provided that whenever a guard-lock should be built at the end of the island to connect the Schuylkill with the Union Canal, Gring should make a deed to the navigation company for one acre of land for purposes of a gate-house and garden, and proceeded thus: “ In consideration whereof the said president, managers, and company promise to pay to the said Henry Gring, his heirs, executors, administrators, and assigns, the sum of forty dollars upon such deed as aforesaid being executed .....and to build a bridge forthwith on the line between the said Henry Gring and Nicholas Yost to enable the said Gring and Yost to pass and repass from and to the island across the canal.” The canal thus referred to is Mifflin’s Arm, which it was proposed to use as a means of connection with the Union Canal. The stipulation stands as part of the consideration for the deed of one acre of land at the end of the island, and the use of it for a guard-lock, etc., including doubtless the inconvenience to result from the passage of boats through the Arm. The guard-lock was built, the deed made, the gate-house erected, and for several years the Arm was used for the passage of boats. The company also erected a bridge in accordance with the agreement, and maintained it for many years. In 1850 the guard-lock and gate-house were abandoned, and Mifflin’s Arm ceased to be used for the passage of boats. In 1869 the bridge over the Arm was swept away and the company has since declined to rebuild it. This action is brought by Yost, who has added to his part of the island a few acres purchased from Gring, so that the eastern end of the bridge would be in the field of Yost instead of upon the line of farms. [163] Tlie plaintiff cannot recover unless lie can show that the company is under a statutory obligation to maintain the bridge, or has become bound by contract to do so. But the canal of the defendant does not cross tlie land of the plaintiff. The temporary use of Mifflin’s Arm for the passage of boats as a means of connection with the Union Canal, was discontinued in 1850. The damages done by reason of the deepening of the water have been paid after an adjustment of their amount by agreement or by legal proceedings. The statutory obligations growing out of the exercise of the right of eminent domain are therefore fully discharged. Mifflin’s Arm is not a part of the canal, either in law or fact, and when so used, temporarily, a bridge was constructed over it and maintained for the joint use of Yost and Gring. If we turn to the contract we find that it contains an agreement to build only. There is no covenant to rebuild or to maintain. It would seem that both parties understood the use of Mifflin’s Arm was a temporary expedient, not likely to be long continued, and not justifying a covenant to maintain the bridge indefinitely. However that may be, the contract contains no such covenant nor any words from which such covenant can be inferred, except those we have quoted above, “ and to build a bridge forthwith on the line between the said Gring and Nicholas Yost, to enable the said Gring and Yost to pass and repass from and to the island across the canal.” It is conceded that this was done, and that the bridge was maintained for many years after the use of the Arm was discontinued, the stone work of the guard-lock removed and the gate-house abandoned. This was a compliance with the contract. It was performance according to the letter, and if the contract be regarded in the light thrown on its stipulations by the evidence, it was performance according to the spirit of the agreement. The learned judge of the court below was right in his rulings on the trial and the judgment must therefore be Affirmed.