Lilley v. Pittsburg, Virginia & Charleston Railway Co.

Opinion by. Mr. Justice Mestrezat, The learned trial judge has found and clearly stated all the material facts of the case and in his opinion has fully vindicated the decree which he directed to be entered. The only question in this case is the right of the defendant [251] company to condemn the four grade crossings which the plaintiff claims he is entitled to under the contract of April 12,1876. It is clear, we think, that this is a severable and not an entire contract. The clause relating to the damages and the wagon roads across the tracks to be given Mr. Lilley maybe omitted from the contract and still the grant of the right of way will have a valuable consideration to support it and be enforceable against the grantor. The conveyance is complete without this clause, and vests in the railroad company the easement through the farm of Mr. Lilley. The only plausible theory, and the correct interpretation of the contract, therefore, is that suggested by the trial judge that the release of damages was intended to release the railway company from any damages which, by the construction of the railroad, might result to that part of the farm outside the right of way. These damages may have been released by the grant of the easement, as has been held in some jurisdictions, but the parties thought the release necessary to relieve the company from damages and for that reason it was inserted in the conveyance. Following the release is the proviso, the several matters in which clearly constitute the consideration for the execution of the release and not, as claimed by the plaintiff, for the grant of the right of way. The contract did not provide that the $250.00 should be paid, the cattle guards should bo constructed, and the company should give Mr. Lilley the wagon roads over its tracks as a consideration for the conveyance of the right of way, but, on the contrary, it expressly sets forth that the grant of the right of way was made “for and in consideration of the benefits and advantages to me from the construction of its railway through my land.” The money to be paid and the acts to be done, as required in the proviso, must, therefore, bo regarded as the consideration for the release of damages for injuries done the plaintiff’s farm outside the appropriation for the right of way for the construction of the defendant’s road. The right to the wagon roads over the defendant’s tracks, acquired as the consideration for the release of damages, was the property of Mr. Lilley, and could be appropriated by the defendant company under the Act of March 17, 1869, P. L. 12 : 2 Purd. 1798. The crossings were easements or private rights of way and as such may be taken by the company under the [252] statute. In doing so the defendant is not repudiating or rescinding the contract of April 12, 1876, as contended by tbe learned counsel for the plaintiff, but simply appropriating for its legitimate use the property of the plaintiff in accordance with the laws of the state. Ia Jones v. Pittsburg, etc., Railroad Company, 11 Pa. Superior Ct. 202, it was held that a railway company could, under • the act of 1869, appropriate a part of a private right of way, which the company had agreed not to interfere with in the contract made with the owner of the land by virtue of which it had acquired its right of- way. In that case it is said by Rice, P. J., delivering the opinion: “ The right of a railroad company to make the necessary improvements contemplated by the act of 1869 was intended in large measure to be exercised for the public good and it will not be presumed in the absence of clear words that the company intended to barter away that right and thus disable itself wholly or in part to perform those public functions it has undertaken.” We see no error in the record, and, therefore, the decree of the court below is affirmed.