Kraeer v. Pennsylvania Railroad

Opinion by Mr. Justice Elkin, The rights of the plaintiffs accrue under a covenant in the deed of their predecessor in title conveying to the railroad company a right of way. “The company to provide four suitable farm crossings at places to be designated by Mr. Henry,” is the covenant upon which the appellees rely to sustain their contention. The right to the crossing does not depend upon any statutory authority, but is of contractual origin. The owner of the land at the time the deed of right of way was executed and delivered,'and as a part of the consideration therefor, reserved to himself and to his successors in title four farm crossings to be provided by the railroad company, but only one of the crossings has ever been demanded or provided. The appellant now claims the right to tear up ahd destroy the one crossing which has been maintained by the railroad company and used by the plaintiffs for a long period of time. The ground upon which appellant undertakes to assert its right to tear up and destroy the crossing is that the present use being made of it is not within the meaning of the covenant in the deed providing for a farm crossing. The effort is made to limit the rights of the parties under the deed to the use of the crossing for farm purposes. Alleging that the crossing is not used for farm purposes, the railroad claims the right to destroy it for any purpose. Hall v. Clearfield and Mahoning Railway Company, 168 Pa. 64, The Republic Iron Works v. Burgwin, 139 Pa. 439 are relied on to support this contention. An examination of these cases has convinced us that they are not authority for. the position taken by appellant. In Hall v. Railway Company, the agreement for the right of way contained a stipulation “that said railway company shall construct and maintain a good and sufficient crossing over the right of way on said premises.” Prior to the construction of the crossing the railway company prepared a deed ini' which no mention was made of the crossing, and the land [573] owner refused to execute the same on the ground that the stipulation for a crossing had been omitted. The landowner then tendered a deed to the railroad company, reserving a sufficient crossing over the right of way, “ so that the occupant or occupants of the said premises of the parties of the first part may cross or pass over the said railroad on the premises with wagons, carts and implements of husbandry as the occasion may require.” It will be observed that no question was raised in that case as to the meaning of the words “ farm crossing.” The covenant in the agreement was for “a good and sufficient crossing,” and the court below held that the deed tendered by the landowner was in compliance with the terms of the agreement. That case turned not upon the kind of a crossing reserved, but upon the question whether the covenant in the agreement requiring a sufficient crossing to be provided ran with the deed, or whether it was independent of and disconnected with the right of way. It was held that the covenant ran with the deed and the landowner was entitled to have it inserted therein. It has been many times said, and we now repeat, that all contracts made by a railroad company with the landowner whereby privileges are wholly or in part obtained without condemnation are favorably regarded by the courts and will be construed strongly in favor of the landowner: Mount Pleasant Coal Co. v. Railroad Co., 200 Pa. 434; Neff v. Railroad Co., 202 Pa. 371; Kaul v. Weed, 203 Pa. 586; Mills on Eminent Domain, sec. 110. The learned court below found as a fact that the parties themselves placed a construction upon the covenant by permitting the use of it for a long period of years in the usual manner of passing over a right of way. Having placed their own construction upon the covenant, it is now too late to disclaim the use made of the crossing in which the company acquiesced for so long a time. The owners of the land have been using the crossing under the covenant in the deed since 1858, and the presumption necessarily arises that all of the parties considered the use made of it such as was contemplated by the covenant to provide a farm crossing. We have carefully examined this case and concur in the findings of fact and conclusions of law stated in the opinion of the learned court below. Decree affirmed, costs to be paid by appellant.