Rathbone v. Tioga Navigation Co.

The opinion of the Court was delivered by Kennedy, J. A number of errors have been assigned, some of which are exceptions to the general charge delivered by the court below to the jury; and the rest are exceptions to answers given by the court to points submitted by the counsel of the complainant. The charge delivered by the president of the court (Conyng [78] ham,) is certainly not only correct, but excellent in every respect, so far as it is applicable to this case. Whether the company had by the deed of grant, bargain and sale to them, from the owners of the lands through and upon which the rail-road has been constructed, obtained thereby the consent of the owners respectively, to pass through their buildings thereon, with the rail-road, in case it should be found expedient to do so, is a question which, as it did not arise in the case, though the court below have noticed it by saying it might be so, without giving any decisive opinion upon it, we shall therefore avoid passing upon it. Being satisfied also with the reasoning of the court, as well as with their conclusions in regard to the various questions raised on the trial of the cause, we shall do but little more than adopt what the court have said. It has been urged with great plausibility, and in a manner perhaps somewhat more imposing here than that which was exhibited in the court below, that the answer of the court to the plaintiff’s second point is erroneous, and especially in not answering that portion of it, whereby the court were requested to instruct the jury that the release (meaning the deed of bargain and sale,) was inoperative, on the ground, among others therein mentioned, “that Curtis Parkhurst being only a commissioner authorized to receive subscriptions for stock, was not authorized to procure releases; that the company never having elected their officers, were not organized, and therefore were not capable of making a contract, or even receiving a grant of the nature contained in the deed.” Now if it can be shown that it was competent for the company, after they became completely organized by the election and appointment of proper officers, by means of whom they were to act as a corporation, to accept of the deed so as to entitle themselves to the benefit of it, the conclusion would seem to be inevitable that they could only avail themselves of it, by becoming bound to observe and perform on their part everything therein, either expressly or impliedly contained, as forming any part of the consideration for conceding to the company the advantages set forth in the deed. The most formidable objection raised against the efficacy of the deed, seems to be that it'contained a grant of a freehold estate in lands, upon certain terms and conditions therein specified; and as the company, at the time of its execution, were not organized, and therefore not in being for the purpose, as it is contended, of accepting the grant upon the terms therein mentioned, the deed could not have any immediate operation for want of the assent of the grantee; nor could it have any future operation so as to pass the title of the land, because that would be in violation of the rule of law, which declares that a freehold estate can not be created by deed to commence in futuro. Indeed the counsel of the complainant appeared disposed to go still further, by denying the existence of the defendants altogether, at the time of the signing and sealing of the deed; and that if the grantee [79] were not in rerum natura at the time, it was manifest that the grant contained in the deed could not take effect; nor.indeed could it be considered a deed at all, seeing there was no grantee in being to whom, or for whose use it could be delivered; and that without delivery, though signed and sealed by the plaintiff, yet it could not possibly be his deed, as delivery was essentially necessary to make it so. But if a rail-road made by a corporation constituted for that purpose, with a view to accommodate the public by transporting passengers and goods upon it when requested, is to be regarded as a public highway, the grant contained in the deed may be good without any specific grantee in esse at the time, to whom the fee could be conveyed. See 3 Kent Comm. 450, and the cases referred to there in note. That such a rail-road is so considered, is abundantly clear from the opinion of this court, delivered by the Chief Justice in The Philadelphia and Trenton Rail-road Company, (6 Whart. Rep. 43-46). It is in reality a road made for the use of the public, by a company incorporated specially for that purpose, who construct it with their own funds, but have a license from the public to remunerate themselves for doing so, by charging and receiving tolls from passengers and the owners of goods transported thereon. But it is not strictly correct, either in fact or in law, in this case, to say that the company was not in being at the time of the signing and sealing of the deed; for they received some days previously, from the governor of the state, letters patent, incorporating them by the name of “ The Tioga Navigation Company,” in conformity to an Act of Assembly passed for that specific purpose. And the letters having been granted thus at the special request of the corporators themselves, according to the direction of a special Act of the Legislature passed in that behalf, rendered a formal acceptance of the charter by them unnecessary. The subscribers for stock, whose names were presented to the governor as such, became incorporated immediately upon the execution of the letters patent by the governor, although their constitution may in some degree have been incomplete until the officers were appointed; so that even if it had been necessary, in order to have rendered the grant contained in the deed, effectual, that the grantee therein named should have been in existence at the time, it was so; and the delivery of the deed to Mr Parkhurst for the use and benefit of the company, was a good delivery of it to the company. That the company approved and accepted it, might in the absence of proof to the contrary, be fairly presumed, seeing it appears plainly on its face, to confer a benefit upon them; but it is unnecessary to make or rely upon such a presumption, as the company have expressly asserted their right to the land under it. The company then having accepted the deed after they were completely organized, became thereby bound to observe and fulfil on their part, all the terms and conditions upon which it would appear to have [80] been executed. For instance, if they, in locating or constructing the road, interfered in anyway with the buildings of the plaintiff, so as to occasion any loss or damage to him, they ought to repair it under the obligation arising from the acceptance of the deed; and if they have or do not, he may maintain an action of assumpsit against them on account thereof; or if they have failed to make any fences connected with the grant of the land to them by the plaintiff, he may also maintain his action against them in like manner, for such failure. These matters cannot be considered as conditions annexed to the grant of the land, which would go, as was suggested in the course of the argument by the plaintiffs counsel, to avoid it in case of a non-observance and a non-performance of them' by the defendants, because there is nothing on the face of the deed going to show that such was the intention. Neither is it necessary, as was also said, in order to maintain an action against the company for the non-performance of their engagement in respect to these matters, that the plaintiff should have such engagement from them in writing, under their corporate seal; because it was held by this court in The Chesnut-Hill Turnpike Company v. Rutter, (4 Serg. & Rawle 16), that a corporation may, without seal, become bound, either by an express or implied contract, and that assumpsit will lie against it for a breach thereof. Judgment affirmed.