Williams v. Hart

Endicott, J. The deed recites that the conveyance is made to enable the grantee to build its railroad over the land described, subject to certain provisions which are set forth. One of the provisions is that the grantee shall furnish to the grantor two crossings over the land conveyed and the railroad to be built thereon; one at grade and the other by a bridge at or near certain stations which are named, but “ the precise spots (where they shall be constructed) to be hereafter designated ” by the grantor. The bill alleges that the crossings were intended to provide passages across the railroad for the benefit and improvement of the adjoining land of the grantor, on each side of the parcels conveyed. The deed is dated May 14,1853. The railroad was built in 1855. The grantor owned the adjoining lands till his death in 1864, but never designated the spots where the crossings should be constructed by the grantee. The plaintiff, who is the heir at law of the grantor, has been in possession of the adjoining lands since his death, and, having designated to the defendants the spot where she desires the bridge to be built, and they, having neglected to construct it, she filed this bill February 25, 1873, for specific performance of this provision of the deed. It does not appear that any spot has ever been designated for the grade crossing, or that it has ever been constructed. It is not necessary to consider many o£ the questions argued at the bar. The point taken, that the spot was not designated within a reasonable time is decisive of the case. The fair construction of the deed is that the grantee shall not be obliged to furnish or construct the bridge till the spot is designated by the grantor. Where there is a condition to do a thing upon the performance of an act by the grantor, which is secret and lies within his own breast, the performance is excused till the grantor gives notice of the act. Com. Dig. Condition L. 8. When the notice is given, the obligation on the grantee in this case would be complete, and the bridge must be built within a reasonable time. As where a grantee, by a condition in a deed, is to do some act, as to build a school-house for the public, or a dwelling-house for the grantor, he must do the act within a reasonable or convenient time; if not, there is a breach. Hayden v. Stoughton, 5 Pick. 528. Hamilton v. Elliott, 5 S. & R. 375. [515] Taking the peculiar facts of this case, the purposes of the grant and the uses to which this land was to be subjected, we are of opinion that the same rule applies. The particular act which the grantor here undertook to do, and which it was necessary he should do, to render the obligation to build the bridge complete on the part of the grantee, depended solely upon himself; he could select his own mode and time for carrying out his agreement; no time being limited, the law implies an agreement to do it within a reasonable time under the circumstances. Atwood v. Cobb, 16 Pick. 227, 231. Gardner v. Corey, 11 Gray, 30. Ford v. Cotesworth, L. R. 4 Q. B. 127, 133. 'fhe spot was not designated within a reasonable time. The demurrer must be sustained, and, by the terms of the reservation, the entry will be Bill dismissed.