Hileman v. Chicago Great Western Railway Co.

Shekwin, J. [592] The main question before us for determination is the effect to be given the written instrument set out in the statement of the case. The plaintiff, in effect, contends that it is nothing more than a receipt for damages [593] paid for the location of a single track in front of the plaintiff’s property. It must be conceded at the threshold of this inquiry that the plaintiff’s grantor, Cornell, originally had an easement in the street in question, which was a property right, and that he could sell and convey or release such right, and deal with it in all respects as he could with any other property right or interest. While he had no title to or right in the soil of the street, his conveyance or release of his easement therein was valid and binding under all ■authorities. And it must also be conceded that Cornell conveyed to the Chicago, St. Paul and Kansas City Railway Company the right to the use of Bluff street for the purpose of constructing, operating and maintaining its railway therein, so far as such use might or could interfere with his easement therein. And it will be noted also that he released the company “from all damage” to his property abutting thereon. Suppose Cornell had made a similar conveyance to the company of a right of way four rods wide through his farm; what would be the rights of the company ? It is well settled that the conveyance of land for railroad purposes -will ordinarily vest in 'the grantee the same rights as though the land had been acquired by condemnation. (Lewis, Eminent Domain (2d ed.) section 293; Roushlange v. Railway Co., 115 Ind. 106 (17 N. E. Rep. 198) ; and “the conveyance will be held to be a release of all damages which would be presumed to be included in the award of damages if the property had been condemned” (Lewis, Eminent Domain (2d ed.) section 293, and the eases cited; Railroad Co. v. Smith, 111 Ill. 363; Norris v. Railroad Co., 28 Vt. 99; McCarty v. Railway Co., 31 Minn. 278 (17 N. W. Rep, 616). It is the almost universal rule that in condemnation proceedings the damages are to be assessed once for all, and, when once assessed, “they include all the injuries which may result for all time to come from the construction and operation of the road in a reasonable and proper manner.” Lewis, Eminent Domain (2d ed.), section 565; Fowle v. Northampton Co., 112 Mass. 331; Dearborn v. Railroad [594] Co. 24 N. H.. 179; Water-Power Co. v. Chambers, 13 N. J. Eq. 119; Tucker v. Railroad Co., 27 Pa. 281; Joy v. Water Co., 85 Me. 109 (26 Atl. Rep. 1052) ; While v. Railroad Co., 122 Ind. Sup. 317 (23 N. E. Rep. 782). If in the conveyance or in the condemnation no limit is placed upon the use of the easement, its use may be changed or increased, so long -as “due care and skill” are exercised in so doing, without liability for additional damages. Lewis, Eminent Domain(2d. ed.), section 575; Cassidy v. Railroad Co., 141 Mass. 174 (5 N. E. Rep. 142); Butman v. Railroad Co., 27 Vt. 500; Hummel v. Railroad Co., 175 Pa. 537 (34 Atl. Rep. 848) ; While v. Railroad Co., 122 Ind. Sup. 317 (23 N. E. Rep. 782). There is no limitation in the conveyance and release of Cornell to the company; hence any legitimate increase in the use of the street for the operquestion was necessary and proper to the operation of deation of its road is covered thereby. That the side track in fndant’s road, no one questions; and, indeed, it is generally recognized by the authorities that additional tracks and side tracks are, or at least may become, a necessity, and that they are within the contemplation of a condemnation, and the damage therefor. Railroad Co. v. Smith, 111 Ill. 363; White v. Railroad Co., 122 Ind. Sup. 317 (23 N. E. Rep. 782). There can be no question that the plaintiff is bound by the act of her grantor, and can have no greater claim than he could enforce. No question of the abandonment of defendant’s right under the statute is in the case, though discussed somewhat by the plaintiff’s counsel. It is very evident, however, that such a plea would be of no avail in this case, because the defendant not only holds under a grant as against plaintiff, but has been in the actual operation of its road all of the time since. It follows from what we have said that the plaintiff was not entitled to recover, and that the court erred in not sustaining' the defendant’s motion to direct a verdict, and erred in the instructions given numbered 5, 7, and 9. The judgment is reversed.