Wallace v. Ann Arbor & Ypsilanti Electric Railway Co.

Grant, C. J. (after stating the facts). 1. Counsel cites several authorities to the effect that such an agreement does not run with the land, and is not binding upon the purchaser of the rights, franchises, etc., of the old company, in the absence of a statute or contract making [590] such purchaser liable. That is undoubtedly the rule. Dickey v. Railway Co., 122 Mo. 223; Martin v. Railroad Co., 36 N. J. Eq. 109; Helton v. Railway Co., 25 Mo. App. 322; Hoard v. Railway, 123 U. S. 222; Eddy v. Hinnant, 82 Tex. 354. Did the defendant assume this liability ? The record is very meager and unsatisfactory upon this point. The only evidence is a bill of sale attached to the bill of complaint, and admitted by the answer and the testimony of the vice-president of the old company. The bill of sale contains nothing which is conclusive upon the point, or inconsistent with the assumption by the new company of contracts for the rights of way. The vice-president testified that “when these franchises, rights, leases, and leaseholds and interests were purchased by the electric company, * * * they were bought subject to all the conditions attached to the old company.” He further told Mrs. Wallace that the transaction was nothing more than a consolidation of the old and new companies. We think this made out a prima facie case of consolidation, under which the consolidated company succeeds to all the rights and obligations of the old company. 2. The old company’s line extended only to the limits of the city of Ann Arbor. Another company owned the railway line in the city. The two connected. ' Eor several years the street-railway company of Ann Arbor passed complainant over its road into the city. The decree compelled the defendant to carry complainant over the road in the city, the defendant having also purchased the property and franchises of that company. The decree in this respect was wrong. The railway which issued to complainant her pass had no control over the road in the city. The fact that for several years complainant had traveled over that road on her pass does not bind the defendant. The contract was unambiguous, and by its plain terms gave her the right of travel only over the road of the old company. Pennsylvania Co. v. Erie & Pittsburgh Co., 108 Pa. St. 621. [591] 3. We doubt whether a suit in chancery is the proper Temedy to enforce complainant’s rights. While the court below evidently treated the bill as one for specific performance of a contract, it is not framed upon that basis. There are authorities which hold that this is not the proper remedy. Ruddick v. Railway Co., 116 Mo. 26 (38 Am. St. Rep. 570); Martin v. Railroad Co., 36 N. J. Eq. 109; Helton v. Railway Co., 25 Mo. App. 322; Eddy v. Hinnant, 82 Tes. 354; Cook v. Railway Co., 36 Wis. 45. But inasmuch as the question is not raised, and the defendant has seen fit to meet the question upon its merits, we do not decide the question. We mention it simply ■that it may not be understood by the profession that we Tecognize this as the proper remedy. The decree will be modified in accordance with this «opinion. Neither party will he allowed costs in this court. The other Justices concurred.