Minneapolis & St. Louis Railway Co. v. St. Paul, Minneapolis & Manitoba Railway Co.

Gileillan, C. J. The objections to evidence insisted on here are based on the proposition that it was incompetent to prove by parol [274] the relocation of the line to be used by defendant within the general limits of the right of way granted, ¡ d the acts of the parties pursuant to such relocation; and as we .old that those matters might be proved by parol, the objections we; ' not well founded. We see no reason to question the coi -ectness of findings of fact by the court below. The contract of August 27, 1874, between what in this case is designated the Pacific Company and the Minneapolis & St. Louis Company, is conceded to be valid and binding on the parties hereto. JSy that contract the Pacific Company leased to the St. Louis Company, “and to its successors and assigns, forever, the right to build, maintain, and operate a single track railroad” upon the lands of the Pacific Company between certain points, the track to be built south-eastwardly of and parallel with the main track of the Pacific Company as then constructed, and at a safe and proper distance from the same, and to be located, built, and its grade established under the control and direction of the superintendent of the Pacific Company; the track, when built, to be taken charge of, kept up, and controlled by the Pacific Company, and both that and the main track of the Pacific Company to be jointly used by the trains and cars of both companies in such manner and under such rules and regulations as might from time to time be prescribed by the superintendent of the Pacific Company, having reference to safety and the prevention of accidents, etc. The contract contains other covenants and agreements on the part of each of the contracting parties. The contract does not precisely locate the line along which the track should be built. The land over which the right of way granted is to extend is defined only generally, to wit, the land of the Pacific Company south-eastwardly of its main track between the points designated. Had the contract contained no provision regulating the use of the right of way, nor for locating its precise line, the St. Louis Company would probably have had a right of election (to be reasonably exercised in view of all the provisions in the contract) to lay the track on any part of the thus generally described right of way. But the contract provides that the track shall be located, built, and its grade established under the control and direction of the superintend [275] ent of the Pacific Company. When it was thus located, and the track constructed accordingly, neither party could, without the consent of the other, change its location or require it to be changed. A location of it by the superintendent upon the line to which it was afterwards changed would have been within the terms of the contract, and within the general limits of the right of way. The tract was constructed where at first located by the superintendent, and it was used jointly till 1878, when, pursuant to oral agreement between the St. Louis Company and one Farley, general manager of the Pacific Company’s road for the trustees in its mortgages in possession, the latter built another track southerly and at some distance from the first, to be used by the St. Louis Company in lieu of and as a substitute for the track it bad constructed. The latter company adopted and ever aft-erwards used that as its track, and abandoned the use of the track constructed by it, and since that time the latter track has been used solely by defendant. We see no reason to doubt that by mutual consent the parties could relocate the line to be used by the St. Louis Company, after it had been once located, and that if the line as relocated were within the general definition for the right of way contained in the contract, it would be within the contract, and would be held and enjoyed under and be dependent on it, and that no new written contract would be necessary to assure the St. Louis Company in the use and enjoyment of it. It is immaterial whether Farley had authority to agree to a change in the location of the track; for, if without authority originally, his agreement and acts might become binding by ratification; and the acquiescence for six years by defendant in the change of track is a ratification. It follows from what we have said that the defendant has no right to interfere with the St. Louis Company’s use and enjoyment of the track thus substituted for its original track. But, says the defendant, the rights and privileges granted to the St. Louis Company were by the express terms of the contract of 1874 not assignable, and this plaintiff, not being the original St. Louis Company with which that contract was made, but being a consolida [276] tion or aggregation of several other railroad companies with the original St. Louis Company constituting a different company, it can claim under the contract only as assignee of the St. Louis Company. The lease of the right of way was to the St. Louis Company, “and to its successors and assigns, for ever.” The ninth paragraph of the contract is: “Each and every covenant, promise, and agreement contained in this instrument shall bind the successors and assigns of the respective parties hereto to the same extent as if such successors and assigns had been specially named therein.” And the tenth paragraph is: “It is stipulated and agreed by and between the parties hereto that none of the rights or privileges hereby leased or granted to the party of the second part shall be transferred, assigned, or sublet to or permitted to be used or enjoyed by any other person, company, or corporation except the Minneapolis & Duluth Railroad Company, which last-named company may use and enjoy the same so long as it is controlled and operated by said party of the second part, and no longer.” Apparently there is an inconsistency between the intent expressed in defining the right granted, and also in paragraph 9 and the intent expressed in paragraph 10. If this inconsistency could not be reconciled so that the several provisions might stand, it would have to be removed by application of the rule that where a deed grants an estate, and contains a reservation, exception, or condition repugnant to the grant, — that is, tending to destroy it, — the reservation, exception, or condition must be rejected. But an interpretation of these various clauses with reference to the subject-matter of the contract, and the business and situation of the parties, will render the application of this extreme rule unnecessary, and leave each of the clauses to have effect. The purpose of the grant was clearly to empower the St. Louis Company to make the track to be laid over the land of the Pacific Company a part of its line of railroad, and to be used as and be a part of it forever, and consequently to pass with that railroad as a part of it, if it should at any time be transferred as a whole; and there may have been reasons — undoubtedly were — which would induce the Pacific Company to deny the right to transfer the track over its land, or permit its use independently of the railroad of the St. [277] Louis Company, perhaps, as a part of some other railroad. This evidently furnishes'the key to the proper interpretation of the apparently inconsistent provisions of the contract that the rights granted were intended to be appurtenant to the line of railroad, and not sev-erable from it. It is claimed, however, that the use of this right of way by the consolidated company subjects it to a greater burden than was contemplated by the parties. There is no basis for this claim. The parties were contracting with reference to the business of conducting railroads, and the manner in which that business is and always has been carried on. It must have been expected, of course, that the St. Louis Company would get for its road all the business in carrying passengers and freights that it could; that at each terminus it would seek to get for carriage passengers and freights destined to or beyond its other terminus, and probably encourage the construction of other railroads to each terminus, or to other points on its line, in order to bring it business. It is impossible to see how an arrangement made by it with some other railroad company for receiving, say at its southern terminus or at any other points on its line, passengers and freights in the same cars in which they should be brought by such other railroad to such point, and passing them in the same ears over its own line, (and, so far as relates to carriage of passengers and freights, that is all that the consolidation amounts to,) increases the burden on its own line beyond what it would be if the same passengers and freights were at such point transferred from the cars of such other company to its own. Judgment affirmed. The defendant, on June 4, 1886, moved for a reargument. The following dissenting opinions were filed June 25, 1886, upon the entry of an order denying the motion: