Kavanaugh v. St. Louis Traction Co.

GOODE, J. (after stating the facts).—From the recited facts it will be apparent that the appellant contends he has succeeded to and possesses the easement granted by the People’s Company to the Arsenal Company under the contract of June 25, 1888, and deduces his title thereto through the deed of trust executed by-the Arsenal Company to Charles Parsons, on July 2, 1888, and the trustee’s deed of said Parsons, foreclosing the said deed of trust and dated September 20,. 1898. His further contention is, as opposed to that of the respondent, that said contract is still in full force and entitles him to the relief he prays; that is, to operate cars over the Fourth street tracks now owned by the respondent. Eespondent, on the contrary, insists that the first contract was not intended to and did not embrace an easement to operate cars by electricity over the Fourth street tracks; and further, that it was abrogated by the second contract of December 13, 1895, providing for the operation of cars by that force over the portions of the track in dispute. Therefore, the first thing to do is to ascertain the scope and meaning of the first contract. Mr. Overall’s testimony shows that the only cars which came into his possession pursuant to the purchase of the Arsenal Company’s property at the foreclosure sale, were trolley cars, and that his demand was for the operation of that [276] class of vehicles over the respondent’s tracks. When the first contract between the Arsenal Company and the People’s Company was made, the former had no franchise to use a trolley system on the streets of the city of St. Louis, but only to use horse or cable power, or electric power derived from storage batteries carried under the cars. Hence it could not have been within the contemplation. of the parties or within the meaning of the contract, that the People’s Company was granting to the Arsenal Company the right to use its Fourth street tracks in the operation of a trolley system. The municipal franchise to employ such a system was vested in the Arsenal Company by an ordinance of April 8, 1893, enacted nearly five years after the date of the first contract. Moreover, the barest inspection of that. contract shows that no motive power was contemplated by the parties but horse power or cables. And, indeed, it looks like the only power it was intended the Arsenal Company should use' in the operation of its cars over the People’s Company’s tracks Avas horse' power; for it was provided that if the People’s Company changed its motive poAver to a cable, which it was expected to do shortly, then the Arsenal Company should not itself operate cars over the People’s Company’s tracks, but the latter company should operate by its cable the cars of the former, and receive an increased compensation over what it was to receive when the Arsenal Company itself operated cars. That is to say, the Arsenal Company was to pay $1,200 a year AAdiile it operated its cars and $1,800 a year if the People’s Company changed to cable power; for in the latter event the arrangement was that the People’s Company should haul the cars of the Arsenal Company. Moreover the provision in regard to the use of the People’s Company’s turntable by the Arsenal Company points to the conclusion that whatever operating of cars was done by the Arsenal Company over the tracks of the other should be by horse poAver. The meaning of the [277] contract is, that the Arsenal Company acquired, the right to employ horse power itself over the Fourth street tracks by paying a consideration of $1,200 a year for the privilege until the People’s Company changed its motive power to a cable and the further right, after that event, to have the People’s Company haul its cars (the Arsenal Company’s) by cable, for a consideration of $1,800 per annum. Appellant’s counsel argues that as the original franchise from the city to the People’s Company of date April 13, 1888, empowered it to use either horse, cable or electric power, the parties must have contracted with the understanding that the easement embraced the right to operate cars by electricity. This argument is exploded not only by the language of the agreement as has been shown; but also by the fact that the ordinance alluded to electricity furnished by storage batteries carried under the cars and not the trolley or overhead wire system; which is an entirely different method of moving cars. Hence it is perfectly clear that the deed of trust executed to Parsons by the Arsenal Company, though it conveyed to him whatever right said company had under the contract of June 25, 1888, did not convey to him the right to operate cars by a trolley system over the Fourth street tracks; and, therefore, no such right passed by his deed to Overall for Scullin, or by assignment from Scullin to the present appellant, Kavanaugh. This interpretation is in accord with the treatment of the contract by the parties to it. It is plain that the Arsenal Company did not suppose it possessed a franchise prior to April 8, 1893, to operate a trolley system, because on that date it asked the city for and accepted a franchise empowering it to do so. It is plain, too, unless all the proceedings were colorable and fraudulent, of which there is no proof, that the officers of the Arsenal Company did not regard their first contract with the People’s Company as giving them the right to use a trolley system on the Fourth street tracks, because on De [278] cember 13, 1895, they took a new contract in which the right was granted. It is argued in appellant’s brief that the servitude imposed on respondent’s track by using the trolley cars would be less than that imposed by storage-battery cars, because the latter are heavier. This may be true or not. In any event it is immaterial. The essence of the matter is not that a greater servitude would be imposed; but that one altogether 'different from that granted by the original contract would be. It is not a question of greater or less servitude, but of two' entirely different ones. We term the interest granted to the Arsenal Company by the People’s Company under the first contract an easement, but it may be difficult to determine whether such is its nature or an irrevocable license. In either event the extent of the interest would have to be ascertained from the terms used; for each party to such a grant may insist on its being enjoyed as granted. [10 Am. and Eng. Ency. Law, p. 428; Allen v. San Jose, 92 Calif. 388 ; Horner v. Keene, 177 Ill. 390; Johnson v. Jaqui, 27 N. J. Eq. 552.] The owner of a dominant estate can neither increase the servitude imposed on the servient tenement or change its character. This rule is a recognition of the right of the owner of property to control its use, and is pushed to the extent of holding that although the proposed change in the character of the servitude would prove beneficial, rather than injurious, to the servient estate, it is for the owner of the latter to say whether or not he will tolerate the change. The question was well considered in Allen v. Water Co., 92 Calif. supra, wherein the defendants, as owners of the easement to carry water through an open ditch on the land of plaintiffs, preferred to lay a pipe along the bottom of the ditch and fill the latter with earth, which would be a change beneficial to the property; but the court held the proposed servitude would be a new one and not to be allowed without plaintiffs’ consent, no matter whether it would be beneficial or injur [279] ions. The following authorities supporting the same doctrine were cited and quoted from: Dickson v. Canal Co., 15 Beav. 260; Johnston v. Hyde, 32 N. J. Eq. 455; Gregory v. Nelson, 41 Calif. 278; Heath v. Buckneall, L. R. 8 Eq. 5. The defense that neither the appellant nor those under whom he claimed possessed the right to operate by electricity cars over the tracks on Fourth street, is so far established that a court of chancery, in the exercise of a judicial discretion, should refuse to decree that respondent is bound to permit the operation of a trolley system. The judgment is affirmed.' All concur.