Linthicum v. Washington, Baltimore & Annapolis Electric Railroad

Stockbridge, J., delivered the opinion of the Court. The bill of complaint which was tiled in this case contained four prayers for relief; the first was for the correction in the record of a plat, constituting a part of a deed dated March 15, 1907, and the propriety of such correction was conceded by the answer; the second was to require the specific performance of a covenant contained in the deed of March 15, 1907 j the third, for compensation to the plaintiffs for the violation of the covenant, and the fourth, for general relief. The material facts in the case are that: “The Baltimore and Annapolis Short Line Railroad,” which will hereinafter be referred to for sate of convenience as “The Short Line,” was prior to the 15th of March, 1907, operating an electric railroad between Baltimore and Annapolis, and its route in part was along and over a right of way which had been acquired from the plaintiffs, or their predecessors in title. In the year 1906 and early part of 1907, the construction of an electric railway between the cities of Baltimore and Wash ²⁶⁶ ington and Annapolis was begun by a corporation wbicb had been formed for that purpose, bearing the name of the Washington, Baltimore and Annapolis Electric Railway Company.

The route to be followed by this road, as laid out by the engineers, involved a' double crossing of the tracks of the Short Line, as they existed at that time. Negotiations were entered, into between the W. B. & A. Ry. Co-, and certain members of the Linthicum family which culminated in certain conveyances bearing date March 15th, 1907. The effect of these was to shift the location of the Short Line tracks a little to the,south and east of the projected route of the W., B. & A. Ry.

Co-, over land which was acquired from the Linthicum family, thus enabling the W., B. & A. Ry. Co.,, partly over the former right of way of the Short Line and certain additional land acquired from the Linthicums, to> construct a route avoiding a crossing of railway tracks by one-road over the other. This arrangement was consummated by two deeds, one a conveyance from Laura E. Linthicum, W.. Hampton, M. Delmah and Seth ITance Linthicum to the Terminal Real Estate Company, of the land for the right of way to be used and occupied by the Short Line under its re-location ; and the other from the same grantors to the W., B. & A. Ry.

Co. of the additional land needed by that corporation for the construction of its railway; this deed was executed for an. expressed .consideration of $1,450, and the performance of' the covenants and conditions contained in the deed, the- two. most important of which related to crossings and the establishment of a platform station. The covenant with regard to> the crossings was that the railroad company was “to immediately construct and maintain three crossings of not less than. 20 feet on the surface over its right of way and over the-Baltimore and Annapolis Short Line Railway at the places-indicated on the plat hereto attached and crossing said right of way on the property hereby conveyed and bn the property conveyed by the parties of the first part to the Terminal Real! Estate Company of Baltimore City by deed of even date-herewith, with easy approaches thereto of not more than 4%. ²⁶⁷ grade and with a roadbed of not less than 20 feet wide in good condition.” In the deed of the same date from the same grantors to the Terminal Real Estate Company, the grantors reserved “to themselves, their heirs and assigns over the described lot a private crossing 20 feet wide at the point shown upon said plat,” referring to' the plat attached to the deed to the W., B. & A. Ry. Co. The rights, and of course restrictions upon those rights, so granted to the Terminal Real Estate Company passed by conveyance from it to the Short.

Line. The W., B. & A. Electric Ry. Co. became insolvent, and was directed to be sold under a decree of the Circuit Court of the U. S. for the District of Maryland. At this sale the property was purchased on behalf ot‘ a corporation bearing the name of the W., B. & A. Railroad Co., a corporation having practically the same executive officers as the insolvent Railway Company, hut with some changes of stockholders and bondholders from those of the Railway Company.

By an agreement made between Wade Hampton and Seth blanco Linthicum and either the Railway or Railroad Company, of the three crossings covenanted for in the deed of March 15th, 1907, two were consolidated to make one crossing 40 feet in width, in place of two of 20 feet each, and the-third crossing lias never been constructed by either the Railway or Railroad Company. It is for the specific performance of the covenant in its reiation to this third crossing that this present hill was filed, with the alternate prayer for an award of compensation should the Court refuse a decree for specific performance. The Short Line was not made a party to this proceeding, and the defendant urges this omission as a defense to the-present action. This contention is closely connected with another, viz., the covenant contained in the deed is not a covenant running with the land, and that by reason of the sale-of the Railway Company’s assets, the merely personal covenant of the Railway Company is not binding upon the Rail ²⁶⁸ road Company, and that, therefore, the plaintiffs have no enforceable right against the. defendant as to its own right of way, nor can they require of it the construction of a crossing over the line of another company which is not a party to the proceeding.

As to the latter proposition the legal position is that under the doctrine in Spencer’s case, 5 Coke, 16, and which has been recognized and adopted as the law in most jurisdictions in this country, a covenant to run with the land must have relation to something already in existence, and that where it relates to something to be done in the future,, it is a personal covenant merely and not a covenant running with the land. It is undoubtedly true that in the strict, technical sense the covenant contained in the deed from the Linthicums to the Railway Company was not a covenant running with the land, but as was said in the case of Wood v. Slehrer, 119 Md. 143 : “A vendor may impose restrictions on land conveyed by him for the benefit of his remaining land in such a manner as to be binding not only on the vendee but his assigns, though they are not strictly speaking, covenants running with the land.” And to the same effect were the decisions in Worthington v. Lee, 61 Md. 533 ; Newbold v. Peabody Heights Co., 70 Md. 495 ; Russell v. Zimmerman, 121 Md. 328, 341 . The same rule is stated in Lewis on Eminent Domain, section 477, and sustained by the authorities there cited, when that author says: “Agreements by a railroad company to build' crossings or to locate and build a depot or to do other things for the benefit of the grantor may be specifically enforced.” And in section 478 the author says: “Deeds and contracts for rights of way to railroad companies are assets and pass to the grantee or mortgagee of such companies, but subject to such burdens and conditions as are contained therein.” In view of the weight of authority it cannot now be held that the covenant between the Linthicums and the W., B. & A. Railway do. is not obligatory upon its successor, the Railroad Company. ²⁶⁹ A or is there greater force in the contention as to the omission to malm the Short Line a party. The entire transaction of March 15th, 1907, was one arranged by the W., B. & A. Ry.

Co. for the purpose of facilitating the construction of its line, the. deed to the Terminal Company made an express reservation of a private crossing, which was binding upon its assigns and, therefore, binding upon the Short Line, and the obligation imposed by the deed to the W., B. & A. Ry. Co. being likewise binding upon its successor, remains a subsisting obligation until performed or released by agreement of the parties, or the satisfaction of an award of compensation for non-performance. The rule applicable here is that laid down in Joy v. St. Louis, 138 U. S. 1 , and May v. LaClaire, 11 Wall. 217 . The lower Court dismissed the bill in this ease practically upon two grounds: the uncertainty of the contract, and the public service character of the Railroad Company.

With neither of these conclusions is this Court able to agree. There is a well recognized distinction between crossings intended for the use of, the general public and those which are private crossings, and Courts will refuse to grant an order in regard to a public crossing where it is deemed that public interest is better subserved otherwise, while they will require such performance with regard to that which is matter of private concern only. So- in Whalen’s case, 108 Md. 11 , where the B. & O. R. R. Co. had, in 1848, agreed to maintain a siding, turnout and station, and did so erect and maintain it for sixty years, and then by a relocation of its line abandoned the former site, this Court refused to order the further maintenance of the station which had been provided for in 1848. In cases where the public are concerned Courts decline to recognize as binding in perpetuity a covenant entered into by a railroad company, though-the party injured thereby may have a right of action for damages for the failure or discontinuance of the right which had been granted.

Md. & Pa. R. R. Co. v. Silver, 110 Md. 510 ; Marsh v. ²⁷⁰ Lehigh R. Co., 64 At. 366 ; Speer v. Erie R. R. Co., 68 N. J. Eq. 615; Tex. Pac. Ry.

Co. v. Marshall, 136 U. S. 393 . With regard to the uncertainty of the contract, the conditions set out in the deed of March 15th, 1907, are connected with a strip of land which is fully described in the deed and .shown on a plat annexed to the deed and recorded or intended to be recorded with the deed, as an integral part of it, upon which plat the crossings provided for in the covenant are also .shown. The grade for the crossing and the approaches to it are specified, and it is not essential that the deed or covenant set forth that the crossing shall be at, under or above grade. In the case of Speer v. Erie R. R. Co., the agreement was that the Railroad Company would give the grantor a suitable and convenient crossing where the grantor might direct, and this was held to have been sufficiently definite.

LTo objection can, therefore, be successfully set up as to the maintenance of the present bill for specific performance upon the ground of uncertainty in the contract. But it is not every agreement, no' matter how precise, definite and certain its terms may be, which a Court of Equity will require to be specifically performed. The remedy of specific performance is one to be awarded or refused by an Equity Court in the exercise of a sound judicial discretion, .and “if to enforce specifically an agreement would do one party great injury and the other comparatively little good the chancellor will not require its execution.” McDowell v. Biddison, 120 Md. 118 . A very similar case to the present one is that of Post v. W. S. R. R., 123 N. Y. 581 , where the West Shore R. R. Co. had entered into a somewhat similar .agreement, and the road becoming insolvent was sold—the agreement not having