Whalen v. Baltimore & Ohio Railroad

Worthington, J., delivered the opinion of the Court. The appeal in this case was taken from an order of the Circuit Court for Howard County, sitting as a Court of equity, sustaining a demurrer to a bill of complaint filed in that Court b> the appellants against the appellee, for the purpose of obtaining an injunction to restrain the appellee from neglecting and refusing to properly maintain a turnout and siding nt Dorsey’s run in Howard County; and from neglecting and ¹⁵ refusing to maintain and run a reasonable train service of passenger and freight by or over said Dorsey’s run siding; and from neglecting and refusing to take up and set down at said siding, by the passenger cars of defendant company, all persons going to and from the farm of the plaintiffs; and from refusing or neglecting to leave at said siding, to be unloaded; any car in which any article or articles weighing at least 3,000 pounds shall be laden for the plaintiffs, and on which the cost of transportation shall have been paid at the place beginning. The bill was filed June 17th, 1907, and sets forth, as the grounds for its prayer for this relief, that on May 5th, 1848, the defendant entered into an indenture with a certain Thomas Beale Dorsey, formerly for many years a member of this Court, and Milcah Dorsey, his wife, wherein the defendant covenanted and agreed with the said Dorsey and wife, and with their heirs and assigns to construct and maintain a turnout and siding at Dorsey’s run on the main stem of said railroad, and also to do certain other things which in the prayer of said bill it is prayed the defendant may be enjoined and restrained from neglecting and refusing to do. The bill further alleges that the plaintiffs have become, by mesne conveyances, enfeoffed and seized of a large part of the land owned by said Dorsey and wife at the time of the execution of said indenture, and that they are, as the assigns of said Dorsey and wife, entitled to enjoy the fruits of the covenant therein before recited; the said covenant, as is alleged, being a covenant running with the land.

That the defendant was then at the time of the filing of the bill of complaint, constructing a cut-off on the main stem of its railroad, over which it would, when completed, run its passenger and freight trains, and thus divert all passenger and freight trains from that part of its line which theretofore had passed Dorsey’s run at the siding and turnout, which up to that time had been -maintained and operated by said railroad company under the provisions of said covenant. That the plaintiffs being advised of the intended abandonment of Dorsey’s run turnout and siding, commúnicated with ¹⁶ the defendant and called its attention to the covenants in said indenture contained, to which communication the defendant replied that it would abandon said turnout and siding, but would hold itself in no way liable for a breach of said covenants; because as it claimed it was immune from liability for a breach thereof. The bill further alleges that by the change of the location of the road bed of said defendant company, there would be no turnout or siding on the property of the complainants at Dorsey’s run, and that they would be entirely without the passenger or freight service from said defendant, which the defendant has covenanted to give the complainants as assignees of said Dorsey. That when the complainants purchased the property mentioned, the fact of having a station on their property at which the freight and passenger trains of the defendant stopped, was an inducement and a consideration for them to purchase the said property, and that they were advised at the time of said purchase that said covenant was one running with the land, and could not be broken by said defendant company.

That the complainants were advised, and therefore charge that no monetary compensation could recompense them should the defendant be allowed to violate its said covenants, and that a breach thereof would work a great depreciation in the value of the land belonging to them for which they would have no adequate remedy at law. That it was not unreasonable to ask the railroad company to run and maintain a certain number of trains, passenger and freight, over its right of way passing by said Dorsey’s run, and to maintain the turnout and siding covenanted by the defendant company to be maintained there, nor would such request be impossible of performance. ■ The bill further alleges that the defendant has not abandoned the property of the complainants entirely, but that its tracks were still on the property of complainants for a considerable distance. That should the defendants be permitted to violate their ¹⁷ covenants, that the nearest station to the complainants would be Hollofields, which was distant three miles, whereas from the residence and property of the complainants to Dorsey’s run turnout and siding was but one quarter of a mile. The bill also alleges in its sixteénth paragraph, “That from .the nature of the topography of the ground and situation whereon the new line of railroad would run, it would be impossible to construct and maintain a turnout and siding which would be accessible to the complainants. ” The prayer of the bill for specific relief, is substantially as herein before set out, and there is also the usual prayer for general relief.

With the bill was filed a copy of the deed to Priscilla J. Whalen, one of the complainants, for 567 acres, being a part of 2,200 acres of land owned by Judge Dorsey at the time of the execution of the above mentioned indenture; also a plat of the whole tract showing the location of Dorsey’s run station, and of the so called new “cut off” of the railroad, and also a copy of the indenture entered into between the railroad company and Judge Dorsey in 1848. The indenture is set out in the report of this case preceding this opinion. The legal principles involved in this appeal, all of which* were elaborately argued by able couhsel on both sides, and all of which are sufficiently involved in the case to require careful consideration, may be appropriately considered under three heads: First. Was the covenant, or rather were the covenants (for while one in form, the covenant involved in this proceeding embraces several undertakings), contained in the indenture of May 5th, 1848, originally valid and binding on the defendant, or void as against public policy?

Second: If originally valid as between the parties, are they such covenants as run with the land in favor of the plaintiffs as assignees of Dorsey? Third: If valid, and if they enure to the benefit of the plaintiffs, are the plaintiffs entitled to have the agreement specifically enforced? 1 st. As to the first proposition we think the covenants were valid, and binding on the defendant at the time they were en ¹⁸ téred into, and capable then of being specifically enforced so far as the facts are disclosed by the record. In Green v. West Cheshire Ry.

Co., 13 Law Rep. Equity Cases, 44, a contract by the defendant railroad company to construct a siding upon plaintiff’s land along side the railroad tracks, was specifically enforced. In Lydic v. B. & O. R. R. Co., 17 W. Va. 427 , a right of way through land was granted to the railroad company, and a verbal agreement was made by which the railroad company promised to put in a switch at a certain mill, and stop its trains at the switch. The Court held,“because the agreement was verbal, it did not run with the land, but distinctly stated that, if it had been in writing under seal, it would then be a covenant running with the land and capable of being specifically enforced in equity. .

In Aiken v. Albany R. R. Co., 26 Barb. 289 , the railroad was required to construct and maintain crossings over or under its tracks for the benefit of the farm land on each side, in pursuance of an agreement to that effect in'a deed from the landowners, to the railroad company. See also Murry v. Northwestern Ry. Co., 64 S. C. 5 20, and Cazvrence v. Ry. Co., 36 Hun. 467 ; Pittsburg, etc., Ry.

Co. v. Reno, 123 . 111. 273- * The case of Sapp v. Northern Central Ry. Co., 51 Md. 124 , cited by the appellees, is distinguishable from these. In this latter case the Court was dealing with a question involving the right or power of a railroad corporation to grant or create an easement for .persons to walk along its tracks or by the side of them. As the exercise of such a power, if permitted, would be subversive of the very purpose of the railroad’s creation, it was held that the corporation possessed no such power.

In the case at bar we find nothing unreasonable or impracticable for the railroad to perform, contained in the covenant, as originally entered into, and nothing on the ground of public policy to forbid or prevent its execution at the time. We think there is a manifest distinction to be made between covenants to establish and maintain stations for the public con ¹⁹ venience, and those to establish and maintain sidings, turnouts, crossings and the like, for'private use merely. The former are generally condemned as against public policy, while the latter are to be governed by the circumstances of each particular case. Fuller v. Dame, 18 Pick. 472 ; Texas & P. R. R. v. Marshall, 136 U. S. 393 ; Same v. Scott, 41 U. S. App. 624; 37 L. R. A. 94—98; Marsh v. Fairburgh Ry.

Co., 64 Ill. 414 ; Northern Pacific v. Washington, 142 U. S. 492 ; Lydic v. R. & O. R. R. Co., 17 W. Va. 427; Aiken v. Albany R. R. Co., 26 Barb. 289 ; Green v. West Cheshire Ry. Co., 13 L. R. Eq. Cases, 44, Gilner v. Mobile Ry. Co., 79 Ala. 569 . 2nd.

The next question is, do the covenants run with the land in favor of the plaintiffs in this case? By referring to the covenant it will be seen that the railroad company agreed to “construct and maintain ” a turnout and siding at Dorsey’s run on the main stem of said railroad, and to do certain other things connected