Opinion
12-31-1895
BRECKENRIDGE v. DELAWARE, L. & W. R. CO. et al.
Henry S. Harris and Joseph M. Roseberry, for complainant. J. Frank Fort, for defendant.
(Syllabus by the Court.)
Bill by Harry W. Breckinridge against the Delaware, Lackawanna & Western Railroad Company and others for injunction. Denied.
Henry S. Harris and Joseph M. Roseberry, for complainant.
J. Frank Fort, for defendant.
BIRD, V. C. The complainant in this case in effect states that he is the agent or representative of the United States Pipe-Line Company, Such company was organized under the laws of the state of Pennsylvania, and is desirous of establishing a subway pipe line to the Atlantic coast, for the purpose of carrying its oil to that coast. In order to make a suitable connection throughout its entire route, it is found desirable to cross the lands owned or occupied by the defendant, the Delaware, Lackawanna & Western Railroad Company, the lessee of the Morris & Essex Railroad Company. The complainant has succeeded in laying, under the surface of the soil, two lines of pipe-one four inches in diameter, and the other five—across the lands which the defendant claims the title to. The defendant threatens to take up and remove these pipes, so far as they are through and across the land which it claims. The prayer of the bill is that the defendant may be restrained from executing its threat.
The bill shows the title under which the defendant makes its claim of ownership. This title is a deed of conveyance made by Cornelius Stewart and wife, dated the 26th day of March, 1864, the granting part of which is in these words: "Have given, granted, bargained, sold, conveyed, and confirmed, and by these presents do give, grant, bargain, sell, convey, and confirm, unto the said the Morris & Essex Railroad Company, and to their successors and assigns, forever, the above-described tract of land and premises, with full power to make use of the same in all lawful ways for the purposes of the said extension of the said railroad, and as part of the route thereof." And, as some evidence of the estate which was intended to be conveyed, the habendum clause may be cited, which is in these words, viz.: "To have and to hold the said above-described tract of land and premises, with the appurtenances, unto the said Morris & Essex Railroad Company, and their successors and assigns, forever, for all the purposes mentioned in the said act of incorporation, and the several supplements thereto passed and to bepassed." The land so conveyed is a portion of a larger tract, and severs it. In consequence of such severance, a provision was made in the deed for access from one to the other, in the following words: "That said company shall erect, and forever maintain, under the rails of the said railroad that shall be constructed on said granted premises, at a point near where the same shall cross the land line between the lands of said Stewart and Duffield, a suitable wagon road or crossing, which shall be at least thirteen feet wide by thirteen feet high, and, if the construction of said road will reasonably allow, fourteen feet high, so to enable said Stewart to travel and cross freely between his lands on each side of said granted premises." In order to be established in the rights of Stewart and his grantees, Breckinridge purchased of them a parcel of land on either side of this wagon road or crossing, and immediately facing it, so that he could have access to the road or crossing, and pass directly over the same from the one parcel to the other, so purchased. Thus fortified, Breckinridge entered upon the wagon road or crossing, dug his trenches, and placed the pipes for conveying the oil of the company. The defendant threatens to remove these pipes, insisting that Breckinridge is a trespasser, and has invaded its legal rights. Breckinridge alleges that if the defendant were permitted to carry out its threats, the mischief to the oil company would be irreparable. Hence, he prays an injunction restraining the defendant from any such interference.
The rights of these parties were fixed by the deed of conveyance above referred to, made by Stewart to the Morris & Essex Railroad Company. In my judgment, a fee simple absolute passed to the company, qualified only by the use indicated by the words contained in that grant. 2 Bl. Comm. 109; also citations below. It was to it, its successors, and assigns, forever. See Ang. & A. Corp. §§ 172, 173; Elph. Interp. Deeds, p. 226. A fee passes to a corporation aggregate without the use of the word successors. Ang. & A. Corp. supra; and Elph. Interp. Deeds, supra; Wilcox v. Wheeler, 47 N. H. 488; School Dist. v. Everett, 52 Mich. 214, 17 N. W. 926. But, while the grantee took the fee, it was subject to the provisions contained in the instrument, which required it to construct and maintain a wagon road or crossing, so as to enable said Stewart to travel and cross freely between said lands. This secured to Stewart nothing more than a right of way over the surface of the soil, at the place named, from the one parcel of his land to the other. His use was limited to the surface of the soil. No other or greater right was provided for, reserved, or excepted. Hence, the law respecting such rights of way by one over the land of another must control in this case. It is universally established that the rights of the owner of the fee in such cases are only qualified or limited by the right of passage over the surface, by the person entitled to the right of way, together with the right to repair. Says Chief Justice Shaw, in Atkins v. Bordman, 2 Metc. (Mass.) 457: "The owner of the soil has all the rights and benefits of ownership consistent with such easement. All that the person having the easement can lawfully claim is the use of the surface for passing and repassing, with a right to enter upon and prepare it for that use." It thus appearing that the owner of the dominant estate, or of the right of way, being limited in his use to the surface of the soil, and the owner of the servient estate, or of the fee, enjoying all other rights of ownership, two legal and well-settled principles seem to stand in the way of granting the prayer of Breckinridge against the defendant. The one is that in disturbing the soil for the purpose of laying his pipe he has already committed a trespass, and the other is found in the allegation of his bill that he intends to use this pipe for conveying his wares, not from the one parcel to the other which he has purchased, but from a foreign jurisdiction, over other territory in this state, to one of the parcels which he has purchased, and so, through the land the fee of which is in the complainant, to the other parcel which he has purchased, and thence beyond to the seaboard. The act already committed is a trespass, and a continuing one, and the act which he proposes will, if committed, manifestly be a trespass. The right of way secured to Stewart by the deed of conveyance is a surface way, and not a sub way, and it is limited to the purposes of passing from one parcel of the land severed to the other parcel. The authorities which support this view are found in Washb. Easem. pp. 168, 184-186. On page 186 it is said that if a way be granted from black acre to green acre, and he pass from one to the other and goes beyond, he is then a trespasser. Than this nothing could be plainer in principle. In United Land Co. v. Great Eastern Ry. Co., L. R. 17 Eq. 167, Mallins, V. C., says: "I quite agree. The law is perfectly settled that if a man has a right of way over the land to go to a particular place, he cannot use it for the purpose of going to that place and a place beyond it, because the servient tenement is only subject to a certain use and a certain inconvenience. He has agreed that it shall be used for a particular purpose, and, having so agreed, he is not bound to submit to its use for any other purpose." If these general principles do not control the case in hand, because it is expressed in the grant that it was made to the grantee for the purpose of constructing and operating a railroad, yet, according to the following authorities, if it should be held that it is restricted to such use, it is no limitation upon its rights as owner of the fee as against all the world. State v. Brown, 27 N. J. Law, 13; McKelway v. Seymour, 29N. J. Law, 321; Fitzgerald v. Faunce, 46 N. J. Law, 536; New. Jersey Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N. J. Eq. 398, 15 Atl. 227. In this case it was held that, "under a deed granting only a qualified fee the grantee has, while his estate continues, the same right to the exclusive possession and enjoyment of the land granted, and as absolute dominion over it for all purposes, as though he held it in fee simple absolute." See Fitzgerald v. Faunce, 46 N. J. Law, 597.
The order to show cause why an injunction should not issue was granted because the complainant had succeeded in laying his pipe in the soil of the land claimed by the defendant, thereby acquiring actual possession, with the right to go from the one parcel which he had purchased to the other, and upon the impression, created by the argument of counsel, that the grant under which the company claimed title might reasonably be considered to convey only a right of transit. But, when the views of text writers of the most acknowledged ability, and of judges in our own courts whose opinions are of the greatest weight, are considered, it seems to be impossible to sustain the prayer of the complainant in this case, however desirable it may be, in the interests of trade and commerce, so to do, or however imaginary the damage to the railroad company may be. When property rights are established, and certain rules have long been laid down as a guide for the courts in protecting such rights, both the rights and rules must be respected by the courts. Hence, it seems to be my plain duty to deny the motion for an injunction, and to discharge the order. The costs will abide the final result.