
    Frank D. Perry et al., Pl’ffs, v. The Lehigh Valley Railway Company, Def’t.
    
      (Supreme Court, Genesee Special Term,
    
    
      Filed August 6, 1894.)
    
    1. RAILBOADS—POWEBS.
    Where there is no limitation in the deed, upon the exercise by the company of the powers conferred by statute, none is to be presumed or implied and in legal effect.
    2. Same—Covenant.
    In such case, there is no breach of the covenant in the deed for which the company is liable.
    3. Same.
    The consideration received by a land owner In conveying a right of way to a railroad company is presumed to be in payment of all damages which may result to the grantor by reason of the use of the conveyed premises for purposes of a railroad.
    
      4. Same.
    Damages, once fixed either by agreement of the parties or by special proceedings, cover all future damages or claims therefor.
    Defendant demurrs to complaint alleging that it does not state facts constituting a cause of action.
    
      Myron H. Peck, Jr., for pl’ffs; Herbert P. Bissell, for def't.
   Ward, J.

The complaint in this action alleges the due incorporation of the Buffalo & Geneva Bailway Company in February, 1889, for the purpose of constructing a railroad from the village of Geneva, in the county of Ontario, to the city of Buffalo and Suspension Bridge. That the said railroad passed through the county of Genesee; that a survey had been made of the route of the proposed road, and a map, survey and profile thereof were duly filed and the ten thousand dollars for every mile of the - proposed road were in good faith subscribed to the capital stock of the company and 10 per cent, thereon paid in; that the plaintiffs were the owners of about one hundred and fifty acres of land situated in the town of Batavia, Genesee county, and used for agricultural purposes, and about two miles from Batavia, having a large and expensive dwelling-house and suitable farm buildings thereon and of great value; that the line of the said railroad passed through said farm in an easterly and westerly direction, leaving fifty acres with the buildings upon one side of the railroad route and one hundred acres on the other side.

That at the request of the said company, and for the purposes of the said railroad, these plaintiffs did, on or about the 20th of March, 1890, convey by warranty deed to said company a right of way through the said farm of the plaintiffs in which the name of the grantee was stated to be “Buffalo & Geneva Bailway Company,” a railroad corporation, and in which deed was contained the following covenant or condition, immediately following the description of the said right of way so conveyed, “ the party of the second part hereto agrees to make and maintain an under crossing at the present lane line on said premises with flare wings at least fourteen feet wide, eleven and one-half feet high in the clear without changing the established grade of the railway, and the same to be paved for sixteen feet from the rails,” and that such deed with the said condition and provision for an under crossing was the result of a compromise agreement between the plaintiffs in this action and the said Buffalo & Geneva Bailway Company by which the said right of way was acquired by said company for a much less sum than it could otherwise have been obtained.

The complaint further alleges that on the 21st day of June, 1890, the said railway company was consolidated with the Geneva & Van Ettenville Bailway Company and Lehigh Valley Company into one corporation, called the Lehigh Valley Company (this defendant), and thereby the defendant became fully vested with all the property and franchises of the several railroad companies, together with the rights of way acquired by them, and that the defendants thereafter constructed and completed the railroad for which the Buffalo & Geneva Railroad Company was incorporated to construct, and at the commencement of this action was engaged in operating the said railroad; that in the month of July, 1892, the defendant constructed a branch railroad from the north side of . the Canandaigua branch of the New York Central & Hudson River Railroad, thence easterly ascending a steep grade to the tracks of the defendant on the right of way obtained from the plaintiffs and connecting with such tracks at a point about twenty-five feet westerly from the plaintiffs’ under crossing for the purpose of transferring freight and passenger trains from the defendant’s railroad to the Central and furnishing a connection with defendant’s road with other railroads; and that the defendant established a station just east of the said crossing, and switches on each side of the defendant's main track just cast of said crossing for the purpose of transferring cars from the main line of defendant’s road to said switches, and then to other trains and other points beyond, and the freight and passenger trains are run over said branch to and from the main track of the defendant’s railroad and over the said under crossing; that at the time said deed was given, it was intended by the parties that such crossing was to be used as free as possible from obstructions from passing trains; there was no necessity for the location of the depot and switches and railroad connections at the place where they were located, but could have been located elsewhere as well, and that they were so constructed with full knowledge of such intention by the defendant.

The complaint further alleges that by reason of the construction of such branch tracks and running of passenger and other trains thereon, transferring and switching said cars over said under crossing, that the same is rendered of much less value than otherwise it would have been had it remained as contemplated by the parties; that in the operation of the railroad by the defendant as at present operated, the engines and cars are caused to stand at, near and upon the said under crossing, in the shifting of the same to and upon the said switches and to and upon said branch tracks and to approach the said under crossing from the west with great noise and confusion, and the emission of smoke and fire from the engines in ascending the said grade, and to stop at said station for orders and thereby to stand upon and near the said crossing, hindering anti delaying the plaintiffs in passing to and fro upon their said farms and underneath the said crossing; that by reason of the said facts the plaintiffs have sustained damage in the sum of $7,-500 for which they demand a judgment.

There is no allegation in the complaint but what the under crossing was constructed and had been maintained by the defendant precisely as covenanted in the plaintiffs’ deed.

This is a plain legal action for damages. No equitable relief is asked. The substance of the plaintiffs’ grievance is that when the right of way was granted and before the construction of the railroad, it was not in the contemplation of the parties that a branch track would be constructed, depot and switches erected within a short distance of the expected crossing, so that the crossing might be more exposed to the annoyance, noise, smoke and fire attendant upon such construction, and the switching, operating and moving engines and cars thereat; that while the defendants had the right thus to do as a part of their railroad business, it was not necessary to do it at that particular point, but that point was selected at the mere convenience of the defendants, and they should have selected some other point on their railroad that would not have disturbed theplaintiffs in the enjoyment of their crossing.

The question now is, whether the plaintiffs can maintain this action for damages assuming all these allegations to be true, which must be done in the disposition of this demurrer.

By § 66 of the General Bail road Act, the defendant is entitled “to take and hold such voluntary grants of real estate and other properties as shall be made to it to aid in the construction, maintenance and accommodation of its railroad.” * * * “to purchase, hold and use all such real estate and other property, as may be necessary for the construction and maintenance of its railroad, and the stations and other accommodations necessary to accomplish the objects of its incorporation.”

“ To intersect, join and unite its railroad with any other road before constructed at any point on its route and upon the ground of such other railroad company, with the necessary turn-outs, sidings and switches, and other conveniences in furtherance of the objects of its connections. ”

The powers here enumerated are absolutely necessary for railroads to possess in carrying out the purposes of their incorporation. The law has defined the use to which the defendant could put the real estate granted by the plaintiffs to it, and as there was no limitation in the deed upon the exercise of these statutory-powers by the defendant with reference to the estate conveyed, none is to be presumed or implied, and in legal effect, it was the understanding of the parties that the defendant might construct depots, switches, railroad connections, sidings or do any other act they were authorized to do, on any part of their railroad, upon the premises conveyed.

The only obligation imposed upon the defendant was to create and maintain an under crossing specified in the deed. There was no limitation upon the use of the land above the crossing or contiguous to it; and as long as the defendant made only such use of it as the statute permits, there is no breach of the covenant in the deed, nor is it liable for damages.

It is conceded that the under crossing was fully maintained so that the plaintiffs could pass and repass from one portion to the other without interference or hindrance.

The complaint is, that in the ordinary operation of the defendant at that point, the passage at all times was not free from difficulty on account of the presence overhead of the defendant’s cars and engines, and the noise and other disturbances caused thereby, but the grant was before the railroad was in fact constructed, the extent of traffic ascertained; its future necessities understood, or what particular use aside from the mere passage of trains over the contemplated railroad, was to be made of any portion of the road, and, therefore, it cannot be said in reason that any particular use of the track was not in the contemplation of the parties at that time. To attempt to limit the effect of this conveyance by vague understandings or impressions such as are alleged in the complaint would be impossible and absurd.

The complaint recites that this conveyance was for a valuable consideration. The consideration received by a land owner in conveying a right of way to a railroad company is presumed to be in payment of all damages which may result to the grantor by reason of the use of the premises conveyed for the purposes of a railroad, the same as though damages had been assessed under the condemnation act or special proceedings for that purpose. Damages once fixed' either by agreement of the parties or by special proceedings cover all future damages or claims therefor; that is to say, new damages cannot be recovered at each change of management or of increase of trains, or increased use of the premises conveyed, provided such use does not exceed the legitimate use of such property for railroad purposes, nor can future damages be predicated upon inconveniences and annoyances, as the overlooking of the premises and obstruction of views, increased competition resulting from the railroad, a larger number of residents or visitors attracted to the locality by means of it and interfering with the owner’s privacy, nor inconveniences not involving any immediate physical injury, such as smoke, vibrations, and noise caused by passing trains.

Pierce on Railroads, pages 216 and 217 and cases there cited.

And see as bearing upon the questions here considered Mills on Eminent Domain, §§ 110 and 216 ; Lewis on Eminent Domain, § 565 ; Dearborn v. Boston R. R. Co., 24 N. H. Rep. 179 and 186; Hollins v. Demorest, 129 N. Y. 676; 42 St. Rep. 394.

And among elements of damage to be regarded when damages are assessed or agreed upon, is that of crossing from one part of the divided premises to the other, and the interruption of facilities and communications of business attached to the estate. Pierce on Railroads, page 216, and cases there cited.

The demurrer most be sustained with costs, with leave to the plaintiffs to serve an amended complaint if they shall be so advised upon payment of such costs and within twenty days after the service upon them of the order sustaining the demurrer and the interlocutory judgment thereon.  