
    Madden v. Railway Co.
    A railway companjr, in consideration of the grant of a right of way for its road, through the lands of the plaintiff and of two other adjoining proprietors, agreed to make such culverts and crossings as might be necessary to enable the parties “ to reasonably occupy their lands, to carry off surplus water, &c.and that upon the hillside of said road a sufficient drain should be made and kept open “for the discharge of the drainage.” The company built a culvert across its road south of and below said lands, with which the drain on the hillside of the road was connected, and through which the drainage from the lands of the plaintiff -was discharged. — Held, that the culverts and the drain form necessary parts of the plan or means agreed on for. draining the lands of the plaintiff on the hillside of the railroad, and that for damages caused to such lands by the obstruction of the drain, the company is liable, although the obstruction may not have been on the lands of either of the parties granting the right of way.
    Error to the District Court of Muskingum county.
    The original action was brought by Hugh Madden against The Cincinnati & Muskingum Yalley Railway Company, to recover for the breach of an agreement entered into between the parties.
    The agreement is evidenced by writing as follows :
    “ Whereas, the Cincinnati and Muskingum Yalley Railway Company, a corporation of the State of Ohio duly organized, are about to locate their line of railroad through the counties of Muskingum and Coshocton; now the undersigned, to aid said projected public work, and in consideration of one dollar ($1) to each of us in hand paid, do hereby severally agree with the company, in case said road shall be located through or upon any lands owned by us respectively, to convey on demand to the company the rights of way on the located line over such land one hundred feet wide, and in the meantime wo respectively permanently license the company to enter upon, survey, use and occupy such located line and roadway over said lands, with like right as if said conveyance had been made; it being understood, however, that the parties hereto reserve the right to use and occupj'- so much of said one hundred feet as the railway company do not require, from time to time, for the maintenance and operation of its said roadway; and it being further understood that said railway company shall make such culverts and crossings as may be necessary to enable the parties hereto to reasonably occupy their lands, to carry off surplus waters, &c., to give all necessary crossings. We hereby agree, for the considerations heretofore set forth, to grant to the C. and M. Y. Railway Oo. the right of way through our lands, upon the further condition, .however, that the road shall be constructed upon its present location ; that no material shall be borrowed from the river side of said line, and that upon the hill side of said line a sufficient drain shall be madefor the discharge of the drainage; and further, that a guard bank shall be built extending from the railway embankment along the division line between H. Madden and Gr. W. Adams to the river bank, and also that a crossing shall be made over the railway near the middle of my place.
    “Hugh Madden,
    “ C. Mattingly,
    “Henry Munson.”
    Before this instrument was delivered to the company, throe additional propositions were added. The second only is material in the present proceeding, and is as follows :
    “ 2. As to the dram or ditch on the west side of railroad: Said drain shall be made within the bounds of the road, and as close up to the fill for the road-bed as it can with safety thereto be made, and shall be kept open and in good condition perpetually by said railroad company or its assigns. Said drain shall be made by the ISth October, 1870.”
    The instrument first named, and the additional propositions were delivered to and accepted by the railroad company as constituting the agreement between the parties; and the railroad company entered upon the premises therein described, and constructed its road under said agreement.
    The parties being at issue as to the breaches of the agreement alleged by the plaintiff, the bill of exceptions shows that, “ the plaintiff, to maintain the° issue on his part, offered evidence tending to prove that the ditch, mentioned in the petition, commenced or had its head on land a few rods north of the north line of plaintiff’s said land, and at the foot of rising land; that said ditch ran southwardly along the west side of the said road to plaintiff’s south line, thence in the same direction . along the side of said roadway, over the land of Henry Munson and the land of Christopher Mattingly and the land of William Tatham, formerly the land of Elias Ellis; about 600 feet south of said Tatham’s noiih line, said ditch passed eastwardly under the road-bed of said railroad, by a culvert or wagon way, and thence eastwardlv some 110 rods on said Tatham’s land to the river, the same being the only outlet for any of the water of said ditch. Also, that before the location of said railroad, a ditch to drain the same lands, which should ho drained by the ditch mentioned in the petition,'was dug over the said lands of plaintiff and Munson and Mattingly and Ellis, the Ellis land being the same now owned by said Tatham; that the head of said ditch was near where the head of defendant’s said ditch is located, and the outlet of said ditch was near or at the place where the ditch of defendant has its outlet to the river; that the said ditch first dug was made at the joint expense and under the joint agreement of all the owners of the lands traversed by the same, and was to he and was kept open under said agreement, and jointly by all the owners of said land, but did not completely drain plaintiff’s said lands. And that said ditch was so opened and was kept open when defendant’s road was located over said lands, and the same was filled' up and destroyed by defendant, whose road traversed and crossed said ditch, in the construction of its said road. Also tending to prove that the ditch of defendant, mentioned in the-petition, became and was obstructed (by reason of earth, gravel, &c., earned into said ditch by Beach run, mostly through a channel cut by said Tatham on his own land, after said ditch, in petition mentioned, had been cut by said defendant; said ditch so cut by Tatham was for a drain or natural water-course^ over theretofore and in that direction running), on the said land of said Tatham, lying south of and adjoinipg the said land of the said Mattingly, which obstructions were north of the point where said ditch passed under the said railroad, and that defendant permitted said obstructions to remain, unreasonably, in said ditch, interrupting and preventing the flow of water along and through said ditch, and thereby preventing the flow of water through said ditch from the said land of plaintiff: and that by reason of said obstructions, &c., in said ditch on the land of said Tatham, and the water so by said obstructions held and detained upon the said land of plaintiff, plaintiff’s property was damaged to a large amount.”
    The evidence being closed, the court, among other things, charged the jury as follows: “The plaintiff charges that the defendant has violated its contract in several particulars, one of which is permitting the ditch, mentioned in the petition, to become and remain obstructed; such obstructions preventing the flow of water tliroiigh the ditch, and so ¡preventing the draining of plaintiff’s land. My reading of this contract differs from that of some of the counsel. Three men signed this contract. Plaintiff was entitled to all the covenants in the contract. The railroad company vras bound to dig a ditch over the lands of these three men who signed this contract; to dig a ditch deep enough and wide enough to carry off surplus water, and defendant was bound to keep the ditch open. Defendant was bound to dig and keep open such a ditch along the "west side of the roadway, over the lands of these three men. But defendant vras not bound to dig or keep open any ditch on any other land. Defendant might stop the ditch at the south line of the lands of these three men; it was not bound to furnish an outlet for the water; the contract does not require it to do so. Therefore, if the ditch was continued further south and to the river, and it became obstructed on the land of Tatham (lying south of the lands of the three men who signed this contract), and such obstructions were, by defendant, permitted to remain unreasonably, and they did prevent the drainage of plaintiff’s land, and did damage plaintiff’s land, crops and other property, defendant is not liable to plaintiff for such damages in this action. Plaintiff cannot complain of obstructions to said ditch, if the obstructions were located on Tatliam’s land, because the terms of this contract do not extend beyond the lands of those who signed it, Madden, Munson and Mattingly.”
    This part of the charge was duly excepted to. There was a verdict for the plaintiff; and a motion for a new trial interposed by him having been overruled, judgment was rendered on the verdict. ’
    The judgment was affirmed by the district court. The object of the present jietition in error is the reversal of these judgments, on the ground that the court erred in the construction of the agreement in the part of the charge above quoted.
    
      W. II. Ball, for plaintiff in error.
    
      O'Neill & Goddard and M. M. Granger, for defendants in error.
   White, J.

Thé court erred, in our opinion, in the construction of the agreement.

The stipulation that the “ railway company shall make such culverts and crossings as may be necessary to enable the parties hereto to reasonably occupy their lands, to carry off surplus waters, &c.;” aud the stipidation that upon the hillside of said line a sufficient drain shall be made for the discharge of the drainage,” form necessary parts of the plan or means agreed on for draining the lands of the plaintiff on the hill or west side of the railroad. A ditch or drain on the west side of the railroad, although kept open and in good condition perpetually,” as provided for in the agreement, would not accomplish the purpose of carrying off the surplus water and draining the lands. For this purpose a culvert was also necessary, to carry the water accumulating in the ditch across the railroad towards the river.

No particular place was specified in the agreement for the location of the culverts ; and their location would seem to be immaterial, as respects the draining of the plaintiff’s lands, provided that,- in connection with the ditch, they carried off all the surplus water.

But if the company saw proper to make the culvert on the lands of Tatham, below the lands of the plaintiff and the lands of the other parties to the contract, it became the duty of the company, under the agreement, to keep the ditch open to the culvert, so that the drainage from plaintiff’s land might be discharged through it.

Judgment reversed and cause remanded for a new t/rial.  