
    Railway v. Bosworth.
    
      Statutory duty of railroad company to fence its track, secs. 3324, 3325 and 3329, JBev. Stats. — Agreement of land-owner to fence— Whether it runs with the land as a burthen — Purchaser without notice — Constructive notice, what is.
    
    1. A written agreement by the grantor of the right-of-way to a railroad company, to fence it on each side through his lands, will not affect the right of a subsequent purchaser to require the company to fence its road, under the provisions of Sections 3324 and 3325, Revised Statutes, where ■ the purchase was made without actual or constructive notice of the existence of such agreement.
    2. Such agreement not being recorded, the mere use and occupation of the right-of-way by the company and its successors for the purpose of a railroad, will not constitute constructive notice of the existence of such agreement.
    (Decided November 13, 1888.)
    Error to the Circuit Court of Clinton County.
    
      In the original action the plaintiff sought to recover of the-defendant $570.00 as the reasonable cost of building a fence on each side of its right-of-way through his lands, under the provisions of sections 3324 and 3325 of the Revised Statutes, imposing the duty on railroad companies of fencing their roads, and giving the abutting owner the right to build the ffences- and to recover the reasonable cost of the company, where it. fails to do so.
    The defendant answered, relying on an agreement by which one A. W. Miller, who in 1852 granted the right-of-way to its-predecessor, bound himself to keep up and maintain the fences-on the line through his lands, and from whom the plaintiff by intermediate conveyance, derives his title. A demurrer to this having been overruled, the plaintiff replied denying the existence of the agreement, or any knowledge of it- at the time he purchased.
    The ease was submitted to the court on an agreed statement, of the facts, which is as follows:
    “agreed statement oe facts.
    “ The parties to this action agree that the following statement contains and shall constitute the facts therein :
    “ 1. That the facts stated in the petition are true.
    “ 2. That the plaintiff derived his title to the lands described in the petition through, by, and under Andrew Miller.
    “ 3. That on the 17th day of June, A. D. 1852, the said Andrew Miller was the owner of said lands, and on that day executed and delivered to the Cincinnati, Wilmington & ZanesvilleRailroad Company a certain paper writing, in the words and figures as set forth in a copy thereof hereto attached, marked exhibit “ A,” and made a part of this agreed state of facts, and under, and by virtue of which said company entered upon said lands and built its road through the same.
    “ 4. That the railroad stock specified in said paper writing was delivered to said Andrew Miller, and said crossing and cattle-guards built as in said paper writing required.
    “ 5. That said paper writing was on the 21st day of January, A. D. 1884, recorded in the office of the Recorder of Clinton county, Ohio, and after the commencement of this action, and at no other time.
    
      “ 6. That the plain tiff had no actual notice of the existence or contents of said paper writing, his only notice being the use and occupation of the roadway through said lands by the defendants and the several companies through and under which it claims as stated in its answer.
    “ 7. That the defendant occupies and possesses said railroad by virtue of a lease thereof from the Cincinnati & Muskingum Valley Railway Company for the term of ninety-nine years, not yet expired. That said Cincinnati & Muskingum Valley Railway acquired the title to said railroad and all interests and property connected therewith, including rights of way, by means of certain mortgages and judicial sales thereof, thereunder, and at and from the said Cincinnati, Wilmington & . Zanesville Railway Company as fully as such proceedings could transfer them, and the said Cincinnati, Wilmington & Zanesville Railway Company has long since ceased to exist as a corporation.
    
      “ The above agreed statement of facts is submitted to the court as containing all the facts in the case to be entered of record as such, and upon which the court is asked to pronounce the law alone.
    “ EXHIBIT ‘A.’
    “ State of Ohio,
    Clinton County.
    
      “ In consideration of one dollar to me paid by the Cincinnati, Wilmington & Zanesville Railroad Company, I do hereby grant and release to said company the right to enter upon any lands I own, which lie on the line of said company’s road, surveyed and adopted by (hem, (or intended to be surveyed or adopted by them) and the right to run in curves and amend the line on the final construction of such railroad over said land, and to hold and use a strip thereof to be selected by the engineers, not exceeding 100 feet in width, for the purpose of a railroad so long as may be necessary, and to use the material standing or lying on said strip for the construction and repair of said road. I also agree to build and sustain all fences on. each side of said roadway, and to pay all taxes on said land during the occupancy by said company of the same ; and also the right of crossing other parts of my land to get at said railroad in construction and repair of said road. I will require said company to construct a farm crossing at the nearest surface grade, or within two feet thereof where I select; also a cattle guard on either side, and I hereby demand for said privilege four hundred and fifty dollars to be paid in stock of said company. »
    “Witness my hand and seal the seventeenth day of June, A. D. 1852.
    “A. W. Miller, [seal.]
    “In presence of Lawrence Fitzhugh.
    “ Received January 31, 1884.
    “Recorded February 1, 1884.
    “E. B. Howland, Recorder.”
    The common pleas rendered judgment for the defendant below; this was reversed on a proceeding in error by the circuit court, and judgment rendered for the plaintiff for the amount of his claim ; and this proceeding is now prosecuted to reverse the circuit court and affirm the common pleas.
    
      John S. Brasee, for plaintiff in error.
    
      J. B. Foraher, for defendant in error.
   Minshall, J.

A number of questions presented in argument as arising upon the record, need not, from the view we take of the case, be disposed of here. (1.) Thus it is claimed that the rights conferred by the agreement between the original parties, did not pass to the present owner of the railroad, because “ successors ” are not named, and that, therefore, the right-of-way itself, as well as the agreement as to fencing, was limited to the original company, and that the present owners can take nothing under that agreement. But, speaking for myself, I think this is not so. Being a grant to a corporation aggregate, it might last forever, and so the word “ successors ” was not necessary to create a perpetuity of right, or a fee simpie. Words of perpetuity are only necessary to create such right, where the grant is to a corporation sole. 2. Blk. Comm. 109, Angelí & Ames, Corp. § 172; Overseers of the Poor v. Sears, 22 Pick. 122; Shaw, C. J., 126, Mora. Corp. § 330. (2.) Again it is contended that the obligation to build the fence is a personal one, binding upon the grantor only, and that it was not susceptible of being imposed upon the land so as to run with it as against subsequent purchasers. But, speaking for myself, I am inclined to think, after a pretty full examination of the authorities, that there is nothing in the nature of the burthen that would prevent its being made to run with the land of the grantor as against subsequent owners, in favor of the right-of-way granted. That it would not have been so at common law may be conceded. It, with characteristic rigidity proceeded upon a few inelastic principles. It did not admit of any new or unusual burthens being imposed upon the land, and required in all instances that a privity of estate should subsist between the parties — the owner of the land upon which the burthen was placed and the owner of the land enjoying the benefit. But, to prevent the unj ust disappointment of expectations raised by agreements not regarded at law, equity, in the exercise of one of the frequent grounds of its jurisdiction, that of fraud, recognized and applied a different principle to such covenants. It took into consideration the convenience of the parties and their intention in the matter, rather than the technical rules of the common law, and generally gave effect to the intention, where the covenant concerned the land and would promote the convenience of the parties in the iise and enjoyment of it. Such covenants were not regarded as collateral, and were made to attend the land and affect its ownership as against purchasers with notice. Whitney v. Union R. R. Co., 11 Gray, 359, 364; Trustees v. Finch, 70 N. Y. 440, 449; 1 Smith’s Leading Cases, 6 Am. Ed. 167, Pom. Eq. Juris. § 689, § 2295 and § 1342. Holm. Com. Law, 392 et seq. There are, however, cases and authorities which limit the doctrine to what are called restrictive covenants, and stop short of affirmative ones, like that in this case. Pol. Cont. 227, 228. But they are not general. Many cases are to be found where affirmative covenants have been held to run with the land, on the ownership of which the burthen of performing them is imposed. Blain v. Taylor, 10 Abb. Pr. 228; Burbank v. Pilsbury, 48 N. H. 475; Bronson v. Coffin, 108 Mass. 175; Kellog v. Robinson, 6 Vt. 276; Holmes v. Buckley, 1 Abr. Eq. 27; Allen v. Culver, 3 Denio, 284, 293; Pom. Eq. Juris. § 689 and n. 5, § 1295 ; Holm. Com. Law, 402. And, in Huston v. R. R. Co., 21 Ohio St. 236, an agreement of the railroad company to keep up the fences and crossings, was held, by this court, to run with the land so as to be binding as between the assignees or grantees of both the parties. And, in the prior case of Easter v. Railroad Co., 14 Ohio St. 48, the agreement of the owner in his grant of the right-of-way to the company to keep up the fences, was, also, held to run with land. Grholson, J., in delivering the opinion, said : “The construction and maintenance of a fence on each side of the strip of land over which the right-of-way was to be exercised, manifestly affected the mode of enjoying it, and it may properly be added," beneficially to both parties.” In this case “assigns” were mentioned. But this is not material, where it may be inferred from the circumstances that such was the intention. Thus in Masury v. Southworth, 9 Ohio St. 340, it was held that a covenant by a lessee to insure ran with the land, and might be asserted by the assignee of the reversion against the assignee of the lessee, though not mentioned, where it appeared from the circumstances that such was the intention of the parties to the covenant. The addition of the agreement to sustain, to the agreement to build the fences, necessarily makes the obligation coextensive with the duration of the grant, and compels the inference that the parties intended to treat it as attending the land of the grantor so long as the way granted should be used for the purpose of a railroad. “An owner may subject his lands to any servitude, and transmit them to others charged with the same; and one taking the title to lands, with notice of any equity attached thereto, or any outstanding right or claim affecting the title or the use and enjoyment of the lands, takes subject to such equities, and such, right or claim, and stands in the place of his grantor, bound to do or forbear to do whatever he would have been bound to do or forbear to do.” Allen, J., in Trustees v. Lynch, 70 N. Y. 449. In equity, the precise form of the covenant or agreement is immaterial, if the intention is reasonably •clear. Thus, it is said : “ It is not essential that it should run with the land at law. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding on him merely because he stands as an assignee of the party who made the agreement, but because he has taken the estate with notice of a valid agreement concerning it, which he cannot equitably refuse to perform.” Whitney v. Union Ry. Co., 11 Gray, 364. Bigelow, J.

But it is not necessary to determine either of these questions. The suit was brought to enforce a claim based upon the obligation of the company, created by the statute (§§. 3324 and 3325, R. S.) to fence its track. It, by way of defense, relied upon a certain agreement as bringing it within the provisions of section 3329. The agreement obliges the owner of the land from which its predecessor acquired its right-of-way, to keep up and maintain the fences along the track on each side; and the plaintiff derives his title from th'e same person. This agreement, whether susceptible of being admitted to record or not, was not recorded until after the suit was brought. And the agreed statement is “ that the plaintiff had no actual notice of the existence of said paper writing.” Now, conceding that there may be some question as to whether such an agreement may be made to run with the land so as to affect a subsequent purchaser, yet, in every case, where it is so held, it is subject to the equitable qualification that the purchaser had ' notice of the agreement. In treating the subject, Mr. Pollock says: “All these rights and liabilities being purely equitable, are like all other equitable rights and liabilities subject to the rule that purchase for value without notice is an absolute defense.” Pol. Cont. 226, Pom Eq. Juris. § 689. And we may further •observe, that to give them such effect as against, a purchaser without notice, would, not only be inequitable, but contrary to the policy of our recording statutes.

The fact that the defendant was in the possession and occupation of its road over the land at the time the plaintiff purchased, does not amount to constructive notice of the existence of such agreement. Such possession would be notice of the usual incidents of such right-of-way, but not of such as are exceptional. The general duty to fence its track is imposed by statute upon a railway-company. This was the statute at the time the plaintiff purchased. The right asserted by the defendant is exceptional to its statutory duty, and its possession was not, therefore, constructive notice to the plaintiff of its existence. There must be some visible material object upon or connected with the land, the sight or knowledge of which would reasonably suggest the existence of the right to constitute constructive notice. Pom. Eq. Juris. § 600. No such object is shown to have existed in this case, from which it might reasonably have been inferred that the owner of the land purchased by the plaintiff, was under an obligation to fence as claimed. Nor had there been any such exaction of the right upon the one hand or performace of the duty upon the other, as would, by its notoriety, have amounted to notice. Had the instrument been properly executed, acknowledged and recorded, it would have constituted notice; but such was not the case; and the rights of the defendant under it are of an equitable nature, and cannot avail against a purchaser without notice.

The provision contained in section 3329, of the Revised Statutes, to the effect that section 3324 shall not be held to affect “any contract or agreement” between “any railroad ” and “the proprietor of lands adjoining” for “the construction and maintenance of fences,” is limited by its terms to parties to the agreement; and, whilst we have no doubt but that such agreements may be made to attend the ownership of the lands adjoining the road, yet this can only be done against those who purchase with notice, actual or constructive.

Judgment affirmed.  