
    HENRY CLARK BRIDGERS v. J. I. BEAMAN et al.
    (Filed 11 September, 1912.)
    1. Railroads — Subscriptions of Stock — Deeds and Conveyances— Escrow — Consideration — Location of Depot — “On” Certain Town Limits — Evidence—Contracts.
    When a deed to lands is given for a subscription to the stock of a railro.ad company in the course of constructing its lines, placed in escrow, to be “null and void” if the grantee “fails to construct a depot on the southern limits of H,” a small town, and where the grantor owned other lands: Held, in an action to com"pel the delivery of the deed, that, construing the word “on” as meaning “near to” the southern limits of the town, the provision >■ upon which the delivery of the deed was made to rest was not complied with by the grantee locating the depot 1,450 feet from the southern boundary, when, from the size of the town, this location placed the depot 100 feet from its eastern boundary, within 300 feet of the northern boundary, thus locating it in the northeastern part of the town.
    2. Same — Town Charier.
    A provision in a deed to lands given for subscription to stock in a railroad, placed in escrow to be delivered when a line of the railroad, in the course of construction, should locate its depot “on the southern limits” of a named town, the location of the “southern limits of the town” is found by referring to the charter in force at jthe time of the deed, and not to that named in a subsequent charter.
    Appeal by plaintiff from Justice, J., at February Term, 1912, of (xREENB.
    Tbe plaintiff, having under consideration the building'of a railroad from Earmville to Snow Hill or Hookerton, was offered inducements by' parties at both places. Among them was J. I. Beaman, who offered and subscribed to pay $1,100 in consideration that the road was constructed to Hookerton and a depot constructed on the southern limits of the town of Hoolcerton Toy 29 March, 1908; that in consideration of the inducements offered by the said Beaman and others, it was decided to build the road to Hookerton, and the subscriptions of the said, Beaman and others were so accepted by the plaintiff; and in consideration of the subscriptions of the said Beaman and others, the construction of the said railroad to Hookerton was undertaken and begun; that the said Beaman concluded to pay a part of his subscription in money and a part in land, and executed the deed set out in the pleadings, of date 11 April, 1906, conveying land to plaintiff; that said deed was deposited with a committee, the defendants, to be delivered to plaintiff when he had constructed the railroad and established the depot he had agreed to. The grantor, Beaman, to more fully protect himself and to insure the construction of the depot on the southern limits of Hookerton, put tbe following clause in said deed: “to be null and void if said Henry Clark Bridgers (tbe plaintiff) fails to construct a depot on southern town limits of Hook-erton, and build a railroad from Farmville to tbe depot in Hookerton by 29 March, 1908.” The said Beaman owned land on tbe southern limits of Hookerton. Under tbe foregoing circumstances tbe deed was executed and placed in tbe bands of tbe committee for future delivery, as events should determine. Tbe plaintiff constructed a depot in Hookerton and built a railroad from Farmville to tbe depot in Hookerton before 29 March, 1908, and demanded of tbe committee, tbe defendants, tbe possession of said deed; they refused to give plaintiff possession of said deed, and tbe plaintiff brings this action against them to compel them to do so.
    Tbe town of Hookerton has bad two charters, one granted in 1867 and tbe other in 1907. According to tbe charter of 1867, tbe depot is located within 300 feet of tbe northern boundary of Hookerton, within 100 feet of its eastern boundary, about 1,450 feet of tbe southern boundary at tbe nearest point, and tbe surveyor, who was introduced as a witness by the plaintiff , testified that tbe depot was not on tbe southern limits at all, according to tbe charter of 1867.
    Tbe defendant paid tbe part of tbe subscription which was to be paid in money, but resisted tbe delivery of tbe deed, upon tbe ground that tbe plaintiff bad not constructed tbe depot on tbe southern limits of Hookerton.
    At tbe conclusion of tbe plaintiff’s evidence, bis Honor sustained a motion for judgment of nonsuit, and tbe plaintiff excepted and appealed.
    
      J. L. Bridgers for plaintiff.
    
    
      J arms & Blow for defendant.
    
   Allen, J.

Tbe plaintiff and the- defendant have made tbe location of tbe depot on tbe southern limits of Hookerton material, because they have stipulated that tbe deed shall be void if it is not so located, and tbe reason the* defendant insisted on this provision is apparent.

The defendant owned land on the southern limits of Hook-erton, which was a small town, and as it was anticipated that its population and wealth would increase after the construction of the railroad, he was desirous of haying the depot located on his side of the town, so that business might be attracted in his direction instead of away from him.

The deed was delivered in escrow in 1906, and we agree with his Honor that the southern limits of Hookerton then in existence, under the charter of 1867, are those referred to; but if it was otherwise, in our opinion, based upon the map, the southern limits under the charter of 1907 are, in so far as they affect the controversy between the plaintiff and the defendant, substantially the same as under the charter of 1867.

The determination of the question presented to us depends, therefore, on the location of the depot and whether it can be said to be on the southern limits. ’

The word “on” has various’ meanings, dependent upon the purposes for which it is used. Webster says: “The general significance of on is situation, motion, or condition with respect to contact or support beneath; as: At or in contact with the surface or fipper part of a thing and supported by it. To or against the surface of. At or near; adjacent to — indicating situation, place, or position”; and the Century: “In a position above and in contact with; used before a word of place indicating .a thing upon which another thing rests or is made to rest. In a position so as to cover, overlie, or overspread. In a position at, near, or adjacent to; indicating situation or position, without implying contact or support. In or into a position in-contact with and supported by the top or upper part of something.”

Adopting the definition most favorable to the plaintiff, “near to,” we are of opinion, when all the circumstances are considered, that the plaintiff has not located the depot "on" the southern limits.

The only witness introduced by the plaintiff, and who surveyed all the lines under an order of court, says that the depot is not on the southern limits -as contained in the charter of 1867, and while, if distance alone controls, tfye depot may be said to be near those limits, it would not convey this impression when the size of the town and the location of the other limits are considered. The town of Hookerton is a small town, and the distance from the northern to the southern boundary is only about 1,750 feet. The depot is within 100 feet of the eastern boundary, within 300 feet of the northern boundary, and 1,450 feet from the southern boundary, which would seem to locate it in the northeastern part of Hookerton and« not on its southern limits.

We conclude that the plaintiff, upon his own evidence, has failed to comply with the condition in the deed, and is not entitled to recover. No question is raised by either party as to the legality of the contract.

Affirmed.  