
    Pittsburg, Fort Wayne and Chicago Railway Company v. Lucius M. Rose et al.
    The owner of a piece of land agreod in writing to convey it to a railroad company for depot purposes, on condition it should be occupied for the western part of the company’s depot-grounds and a part of the usual depot-buildings be erected thereon. It was then expected that the other part of the depot-grounds and buildings would be located acrosa a street adjoining the ground to be conveyed on the east, but nothing was said in the agreement about the location of the eastern part of the depot-grounds and buildings. The company caused to be erected and sustained on said piece of ground a warehouse for the accommodation of the public in doing business on the road, and constructed thereon facilities for loading and unloading live stock, coal, and lumber; but erected the principal depot-buildings forty rods east of said piece of land. Held, that the company had complied with the condition of the agreement, and was entitled to hold the land.
    Error to the District Court of Allen county.
    The original action was brought by the defendants in error, against the plaintiff in error, May 27,1868, to recover possession of certain real estate and damages for the unlawful-detention thereof, from July 1,1862, up to the time of the commencement of this action. The amended answer of the defendant, after admitting the possession, avers, in substance, that on the 23d day of September, 1851, William S. Rose, then the legal owner and possessor of the premises in plaintiffs’ petition described, for a valuable consideration, sold the same to the Ohio and Indiana Railroad Company, and at the same time gave the said company possession of said premises, and entered into a written agreement with said Ohio and Indiana Railroad Company, to convey by release to said company, said premises upon certain conditions set out in said agreement. In pursuance of said sale and agreement, said company took possession of said premises at that time, and in accordance with the terms of said agreement, made valuable and permanent improvements thereon, and permanently located its road upon the other grounds described in said agreement, and said Ohio and Indiana Railroad Company and its successors, including the defendant, have ever since remained in undisturbed and uninterrupted possession of the same, •and have had the entire control thereof, and have duly performed all the conditions expressed in said agreement on its part to be performed; that pi aintiffs are the heirs and legal representatives of said William S. Rose; that the defendant is the legal successor of said Ohio and Indiana Railroad Company; and asks that its title to said premises be maintained and decreed, -and that the plaintiffs may be required to execute the deed of release as aforesaid to the defendant. The copy of the agreement attached to the answer is as follows:
    
      u I hereby agree with the Ohio and Indiana Railroad Company to convey by release to said company the right of way, two rods in width along the north line of my land, in section 31, in Bath, township, Allen county, for the line of road, and the right of way, four rods in width, across the east half of the southeast quarter of section 25, in German township, for the line of said road. Also, to convey them a lot of ground six rods wide from north to south, and twenty rods long, from east to west, to be bounded north by said right of way in section 31, Bath township „ east by a line corresponding to the center of Main street, in the town of Lima; the south and west lines to be at right angles with the other two lines, for the purpose of a depot for the use of said road. This agreement' is made upon condition that the Ohio and Indiana Railroad shall be permanently located upon said right of way above described, and that said lot of ground above described be occupied for the west part of the depot and a part of the usual buildings erected thereon; and further, that I am to have abundant facilities for connecting my lots with said road, on the usual terms adopted by the Ohio and Indiana Railroad Company, on the line of their road.
    (Signed-,) “ W. S. Rose.
    
      41 Lima, September 23,1851.”
    
      The reply denies that said Rose, on said 23d day of September, or at any other time, for a valuable consideration, sold and gave possession of said premises described in petition to the Ohio and Indiana Railroad Company; admits the agreement attached to the answer, but says it was wholly without sale from said Rose to said company, and without any valuable consideration paid or agreed to be paid by said company therefor ; denies that said Ohio and Indiana Railroad Company, or any of its successors ever occupied said premises described in the petition, for the west part of its depot, or that it or any of its successors ever erected any part of the usual depot-buildings on said premises. But, on the contrary, the said plaintiffs say, that the said Ohio and Indiana Railroad Company, on or about the month of-, a. d. 1854, purchased, took possession of, occupied, and permanently located and erected the whole of their depot-buildings on premises situated on the line of said road, more than forty rods east of the premises described in the petition, and that the said Ohio and Indiana Railroad Company, and all its successors, does now and has ever failed to occupy and use said premises for the west part of the depot for said road, and to erect a part of the usual depot-buildings thereon; denies that said Ohio and Indiana Railroad Company, or its successors, and the defendants, have duly performed all the conditions expressed in said agreement on its part to be performed; admits that they are the heirs at law and legal representatives of said Rose, and that the defendant is the legal successor of the said Ohio and Indiana Railroad Company.
    Upon the trial of the case, on appeal, in the District Court, the testimony offered in evidence by the defendant was in substance as follows :
    W. S. Rose and William McHenry were owners of a good deal of ground, in the town of Lima, and interested in the place the Ohio and Indiana Railroad should be located ; and as a consideration for locating the road where Rose and McHenry desired, the company, among other things, asked for the ground upon which to put the different buildings. Accordingly, Rose gave as his share the land in dispute, and McHenry .an equally large piece on the other or east side of the street. At the same time Rose made the agreement, which is set out in defendant’s answer, with said Ohio and Indiana Railroad Company. McHenry made a like agreement with same company, except names! and description of land; and by McHenry’s agreement, the east part of the depot and a part of the usual buildings were to be erected upon the land described in his agreement. Rose’s land lay on the west side, and McHenry’s directly opposite on the east side of Main street, in said town of Lima. The road was located upon the right' of way described in Rose’s agreement, and has been kept there ever since; and as soon as the trains were running upon said railroad, a warehouse, such as is usually put up along railroads for the receiving of grain and freight, was-put upon the ground described in Rose’s agreement, which was some time in 1855. Said warehouse was used'by said company as its stopping-place until it put its other depot-buildings at the crossing of its road and the Dayton and Michigan Railroad, east of, and about forty rods from said land of Rose’s, and upon McHenry’s land. The depot of the defendant is now, and has been for ten or fifteen years, at the crossing of the defendant’s road and the Dayton and Michigan Railroad. The defendant has put and maintains its cattle or stock yards and coal and lumber yards upon this land of Rose’s, ahd a platform for loading and unloading freight. After the defendant had put up the buildings at the said crossing of the two railroads, there was very little freight at the warehouse, but it has been used some of the time for storing and shipping some goods.
    At the time Rose and McHenry made their agreements with defendant, it was the understanding that the defendant’s depot-buildings were to be where the railroad crossed Main street; but no arrangement was made as to exactly what buildings were to be put upon each lot.
    The following is the contract of the Ohio and Indiana Railroad Company with Taylor & Iioover for building the said warehouse, put in evidence by the defense: .
    “ The Ohio and Indiana Railroad Company agrees to lease to Taylor & Hoover, of Lima, Allen county, Ohio, for the term of five years, so much of the grounds (known as the depot-grounds), in the said town of Lima, as may be necessary for the construction of a warehouse, and for the approach of teams thereto ; the location of said warehouse to be west of Main street, and south of the railroad, commencing forty feet west of Main street.
    “ The railroad company agrees to construct a side-track to said warehouse as soon as may be necessary, for the convenience of loading. The said railroad company reserve the right to take possession of said warehouse, whenever the owner or occupants fail, for good and sufficient cause, to satisfy the company or the public therefor, for such a reason able value as may be assessed by three disinterested persons, to be chosen in the usual way of selecting arbitrators. It is further agreed by the said railroad company, that at the expiration of the five years, or at the taking possession of said warehouse, there be chosen as above, three arbitrators, who shall assess the value of said warehouse and fixtures ; and said railroad company agrees to pay the amount so assessed to Taylor & Hoover, or their assigns, for the same, provided that the said railroad company wishes to occupy said building — if not, then this lease to continue from year to year, until said railroad company may wish to occupy the same, they giving three months’ notice of said intention.
    “ It is agreed by Taylor & Hoover, of the second part, that they will handle and store (for a reasonable time), all the rolling freight going from or coming to said town belonging to the company, or to residents of the town, where said building is located, free of charge or compensation, and to and from non-residents, at a i’ate not exceeding those charged at inland points on the canals and railroads of Ohio.
    “ All storage of grain and other articles upon which storage and commission are chargeable, shall be uniform and reasonable. And it is further agreed that, so far as practicable, all persons wishing storage are to be accommodated for a reasonable time. The rolling-freight for citizens thus passed through said warehouse, is distinguished from the storage and handling of grain, which latter shall be subject to the same charge as non-residents. This last not to be transferred without the consent of the company.
    “ In testimony whereof, I, Samuel Hanna, president of said railroad company, have hereunto set my hand, this 14th day of September, 1855.
    “ Ohio and Indiana Railroad Company,
    
      uJBy Samuel Hanna, President.”
    
    By indorsement on the back of this agreement, Taylor & Hoover assign to R. Metheany, the company approve the assignment, and R. Metheany assumes and agrees to discharge all the responsibilites of the contract.
    There is no claim that the contract has not been duly executed and performed.
    The plaintiffs offered testimony tending to show that the usual buildings for depot purposes are the places at which cars stop to receive and discharge freight and passengers, and do the business generally of the road at that place: that the depot and depot-buildings of the defendants are at the crossing of the defendant’s and the D. & M. Railroad, and that there the defendant receives and discharges freight and passengers; that when freight is taken to another building for storage, it would be a store-house, and not a depot-building; that cattle-yards and pens, and also grounds for placing coal, lumber, and such things, were not a part of the depot, though necessary and usual for the business of railroads.
    The District Court rendered a judgment for the plaintiffs, that they recover the premises in their petition described, and ordered that the prayer of the defendant be dismissed. The defendant moved for a new trial, which motion was overruled.
    
      To reverse the judgment, orders, and decrees of the District Court, this writ is prosecuted.
    
      Irvine § Brice, for plaintiff in error:
    The main question in this case is, have the Ohio and Indiana Railroad Company and its successors, this plaintiff" in error, in good faith, fulfilled the second consideration of their written agreement with Rose, to wit, occupied the-ground described in said agreement “for the west part of the depot and a part of the usual buildings erected thereon ? ”
    "We think they have, and in the manner contemplated by the parties at the time.
    From the nature of the case, the Ohio and Indiana Railroad Company had to take possession of the ground before they could perform the conditions of the agreement.. This makes the condition in question a condition subsequent. Underhill v. Saratoga Railroad, 20 Barb. 460; Nicoll v. N. Y. & Erie Railroad, 12 Barb. 460; 2 Kern. 121; Findlay v. King’s Lessee, 3 Peters, 346; Martin v. Ballou, 13 Barb. 133; Hayden v. Stoughton, 5 Pick. 534.
    The company took possession of the lot forthwith, put it to-the use for which it got it, and it and its successors have-kept possession of it up to the time suit was commenced.
    A court of equity never lends its aid to divest an estate-for the breach of a condition subsequent, except in extreme cases, and the condition clear and unambiguous. 4 Kent’s Com. 129, 130; Thompson v. Thompson, 9 Ind. 323; Wilson et al. v. Galt et al., 18 Ill. 431; Gadberry v. Shepard, 27 Miss. 203; Merrifield v. Cableigh, 4 Cush. 178; Bradstreet v. Cableigh, 21 Pick. 389; McWilliams v. Nisley, 2 S. & R. 513; Fry on Specific Performance, par. 783, and cases there cited.
    Rose did not intend to stipulate for the erection of any particular building on this lot, but intended to let the necessities and convenience of the railroad determine what brailding should be built on it. His object was to secure the location, of the road on the route he had selected. If he had intended to stipulate that the passenger and freight ■depot should be erected on this lot, why did he not write ■“ passenger and freight depot,” instead of “ a part of the usual buildings ? ” The use by him of this little expression ¡shows that he did not intend to bargain for any such thing. The court will not now enlarge and give a definiteness and ■force to the expression, “ a part of the usual buildings,” that Rose himself did not do, in order to work a forfeiture of an existing estate.
    Ey the written agreement for the erection of the warehouse, peculiar privileges were reserved for the public and the railroad in lieu of rent. The warehouse has always •been used for the purpose for which it was built; and the company built and maintains on this lot of land cattle-yards, pens, chutes, and platforms, and other facilities for loading and unloading stock and freight, all necessary for the business of the railroad at that station, and make a ■substantial compliance by the company and its successors with the conditions of the agreement.
    The word depot was not used by the parties to this agreement in the sense experts use the word. The parties meant all the ground on which the company chose to erect buildings, or use for other purposes, at the station of Lima. They did not mean, when they used the word “ depot,” a building, but a lot of land on which to erect buildings.
    The breach complained of occurred in 1854. This action was brought in 1868, after a lapse of fourteen years; and in all that time, neither Rose nor his ancestors have made any complaint. Immense interests have grown up, and large expenditures have been made, upon the faith of this acquiescence of the defendants in error, during this long period, in the acts of -the plaintiff in error, and it 'is now too late to complain. Goodin v. Cincinnati and Whitewater Canal et al., 18 Ohio St. 169; 6 Ohio St. 136; Kellogg v. Ely, 15 Ohio St. 64.
    
      
      Isaiah Pillars, for defendants in error:
    I. The defendant below asked for a decree against the plaintiffs below, for a specific performance of the agreement to convey the premises in dispute. The District Court did not err in refusing such decree.
    A party seeking a specific performance of an agreement must show that he has performed or offered to perform, on his part, the acts which formed 'the consideration or inducement of the promise, on the other part. Brown v. Haines et al., 12 Ohio, 1-10; Colson v. Thompson, 2 Wheaton, 336; Watts v. Waddle, 6 Peters, 389; also, 3 Peters’ Condensed, 522; McNeel v. McGee, 5 Mason, 244, and note 3 on pp. 255, 256; Longworth v. Taylor, 1 McLean, 395; Vail v. Nelson, 4 Rand. 478; Fuller v. Williams, 7 Cowen, 53; Myers v. Watson, 1 Simons (Eng. Ch.), 522; Beaumont v. Dukes, Jacob, 422; Donaldson v. Weakly, 3 Yerger, 178; Roger v. Salmon, 8 Paige Ch. 559.
    What was meant by the parties at the time of entering into this agreement was clearly this: Rose, in effect, said: “ I will give you ground, two rods wide, for the right of way, .and a lot of ground, sis rods by twenty rods in size, to be occupied as a part of the depot-grounds and a part of the usual buildings to be erected thereon, if you will establish your road on this line, and your depot at the crossing of Main street and the proposed road.” This was just what the proposition meant, and the company said it would do. The company constructed its road over the right of way thus given by Rose, and took possession of the other lot- of ground, but built its depot forty rods east of that point, at the crossing of the Dayton and Michigan road with its own.
    The pretended compliance of the defendant below, and its predecessors, with the terms, conditions, and purposes for which Rose agreed to give this lot of land, was to authorize a private party to erect a grain and produce warehouse on this lot for his private purposes, with the right on the part of the company to store freight there (which the proofs show it did occasionally only), and that cattle-yards have been constructed on a part of the lot. This is; not a compliance with the conditions and purposes for which the lot was agreed to be given by Rose.
    II. The premises being granted or agreed to be granted' for a specific use or purpose, can not be acceqffed, held, and diverted to another and distinct purpose, but can alone be-used and held for the purpose and use for which it was-granted or agreed to be granted.
    The premises in dispute are not used for the purpose for which Rose agreed to make the conveyance of them, and. hence the premises absolutely revert to the heirs of Rose,, the plaintiffs below.
    III. Time is to be regarded as the essence of the contract, where the parties have so stipulated or the nature off the circumstances would infer it. Vide Highley v. Whitaker, 8 Ohio, 198; Kirby v. Harrison, 2 Ohio St. 326; Brock v. Hidy, 13 Ohio St. 306; 6 Wheaton, 6; 1 McLean, 401; Fry on Specific Per., secs. 709-715, 719; 6 Peters, 389; 5 Mason, 244.
    It is urged by counsel for plaintiff in error that this action on the part of the plaintiffs below (the heirs of Rose)is to declare a forfeiture, and therefore woi’k a destruction of an existing estate; and numerous authorities are cited,, to the effect that a court of equity never lends its aid to-divest an estate for the breach of a condition subsequent. The argument would be good if it applied to the case at bar.
    The case, however, is, that the legal estate to the lot in dispute is in the plaintiffs below. They bring their action at law to recover the possession of the premises. The defendant below admits that the legal estate is in the plaintiffs, and sets up, by way of answer, in the nature of a cross-petition in equity, an agreement on the part of Rose, the-ancestor of plaintiffs, for the conveyance of the premises-to the railway company upon certain conditions, which conditions the defendant below avers it has performed, and. asks a decree for the conveyance of said premises to it. Thus, there is no question as to the forfeiting of a vested «state. The sole question is, Is the defendant below entitled to the affirmative relief prayed for in its cross--petition ?
    The ease of Goodin v. C. & W. Canal Company, 18 Ohio St. 169, does not apply to the facts of the case at bar.
   Day, C. J.

The controverted point in the case is, whether the railroad company performed the conditions of the agreement between the original parties. Three things were to be done by the company: 1. It was to locate its xoad upon the right of way described; 2. It was to occupy the ground in question “ for the west part of the depot ;and a part of the usual buildings erected thereon; ” 3. It was to give the grantor the usual facilities for connecting his lots with the road.

There is no dispute but that the first and third conditions have been performed. The controversy relates to the second. This condition is in the nature of a condition subsequent; for it contemplates an immediate interest in .and possession of the land, and the subsequent erection of the buildings thereon. The company can not in equity be •divested of this interest in the land and its improvements thereon, if it has complied with the exact requirements of the agreement. We must, then, determine the meaning of the language used in the condition in controversy. The ground was to “be occupied for the -west part of the depot .and a part of the usual buildings erected thereon.” The .ground, it is to be noticed, was to be occupied for “ part ” •only of the depot and buildings of that station. The word “ depot” is not used here to mean a buildiDg; for a street intervened to prevent a union of the “west part” of a building with an eastern part thereof. Besides, part of the usual buildings were to be erected “ thereon.” Clearly, the words, “ the depot,” mean the entire grounds used by the company for its business purposes with the public at that station. The land in controversy was to be the “ west part ” of the depot-grounds, and a part of the usual depotibuildings were to be erected thereon. What particular kind of tbe usual buildings were to be erected is not specified. Tbat is left to the discretion of tbe company. Tbe agreement contemplates tbat tbe depot grounds and buildings at tbat station were to be in two parts. Though it was doubtless supposed tbat tbe two parts would be separated only by a street, still it is to be observed tbat no-allusion is made in tbe agreement as to tbe location of the eastern part of tbe depot grounds or buildings tbereon. It is, however, clearly implied tbat they are to be part of tbe depot grounds and buildings at tbe same station. Further than this, their location, whether near or remote,, does not strictly affect this agreement.

Since, then, tbe eastern part of tbe depot grounds and buildings are located at tbe same town and substantially at tbe same station, it only remains to consider whether tbe land in question is occupied for tbe western part of the depot-grounds, and whether part of tbe usual depot-buildings are erected tbereon. Indisputably, tfie company took possession of tbe land, and used it for depot purposes. At first, its chief business with tbe public was transacted there. Tbe company caused a building to be erected tbereon, which, though built by other parties, was to be for tbe accommodation of tbe public in its business with tbe road, and is kept subject to tbe control of tbe company. Moreover, the. company has constructed on tbe ground facilities for the-loading and unloading of live stock, lumber, and coal. Tbe transportation of cattle, grain, lumber, and coal form no inconsiderable part of tbe business of railroads, and: depot facilities for freights of these classes are as necessary as they are for any other freights, and are required to be-of a special character suited to tbe business. Here, then, is a depot for tbat class of business, with tbe usual building and structures required for tbat purpose. Strictly considered, then, tbe conditions of tbe agreement have been fulfilled. Tbe land is occupied for tbe west part of tbe depot-grounds, and a part of tbe usual buildings used for depot purposes have been erected tbereon. Tbe contract requires nothing more. If tbe ordinary passenger and freight depot-building bad been located immediately on tbe east side of tbe street bounding tbe land in controversy, it would not have been doubted but that-it was the west part of tbe depot grounds, containing part of tbe usual buildings for conducting the railroad business of that station. Tbe doubt arises because tbe eastern part of tbe depot buildings are so far east of tbe western part. But tbe contract contemplates that tbe depot is to be in parts; and the location of tbe eastern part, so it is at tbe same station, is neither expressly nor impliedly provided for in tbe agreement. Eor aught that appears, this separation of tbe parts of tbe depot facilities is as convenient for tbe public, and as well subserves tbe interest of tbe plaintiffs below, as would a nearer location of tbe parts of tbe depot structures. Tbe long acquiescence of all parties in tbe present situation of tbe buildings and depot business tends to that conclusion.

Sufficient was done by tbe company to be regarded as a substantial compliance with tbe written conditions of tbe agreement. So long as it continues to comply therewith, it is entitled to the enjoyment of tbe premises. It follows that tbe decree of tbe court below, in favor of tbe defendants in error, was wrong.

Judgment reversed and cause remanded.

McIlvaine and Welch, J.J., concurred.

Stone and White, JJ., dissented.  