
    Day, Williams & Co. v. Railroad Company.
    A railway company entitled by contract to a deed for a definite strip of ground for a right of way, completed its track along said strip, near its center, and was in actual possession and use of said track: Meld— Such possession included so much ground (not adversely held by another), upon either side of said track, as was reasonably necessary for the convenient use and maintenance of the railway, in the customary mode, and was constructive notice, to a subsequent purchaser, of the actual equitable title of the railway. McKenzie v. Perrill, 15 Ohio St., 162, and Williams v. Sprigg, 6 Id., 585, followed and approved.
    Error to the District Court of Portage County.
    By contract dated July 18th, 1864, Marvin Kent agreed to convey to Edward L. Day, Charles T. Williams and Edward P. Williams, composing the firm of Day, Williams & Co., “that lot of land and the buildings and improvements thereon known as the Franklin Glass Works, situate in the township of Franklin, Portage county, Ohio, bounded and described as'follows: Beginning on the west side of Canal street at a point where a continuation of the south side of Mill street, in the town of Franklin, intersects the same ; thence west along the line of a continuation of the south side of said Mill street to the east line of the Ohio and Pennsylvania Canal; thence following the east line of said canal in a southerly direction to a point where a line drawn from the south-west corner of said land, owned by - Smith, on the county road from Ravenna to Stow Corners to the south-east corner of the stone wheel house of Kent’s grist mill, situate on the west side of Cuyahoga river, in said Franklin, would intersect said east line of said canal; thence easterly following the line from the mill to Smith’s land referred to, to the west side of Canal street in said town of Franklin; thence northerly along the line of said Canal street to place of beginning, subject to all legal highways and the rights of the Atlantic & Great Western Railway Company as per contract between said company and M. Kent, G. W. Wells and C. H. Kent.”
    Day negotiated the purchase. When he saw, in the draft of the proposed contract, the clause making the conveyance subject to the contract rights of said railway company, he asked Kent “ where that contract was.” Kent replied, “ In the railroad office.” Day- went to the office and asked Acting Secretary Brainard to let him see the contract. It was handed to him. It read thus:
    “This agreement entered into this 31st day of January, A. D. 1855, between the Atlantic and Great Western Railroad Company, of the first part, and George W. Wells, Charles H. Kent and Marvin Kent, of the second part, witnesseth:
    “ That, for the right of way for said company’s road, (a description and plat of which is hereto attached and made part of this agreement), and also for all damages resulting to the glass factory of said second party, by compelling them to remove any buildings on said roadway, or by inconvenience to said factory, or otherwise, said first party agrees to pay to said second party the sum of eight thousand dollars, in manner following, to wit: One thousand dollars in cash, on demand, and seven thousand dollars in real estate at cash value, said real estate to be selected by said second party, the conveyance of said real estate to be made to said second party when -the right of way, above referred to, is conveyed to said first party, which is to be done when demanded.
    “ Said first party further agrees to plank their track as soon as the same shall be laid down along by the factory of said second party, convenient for trains to pass over.
    “Atlantic & Great Western Railroad Company,
    “By B. F. Roberts, Agent.
    
    “ George W. Wells,
    “Charles H. Kent.
    “ January 31, 1855.”
    No description, or plat, was then attached to the contract. In the upper left hand margin of the paper were two very small holes, not larger than an ordinary pin would make. Brainard told Day that they had no other contract, and that he knew nothing of any plat; that if one had been made the engineers would probably have it. Day made no inquiry of the engineers, but brought Marvin Kent into the railroad company’s office. Day thus testified as to what ensued:
    “ I showed him the paper and told him what Mr. Brainard had said, and Mr. Brainard also repeated to him what he had said to me ; it was in the nature of conversation. I asked Mr. Kent if this was all the paper there was. He said it was all the contract there was. I told him, as I had told Mr. Brainard before, that I wanted to know what the rights of the company were there before I purchased. I asked Mr. Brainard before this whether this paper represented all the rights that the company had. Pie said it represented all they had except what they were actually occupying — used language to that effect, and almost those words, I think, and that also was repeated to Mr. Kent. I don’t know that at that moment he made any reply to it, except in a general way to say that this was the paper that defined all their rights in the premises; but afterward, as we went out, Mr. Kent said, ‘ You can see what they have got here.’ When I asked him what their rights were, he says, ‘ You can see what they have got’ — used that expression.” At that time there were no buildings on said premises within twenty-three feet of the center of the main track on one side, or within twenty-two feet of said center line on the other side, except an old frame lime house about 16 feet by 24, of little value. This extended about four feet within the forty-five feet strip.
    Day asked and obtained permission to submit to his counsel the paper dated January 31,1855. His counsel advised that the railway company could hold only so much ground as was then covered by their tracks. Relying upon this he and*his partners executed the contract of purchase'; paid IIO^ST-^q as purchase money, and received from Kent and wife a general warranty deed dated March 3d, A. D. 1868. This deed conveyed the premises “ subject to the rights of the Atlantic & Great Western Railway Company as per contract between said company and M. Kent, G. W. Wells, and C. H. Kent, bearing date January 31, 1855.”
    Kent had not signed the paper shown to Day by Brainard because he was then president of the railway company, but he had verbally authorized his brother and Wells to make the agreement. Kent told Brainard of this on the day Brainard showed him the contract. He had also signed a duplicate of said paper which remained in his possession, but Day had no knowledge of that fact. Kent was also president of the railway company when he negotiated with and sold to Day, Williams & Co., but he expressly referred Day to the office of the railway company for information as to its rights, and made no statement on behalf of the company. Neither Brainard nor Kent attempted to indicate, or point out, to Day the limits of the right of way. Day asked no one to do so.
    In 1863 the railway company completed a main track across the land in question. A switch track was partially completed before Day was there in 1864. The cross ties in these tracks were nine feet long; the cars for passengers required some inches more than eleven feet for a passage. On the land was rock through which cuts had been made for the two tracks varying from two to six feet in depth. Day, Williams & Co. went into possession in July, 1864, and quarried the remaining rock down to, and in some places below, the level of the tracks; using it for building purposes, and also for making glass. To this the railway company made no objection. It laid other tracks, to enable it to readily ship from and to Day, Williams & Co. That firm constructed additional buildings. The Atlantic and Great Western Railway Company became insolvent and, in due process of law, the New York, Pennsylvania and Ohio Railroad Company succeeded to all of its rights.
    According to Marvin Kent’s testimony, D. C. Shepherd, engineer of the A. & G. W. Railway Company made the first plat of the right of way in question, at the time the contract of 1855 was made, or soon after: “ he surveyed the ground out and platted it and ordered the pot house removed and the snider ovens, that were in the right of way.” This removal was done before 1863. This first plat showed a right of way fifty (50) feet wide. This plat was lost, but a map of the village of Kent, made in November, 1855, showed the right of way as indicated , by it. At some time prior to 1864, the width of the right of way was reduced to forty-five feet; — the centre line remaining the same; and the consideration to be paid was reduced to 17500. A new plat was then made, showing the reduced width, and its description was written out. Neither plat, nor description, was in Brainard’s office, or under his control, or known to him, when Day called at his office in July, 1864. Brainard then told pay that if there was a plat and description they would be in the engineer’s office. Day made no inquiry there. As the railway company did not complete its payment for the right of way until after Day and .his partners had received their deed, Kent did not make the deed for the right of way until 1865, or later. Day and his partners, with the knowledge of the railway company, erected additional substantial buildings so that they, in places, extended more than two feet within the forty-five feet strip, and the railway company has never attempted to enforce their removal.
    In A. D. 1881, the railway company attempted to extend one of the side tracks, which had been laid alongside of one of the buildings of Day, Williams & Co., so as to connect at its other end, with the main track. This was within the forty-five feet strip, but outside of the spaces occupied by the track, and side track of 1864. Day, Williams & Co. sought, by civil action, to enjoin this extension. The common pleas granted their prayer. On appeal, the district court refused an injunction and gave judgment in favor of the railroad company. Day, Williams & Co. ask a reversal of this judgment..
    
      
      Myron A. Norris, Greo. T. Bowden and W. W. Boynton, for plaintiff in error.
    
      L. A. Bussell, for defendant in error.
   Granger, C. J.

We are satisfied with the finding and decree of the district court. Although no description, or plat, was actually attached to the copy of the contract of 1855, when handed to Day, that copy recited that such papers were attached to it; and pin holes in its upper left hand margin indicated how the attachment had been made. Day was told-that Brainard knew of no plat, or description ; and was referred to the engineer’s office. He was not told that Brainard had any knowledge of the contract when made; he appeared to Day solely as the incumbent of an office containing the files in which the paper was found. "We find no evidence tending to show any misrep-, resentation, or any intent to deceive Day. They told him, —as did the paper, — that the railway company had bought a right of way across said premises, and that he could see what they had got. He could see a space about fifty feet wide; through it, near the centre, ran the main track complete ; also a side track partly completed. No building trenched upon this space except about four feet of the worn-out frame lime house. It is not probable that either Kent or Brainard imagined that Day would understand these words, “ you can see what they have got,” as referring only to the ground covered by the cross-ties, or included between the sides of the rock cut. Necessarily a right of way includes more space than is covered by the cross-ties. The cars require more than that for their passage; the track needs drains; ties and rails decay or wear out; the old ones must be removed, and new ones must take their places. Pending such work the material must lie alongside the track, beyond the drain. Workmen must have passage way to and fro, outside of drains. The possession by the railway company included not only the ground covered by the cross-ties, and within the walls of the cuts, but also so much of the vacant ground on both sides of the tracks, as was reasonably necessary for operating aiid maintaining the railway in the customary mode. The possessor of a dwelling house also possesses its curtilage; the operator of a factory holds also the means of ingress and egress, and such adjacent ground within the same premises as is required for deposit of material, or waste. The holder of a farm possesses not only the ground covered by the farm buildings or cultivated by his plows, but the pastures and the woodland of the farm.

The second * paragraph of the syllabus in Williams v. Sprigg, 6 Ohio St., 585, holds thus: “ Constructive notice of a prior equity, arising from the use and occupation of land, must, to charge a subsequent purchaser, be communicated by such acts as can be readily seen and understood— by something so tangible in form as to induce inquiry about the ownership and extent of the right thus to occupy.” Under this doctrine, if Day had learned nothing from either Brainard or Kent, the use of the track as laid, (there being no evidence of possession hostile to the railway except the buildings themselves,) would have been notice to him that the company held a right of way for their railway in those premises. His mistake was in supposing it notice only of a right to keep the two tracks there. In law, such “ right of way ” included, as already shown, the free use of so much ground upon both sides of those tracks as was required for the convenient and customary use and maintenance of the railway, not exceeding the space plainly in possession of the factory owners by their buildings and appurtenances.

In addition to this notice, Day was expressly told that it was a right of way valued at four-ninths of the entire premises and calling for the removal of buildings by the factory owners ; that its limits were defined by a plat, and that the railway civil engineers were the proper, and probable, custodians of the plat. Placing upon the facts the construction most liberal towards Day, that can reasonably be applied, — those facts, as known to him, showed that the limits of the right of way were somewhere between the outer ends of the cross-ties and the walls of the factories. He was content to complete his purchase without asking where those limits were.

The fact that the railway company did not prevent Day, Williams & Co. from quarrying and using the stone lying in the rocky bed of the right of way, could not, and did not, deprive it of any right in the remaining rock, or in the way.

' The extension of the track complained of will not interfere with any structure that stood on the land in July, 1864, or that has been built since. The railway company has made no attempt to interfere with any of the erections of Day, Williams & Co; and, so far as the record shows, has no wish or intent to do so. The judgment of the district court is therefore

Affirmed.  