
    A. M. Huston v. The Cincinnati and Zanesville Railroad Company.
    In a proceeding by a railroad company in the probate court to appropriate private property, after the company had filed its “ statement " describing the parcel of defendant's land which it desired to appropriate, and after the jury impanelled in the cause had viewed the land, the record of the proceeding recites that an agreement was entered into between the parties to this effect: In consideration that the defendant had withdrawn from the jury all claim for damages on account of the necessity which would be occasioned by the appropriation for the erection of fences along the line of the road, and convenient crossings over the road, the company agreed to erect and forever keep up the fences and crossings in a specified manner. The jury thereupon assessed the damages, denominating them in their verdict as the damages which would be sustained by reason of the appropria tion of the property in said statement mentioned. The sum so assessed was paid into court by the company, and it took possession of the property so condemned. In an action by the assignee of the owner against the assignee of the company, to recover damages for failure to erect said fences and crossings — held,
    1. That the agreement so embodied in the record is a legitimate part thereof, having in law all the force of a contract of record, and is not void as being within the statute of frauds.
    2. It is an agreement which runs with the land, so as to be binding as between the assignees or grantees of both the parties thereto.
    3. In an action by the vendee of the original owner against the vendee of the company, for failure to build said fences and crossiugs, the rule of damages is the amount of injury to the use and enjoyment of the adjoining land, occasioned by the want of such fences and crossings, during the time the railroad, or right of way, was owned by the defendant.
    Error to the court of common pleas of Muskingum county. Reserved in the district court..
    In the common pleas a judgment was entered for the defendant, on a general demurrer to the plaintiff’s petition, and the case reserved for decision here is a petition in error to reverse that judgment. The only question, therefore, is, whether the original petition sets forth a good ground of action. It is as follows :
    “Plaintiff says that formerly, and in 1853, Solomon Sturges was the owner of a tract or parcel of land in said county of Muskingum, and while he was so the owner thereof, the Cincinnati, Wilmington and Zanesville Railroad Company, incorporated under the laws of Ohio, on the 25th day of April, 1853, commenced proceedings under the statutes of said State, to appropriate so much of said land as was necessary for the purpose of a road way for the railroad of said company, through the same, and extending in length through the said land fourteen hundred and fifteen feet: that said proceedings were commenced in the probate court within and for said county.
    “ Plaintiff further says, that m said proceedings before said court, in the hearing and trial of said cause, in consideration of the premises and for the consideration hereinafter shown, by the consent of the said parties to said ause, there was entered of record in said court and in said cause the matters set forth in exhibit “A,” hereto attached and made a part of this petition.”
    The exhibit referred to, omitting so much thereof as it is unnecessary to recite here, is as follows :
    “ The sheriff having returned with the jury from viewing the premises, and the cause coming on to be heard, and now come the parties by their attorneys and entered into the following agreement with regard to fencing and cross-ways, to-wit:
    “ In consideration that the said Solomon Sturges, upon the trial of this cause, has, at the instance and request of the Cincinnati, Wilmington and Zanesville Railroad Company, withdrawn entirely from the consideration of the jury all claim for compensation on account of the fences to be made for the protection of his remaining lands (and of his stock and property thereon), lying along and on each side of said parcel of land so by said company appropriated, as in the statement in this cause mentioned, such fences being made necessary by reason of the appropriation aforesaid ; and has also in like manner withdrawn all claim for compensation on account of the cross-ways over said parcel so appropriated, and over the said road to be constructed thereon, becoming necessary by reason of said appropriation to enable the said Solomon Sturges, his heirs and assigns, conveniently to pass and repass over said parcel of land so appropriated, and over the said railroad from the lands of the said Solomon Sturges being on the one side thereof, to his lands lying on the other side thereof, the said Cincinnati, Wilmington and Zanesville Railroad Company have agreed, and now here in open court do agree, with the said Solomon Sturges, his heirs and assigns, that the said company will make and erect, for the purpose aforesaid, along and on the entire length of the lines on each side of the said parcel of land so appropriated as aforesaid, good and sufficient fences, five feet high, to be made of posts and boards, and also will always repair, maintain and keep up the said fences in good condition, all at the cost and expense of said company, and with out any liability therefor at any time by way of contribu tion or otherwise on the part of the said Solomon Sturges, his heirs or assigns ; and also will make and construct for the accommodation of the said Solomon Sturges, his heirs and assigns, two good and sufficient cross-ways, with proper cattle pits on each side thereof, over the said parcel of land so appropriated, and over the said road to be thereon constructed, the same to be located at the places heretofore by the said parties indicated therefor upon the ground, so as always to enable the said Solomon Sturges, his heirs and assigns, conveniently to pass and repass over the said parcel so appropriated and over said railroad, from the lands of the said Solomon Sturges on the one side thereof, to his lands on the other side thereof, and always to have access to and from the same to any turnpike or public highway, and this too with implements, wagons, carriages, and other vehicles, and with horses, cattle and other stock, as well as on foot, and also by their agents and servants, as well as by themselves, and for all purposes whatsoever, provided, however, that the use of such cross-ways by said Solomon Sturges, his heirs aud assigns, shall at no time interfere with the necessary and reasonable use of said railroad by said company, and also always to repair, maintain, and keep up the said two cross-ways in good condition, all at the cost and expense of the said company and without any liability therefor, at any time by way of contribution or otherwise, on the part of the said Solomon Sturges, his heirs and assigns ; and also has further agreed, and now here in open court does further agree with the said Solomon Sturges, his heirs and assigns, ****** and it is now hpre in open court further agreed by both the parties thereto, that the agreement aforesaid shall be here entered of record in this cause, and that such record shall be a perpetual memorial thereof; all which is now accordingly here done. April 30, 1853.
    “Now come the parties, the Cincinnati, Wilmington & Zanesville Railroad Company, by Goddard and Eastman, their attorneys, and Solomon Sturges, by C. C. Convers, his attorney, and submitted the cause to the jury upon their own examination. Whereupon the jury retired to consider of their verdict, and afterwards, on the same day returned into court, and on their oaths aforesaid did find and say that they did estimate and assess the amount of compensation and damages in money which the said Solomon Sturges will sustain by reason of the said appropriation of the property in said statement mentioned, to the use of the Cincinnati, Wilmington & Zanesville Railroad Company in the proceedings herein, at the sum of one hundred and seventeen dollars. It is therefore considered and ordered by the court that the said verdict bo and is hereby confirmed ; and it is by the court further ordered that the said Solomon Sturges recover of the said Cincinnati, Wilmington & Zanesville Railroad Company, the said sum of one hundred and seventeen dollars damages, together with costs taxed in this case.
    “Afterward, May 2, 1853, came the Cincinnati, Wilmington & Zanesville Railroad Company, by John A. Adams, their agent, and deposited in said probate court the sum of one hundred and seventeen dollars damages, together with the costs taxed herein. It is, therefore, by the court further ordered, that the said Cincinnati, Wilmington & Zanesville Railroad Company hold the property, in said proceedings mentioned, for the purpose for which the same was appropriated.
    “ Plaintiff further says, that the said Cincinnati, Wilmington & Zanesville Railroad Company, under and by virtue of the judgment and proceedings aforesaid, in said probate court, took possession of said land so sought to be appropriated as aforesaid, being in length through said land 1,415 feet, and used and occupied the same as and for the purposes of a road-way for said railroad.
    “Plaintiff further says, that said road-way and the land so appropriated as aforesaid, have been sold to the defendant; that said defendant is now, and for more than two years last past has been in the possession and occupancy of said land so as aforesaid appropriated, and using and occupying the same as and for the purposes of a road-way for said railroad, and that said defendant acquired its interest in the same with a full knowledge of all the matters herein alleg'ed.
    “Plaintiff further says, that neither the said Cincinnati, Wilmington & Zanesville Railroad Company, nor this defendant, nor any person for them at any time, has built 01 erected, or caused to be built or erected, the fences on either side of said road-way so as aforesaid appropriated, nor either of the cross-ways or cattle pits, though often requested so to do.
    “ Plaintiff further says, that said Solomon Sturges sold and conveyed in fee simple his land aforesaid, from which said road-way was appropriated as aforesaid, to Howard Copeland, and said Howard Copeland sold and conveyed the same in fee simple to this plaintiff, in the year 1863, and this plaintiff thence hitherto has been in possession and occupancy of the same, except the road-way so as aforesaid appropriated.
    “ Plaintiff further says, that neither said Sturges nor said Copeland, nor any person claiming by, through or under them, or either of them, ever prosecuted any suit in this behalf, or ever received any compensation in such behalf.
    “Plaintiff further says, that his said land is used and occupied by him for farming purposes,, and upon each side of said road-way, and along the whole length thereof extending through said land, he is using the same for pasture and for cultivation, and his stock is endangered by running and straying on said road-way.
    “ Wherefore plaintiff says he is damaged in the premises in the sum of two thousand dollars, for which sum he asks judgment.”
    
      Lucius P. Marsh for plaintiff in error :
    1. As between Sturges and the C. W. & Z. Railroad Co., Sturges might enforce the agreement, or recover damages for a non-compliance therewith.
    It will be admitted that the agreement, as to its nature, was one which the parties might make; that there is no legal impediment thereto ; that if the company entered into a contract, properly executed, containing the stipulations in the agreement set out in the record, and failed to comply therewith, it would be liable in damages to the party aggrieved ; and so it only remains to enquire whether the incorporating in the record in that case of such agreement, is in legal effect the execution of a contract in such behalf.
    I need not discuss the legal effect and significance of the record of a judgment. It imports verity; it may not be impeached collaterally ; the parties thereto are estopped from denying what appears therein ; they are concluded by its terms as to all matters which are adjusted therein and thereby.
    A statement therein that parties consented to certain matters ; that certain rights were waived ; a statement that, by consent, certain matters within the purview of the pleadings were withdrawn ; or that certain matters not appearing in the pleadings were adjudicated, are familiar examples of what is frequently entered of record, and which are conclusive upon the parties. The agreement entered of this record was of a matter legitimately before the court, and proper to be considered in the case, and constituted one of the elements of the case, and, I conclude, was conclusive and binding upon the parties thereto.
    “An admission of record, or made for the purpose of superseding proof, * * * is of such binding efficacy, that, under no circumstances, is the party permitted to disprove it.” Douglas v. Scott, 5 Ohio, 194.
    It is said, however, that the record discloses the fact that the jury assessed the damages, &c., without reference to, and without being controlled by, this agreement; that the damages so assessed include the cost of fencing, &c.
    
    I sujrpose the court will construe this record as other-writings are construed : that it will look to the whole record and construe it together. In one part of the record it is affirmatively alleged that Sturges withdrew from the consideration of the jury all claim for compensation on account, of fencing, &c., made necessary by the appropriation; in. another part of the record it is shown that the jury assessed the damages and compensation at the sum of $117, without saying whether this sum is inclusive or exclusive of compensation on account of fencing, &c.
    Such construction will be put upon this record as will not make it stultify itself; such a one as will make it consistent in all its parts ; such a one as harmonizes the whole, and not such a one as destroys a part; and, therefore, the court will say the matter was withdrawn from the jury, and the compensation and damages found by the jury are exclusive of the matters withdrawn, and the railroad company hag had the benefit of its part of the agreement. The fair and reasonable inference from this record of what was done in the case is, that what was done after the agreement was made and entered of record, was in pursuance of what had theretofore been agreed upon.
    2. The legal liability under the agreement runs with the land, so that the purchaser of the rights of the railroad company takes cum onere, and the vendee of Sturges is subrogated to his rights.
    The agreement entered of record was to “ Solomon Sturges, his heirs and assigns ; ” it was for the betterment and improvement of the land, and to keep up and continue such improvement of the land thereafter, whenever it should become necessary, and so long as the land was used for railroad purposes. ,
    This agreement was a covenant, which is “an agreement “entered into between persons, whereby they stand bound “ each to the other to perform the conditions contracted and “ intended for.” Bacon’s Abridgement, Tit. Covenant.
    Such covenant or agreement created a privity of estate between the parties contracting, and was annexed and became an incident to the land, to acquire which was to acquire the incident. Masury v. Southworth, 9 Ohio St. 349, et seq.; Rawle on Covenants, (3d ed.) p. 334, et seq.
    
    I call attention of the court to the provisions of the statute requiring railroad companies to fence the line of their a-oads. S. & S. 118.
    
      I claim, therefore, there is ei’ror in the record in sustaining a demurrer to the petition.
    
      Hunter & Daugherty for defendant in error :
    1. In the absence of anything to the contrary, the legal effect of the verdict and judgment recited in the petition is, and was, to acquit the railroad company from all claims in behalf of the land owner for damage or injury arising from the appropriation of the lands, and incidentally from the construction and use of the road, “in a legal and proper manner.” And such, we claim, to be the legal effect of that verdict and judgment. S. & C. 311, sec. 2 ; Ib. 277, sec. 10; Ib. 331; C. & P. R. R. Co. v. Ball, 5 Ohio St. 575 ; Redf. on Railways, p. 152.
    The C., W. & Z. R. R. Co. has, as shown by the record, paid to Sturges the damages assessed by the jury for the same injury or inconvenience for which the plaintiff now seeks to recover damages against the present defendant. We say, the present defendant holds the privileges for its road, discharged of liability; and that the plaintiff holds the adjacent land subject to the easement and rights of the defendant.
    2. But it is claimed by the plaintiff, as the effect of the record, that the C., W. & Z. R. R. Co. agreed to construct and maintain, on either side of its right of way through the lands of Sturges, fences of a specified description, and certain cross-ways over its road and right of way, and certain cattle-pits, and to maintain and keep the same in repair for the use and convenience of Sturges, and his heirs and assigns, and as a means of enclosing his lands on either side of said right of way continually and forever, in addition to the damages assessed by the jury in consideration of the right of way; and on that basis alleging that the C., W. & Z. R. R. Co., and the defendant as the present owner of said road, having failed to erect, maintain and keep up the fencing, pass-ways and cattle-pits, as stipulated, the plaintiff is in law entitled to recover damages, he being the purchaser of said lands, and the present owner thereof from Sturges vendee thereof, sustained by said alleged breach of said agreement of said C., W. & Z. R. R. Company.
    Our first proposition is, that the record, or “ extract ” of the record, annexed to the petition, does not purport any such agreement, nor is it the legal effect of the record that the verdict and judgment were in addition to the alleged agreement of the company to make and maintain the fenc ing, passways, etc.
    The case is not one of covenant running with land. Bu if it were, we deny that the plaintiff is vested with the right to recover damages for the breaches alleged, — certainly not for any breach that occurred prior to the inception of his own title to the lands.
    Whatever may be the character of the covenant or agreement alleged, as adhering to the land, it is very clear that the right of action complained of had accrued before the plaintiff became the owner of the land, and had accrued to Sturges, or to Copeland, and did not devolve upon, or vest in him, by operation of law, by virtue of the sale and conveyance of the land to him by Copeland.
    And not only so, but for ought that appears, the breach was complete by the C., W. & Z. R. R. Co., before the sale of the road to the defendant.
    The question is, whether a right of action had not accrued to Sturges or Copeland, upon the theory of the nature of the covenant claimed by the plaintiff, as running with the land, before the purchase of the road by the defendant, or before the purchase of the land by the plaintiff, for the same identical breach for which the plaintiff prays judgment ? And this being manifestly the case, the further question is, whether the right of action is, by operation of law, transferred from-the party to whom it accrued, to the plaintiff, under the facts set forth ? And a still further question is, was that right of action, which, at its inception, rested against the C., W.& Z. R. R. Co., shifted from it, and made to rest against the defendant ?
    See. Spencer's Case, 1 Smith’s Lead. Cas. 163, 165, 172 174, top paging.
    
      3. The case is not such as, upon general principles of law, vests in the plaintiff a right to sustain an action at law, .against the defendant for damages. There is no covenant— no deed for the conveyance of lands. The stipulation recited in the record to erect fences and cross-ways, admitting it to be obligatory upon the C., W. & Z. R. R. Co., is, in legal effect, a parol agreement merely — not a covenant. It is no part of the judicial proceeding, and has no operative effect as matter of record. Viewed in its most favorable light, it is not a covenant, express or implied. Doe v. Phillips, 11 Q. B. 131; Beckford v. Parsons, 5 C. B. 920; Murray v. Payne, 8 Barb. 612 ; Spencer's Case, 1 Smith’s Lead. Cas. 160, 162.
    4. The alleged contract is void under- the 5th section of the statute of frauds, no note or memorandum thereof in writing signed by the defendant who is “ sought to be •charged therewith,” or by any one authorized by it, or by the said C., W. &.Z. R. R. Co., appearing.
   Welch, C. J.

The questions made and argued in the case are : 1. Were the original parties bound by the agreement recited in the record ? 2. Is the agreement of a nature to run with the laud? 3. Was it broken by the C., W. & .Z. R. R. Co. so as to become a mere right of action against that company, and cease to pass with the land.

Were the original parties bound by the agreement? We think they were. This was a proceeding under the statute, and the company had, as the statute requires, filed its “statement” therein, describing the “land and rights” of the defendant which it wished to condemn. That “ statement ” was surely open to amendment or modification by mutual consent, at any time during the trial. The agreement recited in the record is substantially such an amendment or modification. Whereas, by the original1 ‘ statement,” the company sought to condemn the land absolutely; by the modification they only sought to condemn the land, subject to the obligation to erect the fences and crossings. The jury were made aware of this agreement, and acted upon and in view of it, as we must presume, for the record says that the defendant in the proceeding withdrew all claim for damage on account of these fences and crossings “ from the jury ”. The agreement, therefore, was a vital part of the proceediug, and forms a legitimate part of the record. The probate court is a court of record, and it follows, that this agreement has all the force and effect of a contract of record. It is suggested, rather than seriously insisted on, that the agreement is within the statute of frauds,, not having been signed by the parties, or their agents thereunto lawfully authorized. No case can be found where a contract of record has been held to be within the statute of frauds. The object of that statute is to substitute a higher for a lower order of evidence. But a record is the very highest order of evidence. It imports absolute verity, and the parties are estopped to deny its truth. Record evidence is surely not parol evidence. There is no parol evidence of this agreement. The only evidence of its existence is the highest order of written evidence. It is a record made by the proper officer of the-law, who for that purpose is at least as appropriately to be regarded as the agent of the parties, as would be an auctioneer, a broker, a partner, a member of a corporation, or a. sheriff making his return, in all of which cases the party is.held bound by the memorandum. If a record made by an. authorized public officer is not to be regarded as authorized by the parties thereto, then it is not true that a judgment, or recognizance is a contract of record. That they are contracts, and contracts of the highest dignity and solemnity, is well settled. But were the law otherwise, in this particular case there is enough to bind the company, in the fact that it afterward ratified the agency of the officer, by taking a judgment upon the verdict, paying the money into court, and taking possession of the property so condemned. The agreement is an element in the title under which the company claims. It cannot show its title without showing the contract at the same time.

Does the contract run with the land ? Undoubtedly it does. It was an agreement to erect structures upon the land appropriated, and to keep them up so long as that was en joyed. It was in the nature of a charge upon that land, subjecting it to a servitude in favor of the estate from which it was to be taken. It went to lessen the value of the one and enhance the value of the other. The nature of the agreement, its qualification of the estate granted, its connection with the proceeding by which the title was acquired,, and the fact that the agreement was to be of perpetual obligation, utterly forbid the idea that it was intended to be a mere personal contract.

It is claimed, however, that the contract was broken by the company before its assignment of the road, and therefore never attached to the land in the hands of its assignee, the present defendant; Such would be the law of the case had the breach by the original company been complete and final. But this is not the fact. The contract is of continuing obligation, and the breach was necessarily only temporary and partial. The contract was, not only to put up the fences and crossings, but als.o to keep them up. On failure of the original company to put them up in a reasonable time, a right of action accrued against it in favor of the owner of the farm. In that action, however, he could only recover such damages as had then actually accrued to the use and enjoyment of the farm ; and the liability for these damages did not pass to the assignee of the company. But the obligation to keep up the fence still remained in force, and that obligation did pass to the assignee. For it must be observed, that so long as these structures remain unbuilt, the obligation to keep them up and in repair is tantamount to the obligation to build them. It is easy to be seen, therefore, that no recovery for full and final damages, in the nature of compensation, can properly be had. In actions where that description of damages is allowed, thfere will be found to exist at least one element which is wholly wanting here, namely, the necessity of allowing that form of compensation, in order to prevent a perpetuity of suits for an act or omission of the defendant which is lawful in itself, or which it .is not in his power to remedy. Such is not the character of the present case. There is no danger of the defendant being harassed with perpetual suits. The defendant has only to put up the structures agreeably to contract, and there will be an end of suits. The true rule of damages, in a case like the present, 'is the amount of actual loss or injury occasioned to the use and enjoyment of the farm for want of the structures during the time the railroad was owned by the defendant. For such damages against the defendant it seems to us the petition makes a good case.

Judgment reversed, demurrer overruled, and cause remanded.

White, Day, McIlvaine and West, JJ., concurred.  