
    BUFFALO CITY MILLS v. GEORGE H. TOADVINE LUMBER COMPANY.
    (Filed 17 February, 1909.)
    Railroads — Right of Way — Covenant—Fee. ,
    A covenant to grant a right of way does not entitle tbe cove-nantee to demand a conveyance of tbe land. There is nothing in the contract in this ease showing any intention to convey the land over which the right of way was located.
    AotioN beard before Guión, J., upon the pleadings and admissions, at November Term, 1908, of Pasquotaníl
    Tbe defendant corporation^ on 30 December, 1902, conveyed to one Andrew Brown a parcel of land, described by metes and bounds, in Elizabeth City, N. C. Following tbe description of tbe property tbe deed contains tbe following language: “Tbe said party of tbe first part also leases to tbe said party of tbe second part tbe right of way, as at present located, through tbe said Toadvine Lumber Company’s land for a siding to tbe line of tbe Norfolk and Southern Railway for tbe period of 'five years from 1 January, 1903, with tbe right or option to tbe said Andrew Brown, at tbe expiration of tbe said lease of five years of said right of way, to purchase and permanently retain tbe same in fee, as at present located, upon the payment to tbe said Toadvine Lumber Company of $500 on or before 31 December, 1907, and upon tbe payment of tbe said $500, as aforesaid, tbe said Toadvine Lumber Company to make a good and perfect title to tbe said Andrew Brown for tbe said right of way as now located. It is further agreed and bargained between tbe said parties that should tbe said Andrew Brown decline to purchase tbe said right of way, as aforesaid, then tbe said Toadvine company shall permit and allow tbe said Andrew Brown and convey to him a permanent right of way on their property along Pine Street towards tbe Norfolk and Southern Railway Company, west, so far as tbe said Toadvine Lumber Company’s property extends towards or up to tbe said Norfolk and Southern Railway Company, reserving to itself tbe right of way to lay water pipes and maintain tbe same forever along tbe line of Second Street to and from Knobb’s Creek from tbe lands now occupied by the said Toadvine Lumber Company lying southwest of the lands sold to Andrew Brown, as aforesaid.” Brown conveyed the land and assigned the lease, together with the options, to the plaintiff, Buffalo City Mills.
    At the expiration of the lease, plaintiff, interpreting the contract as a covenant to convey the land over which the right of way extended, tendered defendant the sum of $500 and demanded a conveyance thereof. Defendant stated that it was ready, willing and able to convey the right of way, but refused to convey the land as demanded. "Whereupon this suit was instituted to compel the specific performance of the contract as interpreted by plaintiff. His Honor, upon the pleadings and exhibits, adjudged that, upon the payment of $500 by plaintiff, defendant “convey in fee simple to the plaintiff a right of way over the strip of land described- in the deed of defendant to Andrew Brown.” He also adjudged that plaintiff was not entitled to demand a conveyance of the land. Plaintiff excepted and appealed.
    
      W. A. Worth and N. T. M. Melliss for plaintiff.
    
      Aydlett & Ehringhaus for defendant.
   Connor, J.,

after stating the case: The sole question raised by plaintiff’s contention is whether the contract to convey an easement in fee simple over the land is to be construed as a contract to convey the land itself. Conceding that there is no rule of construction leading to this conclusion, counsel contend that ah examination of the entire instrument discloses that such was the intention of the parties. He calls attention to the last clause, providing that in the event that Brown shall not purchase the right of way described in the former clause the defendant will convey a right of way on their property along Pine 'Street, etc., reserving to itself the right to lay water pipes and maintain the same, etc.. From this he draws the conclusion that if by paying $500 for the right of way, as described in the first clause, he gets nothing more than the easement, he is put in the attitude of paying for something which by the second clause he is entitled to demand without paying anything. This he says is an unreasonable construction to put upon the language of the entire deed. It is evident that the right secured to Brown in the second clause of the deed is not coextensive with that which he acquired by paying the sum of $500, as described in the first clause. There is no language in the deed explaining the extent of the difference, nor is it necessary for us to conjecture what it may be. It is manifest that Brown did'not contract to pay $500 for an easement which in the same contract is secured to him for nothing. In any aspect of the case, we find no authority for construing the contract to convey an easement into one to convey the land, and this is the result to which the plaintiff’s contention arrives. We concur with his Honor, and the judgment must be

Affirmed.  