
    The New York, Auburn and Lansing Railroad Company, Appellant, v. David M. Dunning and Others, Respondents.
    Fourth Department,
    May 4, 1910.
    Eailroad — contract to buy land — eminent domain.
    Where a railroad purchased a strip of land for its right of way, and at the same time made a contract with the grantor for a valuable consideration that if within five years it should desire additional land to increase the width of the right of way, it would buy the same in continuous strips not less than 1,000 feet in length and contiguous thereto throughout their length at a certain price per acre, the railroad company, if it desires to widen its right of way, must purchase strips of uniform width throughout their whole length.
    A petition by the railroad to condemn strips of land only about 600 feet long and not uniform in width will be dismissed.
    Appeal by the plaintiff, The New York, Auburn and. Lansing Eailroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county Cayuga on the 7th day of October, 1909, upon the report of a referee dismissing the plaintiff’s petition herein.
    
      E. O. Aiken., for the appellant.
    
      John Van Sickle, for the respondents.
   Williams, J.:

The judgment should be affirmed, with costs. '

This proceeding was commenced by petition for the condemna-' tion of lands for railroad purposes; the- defendants- answered the petition, and thereupon the reference was ordered. The only question here relates to a contract formerly entered into between the parties, a brief statement with reference to which is as follows: In October,' 1905, the petitioner desired to obtain a strip of land about 99 feet wide and 2,500 feet feet long, diagonally through Dunning’s farm for its right of way, and commenced, condemnation, proceedings to acquire the same. The proceedings were subsequently discontinued, and Dunning deeded to petitioner a strip of land 49£ feet wide, of the length of 2,500 feet, at a price amounting to about $1,700 per acre. The deed contained various conditions as to fencing, and street' and farm crossings, etc. Contemporaneously with the giving of the deed as a. part of the same transaction and as part consideration for the deed, the- contract here in question was entered ■ into by the parties, wherein it was agreed that if the railroad company should at any time within- five years desire or require more land for railroad purposes, adjacent to the land thus conveyed, on either side, to increase the width of its right of way, it should acquire the same in continuous strips of not less than 1,000 feet in length and contiguous thereto in their entire length, and Dunning would convey,- and the railroad company would pay for, the same at the fate of $1,700 per acre. This contract was in force and binding upon both- parties when the present proceedings were begun. Dunning was willing to deed to the petitioner any lands taken under the terms of that contract. lie claimed, however, that whatever land was taken should be in strips 1,000 feet long, and of uniform width the whole distance. The land sought to be condemned was in two strips, one on either side of and contiguous to its 49-foot right of. way, the one about 600 feet long and the other about 625 feet long, the one strip 28 feet wide at one end, and converging to a point at the other end, the other strip 35 feet wide at one end and continuing that width for. about 250 feet, and then converging to a point at the other end. Before commencing these proceedings the petitioner requested Dunning to give it a deed of two strips of land, one on either side of .and contiguous to its 49-foot right of way, substantially the same width as those described except that the convergence was not to a point but until the width of each was one foot, and then the continuance of the strips one foot wide until their lengths were respectively 1,000 feet. Dunning refused to give such a deed, and the parties were unable to agree upon a sale of the land sought to be condemned or that described in the deed by reason of their disagreement as to the construction of the contract in question.

The referee decided that Dunning -was right in his construction, the strips must be 1,000 feet long and of uniform width the whole length. I think the referee properly construed the contract. It did not provide in express language that the strips to be taken should be of uniform width throughout, but such was evidently the intention of the parties. Any other construction would lead to unreasonable conclusions. . It would enable the railroad company to take zig zag strips varying in width from a few inches to hundreds of feet or to take a block hundreds of feet wide at one end and then annex to this a strip of a few inches wdde for the remainder of the 1,000 feet in length. There is no reason why the railroad company should not be held to its contract, and inasmuch as Dunning is willing to comply with it, and give a deed upon being paid for the land taken according to the terms agreed upon, there is no occasion for these proceedings to condemn, and the railroad company should not be permitted to maintain them. It is true the price agreed to be paid, $1,700 per acre, is in excess of the real value of the property, but the railroad company agreed to pay it, and there is no reason for relieving it from that obligation. It is ■said the railroad company does not need strips on each side of the right of way of the width, the one of 28 and the other of 35 feet or thereabouts for the whole 1,000 feet,1 which would make their width 112^- feet the whole distance. Originally the railroad attempted to take 99 feet wide for the whole 2,500 feet through Dunning’s farm. It did not then object that it did not need the land.

It seems to me that the judgment should be affirmed.

All concurred.

Judgment, affirmed, with costs.  