
    Hickey v. Railway Company.
    
      Deed Poli — Undertaking by First Grantee, Obligatory upon Subsequent Owner — Liability of First Grantee.
    
    Where a railway company makes a deed poll of land in fee, along which its right of way is located, “ subject to the condition that the said grantee, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the railway as now located and built, ® * * which condition and obligation shall be perpetually binding on the owners of the land.” Field:
    
    NThat the grantee, by accepting the deed, will be deemed to have ^entered into.an express uiidertaking to perform the condition contained in the deed, and such undertaking will run with the land, and become obligatory upon a subsequent owner by purchase from the grantee of the company.
    2. After the grantee of the company has ceased to be the owner of the land, by conveying the same in fee to another, the company will not have a right of action against its grantee, for non-performance of the condition to make and maintain fences between the right of way and the land sold.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    The Lake Shore and Michigan Southern Railway Company, the defendant in error, commenced the original action against James Hickey, the plaintiff in error, in the court of common pleas of Cuyahoga county. The original petition filed by the company reads as follows:
    “The plaintiff says it is a corporation duly or- . ganized under the laws of Ohio, and, as such, owns and operates a line of railroad from Cleveland, Ohio, to Toledo, Ohio; that prior to December 30, 1874, it owned in fee-simple three hundred and eighty-two and 20-100 acres of land, situate in the township of Olmstead, Cuyahoga county, Ohio, through and along parts of which is and was located its line of railroad and right of way; that said lands were fully described in a certain deed by it executed and delivered to the defendant, James Hickey, on or about December 30, 1874, and recorded in book 238, pages 445 and 446 of Cuyahoga county records, to which reference is here had; that said defendant went into possession of said lands under said deed, and have ever since been occupied by him or his vendees; that said deed so delivered to and accepted by said defendant contained the following condition and agreement:
    “ ‘This conveyance is made subject to the condition that thesaid James Hickey, his heirs andassigns, shall make and maintain good and sufficient fences on each side of the right of way of the Lake Shore & Michigan Southern Railway as now located and built through said first named lot or tract herein conveyed and on the south line of said right of way, which is the north line of the second lot herein conveyed west of the two acres reserved and conveyed to Michael McCormick, which condition and obligation shall be perpetually binding on the owners of the land. ’
    “The plaintiff says that afterwards, and before October 10, 1884, the defendant 'sold off sundry parcels of said land to sundry individuals or parties, to-wit, to John Beans, Michael Standen, Edward Standen, Theodore Shearing, John Gannon, Andrew Broadwell, Thomas Costello, Michael Beans, George Bash, Martin Standen, Gust Gable and Mrs. Patrick McKenna. Each holding under the defendant a separate parcel of said land; that prior to said October 10, 1884, the fences along the line of its road and in front of the' several parcels of said land sold by said defendant to the parties above named, became and were out of repair; were not good and sufficient, and were not in condition to turn stock and animals as required by law, portions requiring entirely new fences, and other portions repairing only; that plaintiff gave notice to each of said vendees or occupiers under said defendant Hickey, and requested them and each of them to repair and rebuild said fences and put them in the condition required by said contract and the laws of the state; that said occupiers wholly refused and failed to repair and reconstruct said fences; that it waited a reasonable time, to-wit, one month, and the occupiers refusing and failing so to do, the plaintiff caused said fences to be repaired and rebuilt, as follows, and at the following costs, paid ' by the plaintiff:
    Repairing fence on line of lands occupied by T. Costello..... $2 46
    Repairing fence on line of lands occupied by G. Gable......... 1 99
    Repairing fence on line of lands occupied by Mrs. P. Mc-Kenna ....................................................................... 4 49
    Repairing and rebuilding fence on line of lands occupied by George Bash............................ 17 39
    Repairing and rebuilding fence on line of lands occupied by Michael Beans............................................................. 44 77
    Repairing and rebuilding fence on line of land occupied by A. Broad well............................................................... 10 34
    Repairing and rebuilding fence on line of land occupied by J. Gannon...................................’............................... 33 14
    Repairing and rebuilding fence on line of land occupied by Martin Standen........................................................... 32 48
    Repairing fence on line of lands occupied by Michael Standen 1 9§
    Repairing fence on line of lands occupied by Edward Standen 1 81
    Making a total of....................................................$150 82
    “That each of the parcels of land so occupied by said parties and who were notified respectively as aforesaid, were parts of the land so conveyed to said defendant by the plaintiff and containing the contract aforesaid; that said fences so rebuilt and repaired by the plaintiff were upon the line of plaintiff’s right of way, and were and are the identical fences which, by the terms of said contract, the said defendant obligated himself to build and keep in repair; that said work was done by plaintiff prior to March 18, 1885, and was worth the price and value aforesaid, and of all which defendant had notice; that, by reason of the premises, an action has accrued to plaintiff to have and recover of the defendant the cost and expense aforesaid of said fencing.
    “Wherefore plaintiff prays judgment against the defendant for said sum of $150.82, with interest after March 18, 1885.”
    To this petition the defendant demurred, on the ground:
    1. That there was a defect of parties defendant.
    2. That the petition did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained, to which ruling the plaintiff excepted. The plaintiff, not desiring to amend or further plead, it was considered and adjudged, that the defendant go hence without day and recover of the plaintiff his costs, to which judgment the plaintiff excepted.
    On petition in error filed in the circuit court by the plaintiff, the judgment of the court of common pleas was reversed, and the cause remanded for a new trial.
    This proceeding is instituted by James Hickey, the defendant below, to reverse the judgment of the circuit court.
    
      G. M. Barber and A. W. Barber, for plaintiff in error.
    There is no provision in the contract that the plaintiff may rebuild and repair and charge the cost thereof to the defendant. Plaintiff’s cause of action, if it have one under the alleged contract, is for whatever damages it may have suffered by reason of the alleged breach of the contract. Huston v. Cincinnati & Z. R. Co. 21 Ohio St., 235.
    The condition is in the following language: This conveyance is made subject to the condition that said James Hickey, his heirs and assignees shall make and maintain good and sufficient fence on each side of the right of way, etc. Which condition and obligation shall be perpetually binding on the owner of the land.
    The intent and meaning must be ascertained from the whole instrument interpreted and construed by just and proper rules. 4 Kent, Com. 132; Masury v. Southworth, 9 Ohio St. 340; Huston v. Cincinnati & Z. R. Co. supra; Walsh v. Barton, 24 Ohio St. 28; Wilmington & Z. R. Co. v. Bosworth, 2 L. R. A. 199, 46 Ohio St. 81.
    The condition runs with the land and is binding-on the owners of the abutting land perpetually. Worthington v. Hewes, 19 Ohio St. 66; Taylor v. DeBus, 31 Ohio St. 468; Smith v. Harrison, 42 Ohio St. 180.
    The whole intent of the parties was to create an easement in favor of the estate of the railroad company in the land occupied by it for its road and a servitude upon the abutting property. Washb. Easem. 4th ed. p. 681.
    
      Estep, Dickey, Carr & Goff, for defendant in error.
    This covenant in the deed was a personal covenant, binding upon Hickey, and it continues to be so binding-. It is unquestionably also a covenant running with the land upon which the assigns of plaintiff are also liable. Sutliff v. Atwood, 15 Ohio St. 186; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Rogers v. Eagle Fire Co. 9 Wend. 618; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213; Spaulding v. Hallenbeck, 35 N. Y. 206; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Atlantic Dock Co. v. Leavitt, 50 Barb. 135; Pike v. Brown, 7 Cush. 133.
   Dickman, J.

In December, 1874, the Railway Company executed and delivered to James Hickey, the plaintiff in error, a deed, duly recorded thereafter, of three hundred and eighty-two acres of land, situate in Cuyahoga county, Ohio, and the grantee entered into possession of the granted premises. The deed contained the following condition and agreement:

“This conveyance is made subject to the condition that the said James Hickey, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the Lake Shore and Michigan Southern Railway as now located, * * * which condition and obligation shall be perpetually binding on the owners of the land. ’ ’

Subsequently to the conveyance, Hickey sold to different parties sundry parcels of the same land. The fences along the line of the railway, and in front of the several parcels thus sold becoming out of repair, the railway company requested each of the vendees and occupiers of the parcels of land purchased from Hickey, to repair and reconstruct the fences, in accordance with the condition and agreement in the deed from the Railway Company. Upon the vendees and occupiers refusing and failing so to do, the company caused the fences to be repaired and rebuilt, in a manner sufficient to turn stock and animals as required by law, and commenced the original action to recover the cost and expense of such repairing and rebuilding.

The question presented is, whether the cost and expense so incurred should be borne by the plaintiff in error, the first grantee, or by his respective vendees along the lines of whose lands the fences have been repaired or rebuilt.

It was resolved in Spencer’s case, that the law would not annex the covenant to a thing which had no being at the time of the demise, as in the case of a covenant by a lessee to build a wall upon part of the land demised; and if the covenant should be entered into by the lessee for himself, his executors and administrators, without naming his 'assigns, the lessee, his executors or administrators would be bound and not his assignee. But, it was also resolved, that if the lessee had covenanted, for himself and his assigns, to make a new wall upon some part of the thing demised, forasmuch as it was to be done upon the land demised, it would bind the assignee; for although the covenant extended to a thing to be newly made, yet, as it was to be made upon the thing demised, and the assignee was to take the benefit of it, it should fpnd the assignee by express words. Spencer’s case, 5 Rep. 16, 1st and 2nd resolutions; 1 Smith Lead. Cas. 68. In other words, the covenants which are connected with the estate run with the land, and vest in point of benefit and liability in the assignee.

Nor is this principle to be restricted in its application to leases or deeds inter pa/rtes, executed by both lessor and lessee, or grantor and grantee. Where a grantee accepts a deed, and goes into possession of the premises under it, he is bound by the conditions contained in the deed as effectually as if he had signed and sealed the instrument.' Although not executing the instrument, he should be deemed to have entered into an express undertaking to do what the deed says he is to do; and such undertaking or obligation imposed upon and assumed by the grantee, if not technically a covenant running with the land, is, nevertheless, an agreement of the grantee, evidenced by his acceptance of the deed, which might bind him and his personal representatives, and by express words, his heirs and assigns.

In Burbank v. Pillsbury, 48 N. H. 475, it was held that a clause in a deed poll to the effect that the grantee agrees for herself and for her heirs and assigns, that she and they would forever make and maintain a fence all around the granted premises, was of the same effect as an express covenant, signed and sealed by the grantee; that it would run with the land; that it created an incumbrance upon the land; and, by implication, it was recognized that a subsequent grantee would be liable to the original grantor in an action of assumpsit for non performance of the stipulation. A decision substantially similar was rendered in Kellogg v. Robinson, 6 Vt. 276.

And, in The Georgia Southern Railroad v. Reeves, 64 Ga. 492, the grantor, in consideration of $25.00, and of the building of the railroad, conveyed to a company, its successors or assigns forever, in fee-simple, the right-of-way 'through his land, and added in the deed the words: “It is hereby agreed and understood a depot and station is to be located and given to said Reeves, on the land or strip above conveyed, to be permanently located for the benefit of said Reeves and his assigns, and to be used for the general purposes of the Railroad Company. ” It was held, that the grantee, by accepting such deed, entered into a covenant to comply with its terms, and this covenant ran with the land and became obligatory upon any second company which became the purchaser, under proper legal direction, of the rights, privileges, franchises and property of the former. See also, Countryman v. Deck, 13 Abb. (N. Y.) N. Cas. 110.

If the conditions, stipulations, or covenants in a deed poll may thus run with the land, and bind the first grantee and' subsequent purchasers from him, why, it is inquired, should not the plaintiff in error, as well as his grantees, be holden to perform the condition and obligation contained in the deed from the Railway Company? ' If the conveyance had been made subject only to the condition that, “James Hickey, his heirs and assigns” shall make and maintain good and sufficient fences on each side of the right of way of the railway, the Railway Company, we think, might, at its election, pursue either the original grantee or his vendee, or both, for payment. But the conveyance contains the further provision, that such “condition and obligation shall be perpetually binding on the'owners of the land. ” This provision cannot be regarded as meaningless and without design. In the construction of deeds, the object of all rules is to ascertain the intent of the parties. And in construing the words of a grant, of covenant, of qualification, condition, restraint, exception or explanation, every word should be presumed to have been used for some purpose, and should be deemed to have some force and effect, if it can have. Devlin on Deeds, sec. 840; Salesbury v. Andrews, 19 Pick. 250, 252.

In the case before us, the Railway Company conveyed the land in fee, and as part consideration, imposed a condition for making and maintaining fences, which was to be “perpetually binding on the owners of the land. ” The meaning of the condition, we think, was, to place upon 'Hickey an obligation to make and maintain the fences only during the time he was the owner of the land. At his death, his heirs, upon succeeding to the ownership, would be held to make and maintain the fences while their ownership lasted. If he or his heirs or devisees should sell the land, the assignees would likewise be held while they continued to be owners — the obligation thus running with the land. Manifestly, it was not Hickey’s intention to assume an obligation in perpetuara, and after having sold and conveyed the premises in fee, to remain bound for life, and his heirs to be bound after his death, to build and keep up the fences between the right of way and the land sold. And in getting at the intention of the Railway Company, the obvious inference would be, that the company would naturally provide for a recourse to those who might own the land at the time the fences needed repairing or rebuilding, rather than to its grantee and his heirs, who might perhaps’ at the time be dead, or unable to be found. We cannot but conclude that the company intended when the land was conveyed, to trust to the land and its owners, for a performance of the condition contained in the deed, and not to its grantee after he ceased to be the owner. The fact that the company imposed the condition, that the grantee and “his assigns” should make and maintain the fences, and added thereto, that the condition or obligation should be perpetually binding on “the owners of the land,” would indicate an intention to make ownership the test as to who should be bound to perform the condition in the deed.

In Worthington v. Hewes, 19 Ohio St. 66, there was a demise of certain real estate to the lessee and his assigns, for ninety-nine years, renewable forever. The lease provided that the rent was to be fixed by a reappraisal of the premises every fifteen years. The stipulation in the lease as to the mode of appointing appraisers, was held to be a covenant running with the land, and not a collateral covenant. For all substantial purposes, the estate was treated as a leasehold estate in name and in form only. The lessor, in effect, having-parted at' once with his entire estate, the lessee was deemed to have taken in form a chattel, but in fact an estate in fee. The liability of the lessee for rents was regarded as simply a question of intention; and it was held that, after an unconditional assignment by the lessee, he was not liable for future rents, and had no right to interfere in the appointment of appraisers, which was a matter to be adjusted, not by the original parties to the lease, but by their assignees. The decision, though not altogether decisive, is, in a measure, forcibly illustrative of principles involved in the case at bar.

The judgment of the circuit court, in our opinion, should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.  