Worthington, J.,
delivered the opinion of the Court, after making the forgoing statement of facts.
The theory of the plaintiff’s case is, that, the first stipulation in the habendum of the deed of date March 21, 1884, being the one relied on by the plaintiff to sustain the action, created an easement in the land conveyed for the benefit of the land retained by the grantor; or at least that it is a covenant that runs with such land in favor of the plaintiff as assignee of the original grantor.
We cannot agree, however, that a fair interpretation of the language of the stipulation in the deed warrants the inference that it wás the intention of the parties to create or reserve a right in the nature of an easement in the property granted for the especial benefit of the land retained.
The station covenanted to be erected and maintained on the railroad’s right of way, was manifestly intended as a public station for the use of the public generally. There are no words in the deed anywhere to show that it was to be made and maintained for the especial benefit of the grantor, or of the land retained by him.
There was of course incidental benefit to the grantor, and also to his remaining land, but a similar benefit, less only in degree, was also conferred upon other adjoining property.
A private easement implies, as an essential quality thereof, two distinct tenements; namely, the dominant, to which the right belongs, and the servient, upon which the obligation rests.
Wolfe v. Frost,
4 Sand. Ch. 89.
Here the public were to- have the use and benefit of the station and it could not with propriety be said that there was any dominant estate to which such right belonged.
The right created by the stipulation in the deed cannot therefore be deemed an easement appurtenant to the land reserved so as to pass as part thereof to the assignee of the grantor, but rather it should be treated as a covenant by the railroad company to do and perform something on the granted land that while incidentally intended to benefit the grantor, was also manifestly intended for the use and benefit of the community generally.
Assuming for the present,therefore, without deciding, that the original grantor bore such contractual relation to the rail road company as to entitle him, now, were he a party to these proceedings, to maintain an action on the covenant, does the covenant so run with the land retained by the grantor as to enure to the benefit of the plaintiff in this case ?
A covenant in a deed, whether to be performed on or off' the land, must in order to run with the land, touch and concern the land so that the thing required to be done will tend to enhance its value or render it more convenient or beneficial to the owner, and if the covenant extends to something not then
in esse,
the covenant must be to one, “his heirs and assigns” by express words, else the assignee shall take no benefit of it.
Spencer’s Case,
1 Smith’s Leading Oases (9th ed.), page 174;
Whalen’s Case,
108 Md. 11.
In the case at bar the covenant was made with reference to-something not then
in esse,
and there are no words of limitation to the heirs and assigns of the grantor. It is contended, however, that since the Act of 1856, Ch. 154 (Code, Art. 21, sec. 11), as words of inheritance are unnecessary to create a fee, the covenant in this case being in the nature of a recon
veyance of an interest in the lands conveyed, such words are unnecessary here.
In the case of
Ross
v.
McGee,
98 Md. 389, this Court held that the Act in question “was never intended to apply to reservations of privileges and the granting of an easement,” such as was claimed in that case. There the reservation was of the right to use the water from a spring located on the land conveyed, and the Court held that the right did not enure to the benefit of an assignee of the grantor.
Here the. right was not created by way of a reservation, but by way of a covenant, which though it may be said, in a sense, to touch and concern the land retained by the grantor, yet extended to something not in existence at the date of the deed and the words heirs and assigns are not expressed. Under the circumstances we do not think the Act of 1856 does away with the necessity for the use of these words in order to pass the right created by the covenant in question to an assignee of the grantor.
Meither do we think the Act of 1864, Ch. 252 (Code, Art. 21, sec. 70), applicable to this case. Statutes in derogation of the common law are to be strictly construed and the covenant now under consideration appears to be beyond the immediate scope and object of that enactment.
2. But aside from the aforegoing considerations it has been held in a number of well reasoned eases that the covenant on the part of a railroad company to erect and maintain a public station at a certain place on its line, even if originally valid, is fairly complied with by the erection and maintenance of such a station for a period of years, and until the exigencies of business, the convenience of the public and the welfare of the railroad demand its removal.
Texas
v.
Scott,
37 L. R. A. 94; 77 Fed. 726;
Mobile
v.
People,
132 Ill. 559;
Camp’s Case,
15 L. R. A. (N. S.) 594; 130 Geo. 1;
Jeffersonville
v.
Barbour,
89 Ind. 375.
The reason for the rule being that as the number and location of a railroad’s depots and public stations must depend upon the conditions of population and amount of business at
the different places along its line, and as changes take place in these conditions from time to time, the determination of such questions is appropriately committed to the directors or managers of the railroad company.
This does not mean, of course, that a railroad company may wilfully and arbitrarily refuse to establish or maintain a public station at any certain place on its line, when it has legally obligated itself so to do.
And while the Courts do not usually specifically enforce such contracts, damages are frequently recoverable for their wilful breach.
Chicago and E. I. R. Co.
v.
People,
222 Ill. 403;
Marsh
v.
Fairburg R. Co.,
64 Ill. 414;
Wilson
v.
Winchester R. Co.,
41 C. C. A. 215;
Rochford, etc.,
v.
Beckemeier,
72 Ill. 267;
Elliott on Railroads,
secs. 386 and 387;
People
v.
Board of Ry. Comms.,
158 N. Y. 421.
In some jurisdictions contracts for the location of public stations are held to be absolutely illegal.
Burney
v.
Ludeling,
47 La. Ann. 73;
Florida Cent.
v.
State,
31 Fla. 482 (20 L. R. A. 419);
Greenhood on Public Policy,
sec.
Free access — add to your briefcase to read the full text and ask questions with AI
Worthington, J.,
delivered the opinion of the Court, after making the forgoing statement of facts.
The theory of the plaintiff’s case is, that, the first stipulation in the habendum of the deed of date March 21, 1884, being the one relied on by the plaintiff to sustain the action, created an easement in the land conveyed for the benefit of the land retained by the grantor; or at least that it is a covenant that runs with such land in favor of the plaintiff as assignee of the original grantor.
We cannot agree, however, that a fair interpretation of the language of the stipulation in the deed warrants the inference that it wás the intention of the parties to create or reserve a right in the nature of an easement in the property granted for the especial benefit of the land retained.
The station covenanted to be erected and maintained on the railroad’s right of way, was manifestly intended as a public station for the use of the public generally. There are no words in the deed anywhere to show that it was to be made and maintained for the especial benefit of the grantor, or of the land retained by him.
There was of course incidental benefit to the grantor, and also to his remaining land, but a similar benefit, less only in degree, was also conferred upon other adjoining property.
A private easement implies, as an essential quality thereof, two distinct tenements; namely, the dominant, to which the right belongs, and the servient, upon which the obligation rests.
Wolfe v. Frost,
4 Sand. Ch. 89.
Here the public were to- have the use and benefit of the station and it could not with propriety be said that there was any dominant estate to which such right belonged.
The right created by the stipulation in the deed cannot therefore be deemed an easement appurtenant to the land reserved so as to pass as part thereof to the assignee of the grantor, but rather it should be treated as a covenant by the railroad company to do and perform something on the granted land that while incidentally intended to benefit the grantor, was also manifestly intended for the use and benefit of the community generally.
Assuming for the present,therefore, without deciding, that the original grantor bore such contractual relation to the rail road company as to entitle him, now, were he a party to these proceedings, to maintain an action on the covenant, does the covenant so run with the land retained by the grantor as to enure to the benefit of the plaintiff in this case ?
A covenant in a deed, whether to be performed on or off' the land, must in order to run with the land, touch and concern the land so that the thing required to be done will tend to enhance its value or render it more convenient or beneficial to the owner, and if the covenant extends to something not then
in esse,
the covenant must be to one, “his heirs and assigns” by express words, else the assignee shall take no benefit of it.
Spencer’s Case,
1 Smith’s Leading Oases (9th ed.), page 174;
Whalen’s Case,
108 Md. 11.
In the case at bar the covenant was made with reference to-something not then
in esse,
and there are no words of limitation to the heirs and assigns of the grantor. It is contended, however, that since the Act of 1856, Ch. 154 (Code, Art. 21, sec. 11), as words of inheritance are unnecessary to create a fee, the covenant in this case being in the nature of a recon
veyance of an interest in the lands conveyed, such words are unnecessary here.
In the case of
Ross
v.
McGee,
98 Md. 389, this Court held that the Act in question “was never intended to apply to reservations of privileges and the granting of an easement,” such as was claimed in that case. There the reservation was of the right to use the water from a spring located on the land conveyed, and the Court held that the right did not enure to the benefit of an assignee of the grantor.
Here the. right was not created by way of a reservation, but by way of a covenant, which though it may be said, in a sense, to touch and concern the land retained by the grantor, yet extended to something not in existence at the date of the deed and the words heirs and assigns are not expressed. Under the circumstances we do not think the Act of 1856 does away with the necessity for the use of these words in order to pass the right created by the covenant in question to an assignee of the grantor.
Meither do we think the Act of 1864, Ch. 252 (Code, Art. 21, sec. 70), applicable to this case. Statutes in derogation of the common law are to be strictly construed and the covenant now under consideration appears to be beyond the immediate scope and object of that enactment.
2. But aside from the aforegoing considerations it has been held in a number of well reasoned eases that the covenant on the part of a railroad company to erect and maintain a public station at a certain place on its line, even if originally valid, is fairly complied with by the erection and maintenance of such a station for a period of years, and until the exigencies of business, the convenience of the public and the welfare of the railroad demand its removal.
Texas
v.
Scott,
37 L. R. A. 94; 77 Fed. 726;
Mobile
v.
People,
132 Ill. 559;
Camp’s Case,
15 L. R. A. (N. S.) 594; 130 Geo. 1;
Jeffersonville
v.
Barbour,
89 Ind. 375.
The reason for the rule being that as the number and location of a railroad’s depots and public stations must depend upon the conditions of population and amount of business at
the different places along its line, and as changes take place in these conditions from time to time, the determination of such questions is appropriately committed to the directors or managers of the railroad company.
This does not mean, of course, that a railroad company may wilfully and arbitrarily refuse to establish or maintain a public station at any certain place on its line, when it has legally obligated itself so to do.
And while the Courts do not usually specifically enforce such contracts, damages are frequently recoverable for their wilful breach.
Chicago and E. I. R. Co.
v.
People,
222 Ill. 403;
Marsh
v.
Fairburg R. Co.,
64 Ill. 414;
Wilson
v.
Winchester R. Co.,
41 C. C. A. 215;
Rochford, etc.,
v.
Beckemeier,
72 Ill. 267;
Elliott on Railroads,
secs. 386 and 387;
People
v.
Board of Ry. Comms.,
158 N. Y. 421.
In some jurisdictions contracts for the location of public stations are held to be absolutely illegal.
Burney
v.
Ludeling,
47 La. Ann. 73;
Florida Cent.
v.
State,
31 Fla. 482 (20 L. R. A. 419);
Greenhood on Public Policy,
sec. 149, pages 316-321; while in others, as we have just seen, the-contract is held to have been performed after a reasonable time, when changed conditions warrant a remóval or relocation.
What we have said renders it unnecessary to consider the several prayers of the respective parties seriatim. The plaintiff’s first prayer we consider objectionable, because it fails to correctly instruct the jury as to the rights of the plaintiff as assignee of James E. Whiteford, but rather submits to the jury to find what those rights are. The plaintiff’s rights depend upon the proper construction of the deed of date March 21, 1884, and of the' subsequent deeds by virtue of which she obtained title to the property.
The proper interpretation of any written instrument is a question of law for the Court, and it was error to have submitted such question to the jury.
Whiteford
v.
Munroe,
17 Md. 135.
As the evidence in the case disclosed the fact that the resident agent at Cambria had been kept there a period of seven
teen years, and for several years of that period at a loss to the company, and also as it appears that the warehouse, for two years or more before the removal of the agent, had heen used merely for storage purposes, we think the railroad was justified in no longer keeping an agent at that place, and that the defendant’s ninth prayer should have been granted.
We think this case is clearly distinguishable from that of
R. R. Co.
v.
Compton,.
2 Gill, 20.
In that case the benefits to the landowner were deemed by the jury of condemnation, equivalent to the value of the land, and only one cent damages were awarded.
Subsequently the railroad was removed to a distance, that no longer rendered it a benefit to Compton’s land, and it-was held that inasmuch as the land had been ruined for agricul-. tural purposes by deep cuts and embankments, that the owners could recover its value from the railroad company.
This is not a suit to recover the value of the lanil, but, as presented by this appeal, for alleged incidental damages, based upon a hypothetical loss of rents, and we do not think it can be maintained. '
As we do not think the plaintiff entitled to recover, we mil reverse the judgment without awarding a new trial.
Judgment reversed with costs..