Baktol, 0. J.,
delivered the opinion of the Court.
In 1819, the appellee was the owner of a lot of ground in the City of Cumberland, occupied by him as a coal dealer, upon which there was erected a trestle connected by a switch with the Cumberland and Pennsylvania Railroad, by which he received supplies of coal for his customers. The appellant reqiiiring to have a right of way across the lot for its railroad, caused proceedings for condemnation to be instituted, under which a part of the lot was condemned for the use of the appellant. In constructing the road of the appellant, it was necessary to remove the trestle of the appellee. The inquisition returned by the jury awarded to the appellee the sum of six hundred dollars as damages.
The inquisition also contained the following provisions r u And we further find, as a part of this inquisition, and require of the Pennsylvania Railroad Company, that it shall forthwith construct for Caspar Reichert, his heirs and assigns in perpetuity, a trestle with four dumps, or [270]*270bins along the line laid down on the plat herewith returned marked “A,” of the width of sixteen feet as designated on the plat, and said trestle shall be connected both with the Pennsylvania Railroad and the Cumberland and Pennsylvania Railroad, in such manner that coal can be economically and conveniently brought from both roads.”
“And said Pennsylvania Company shall not charge more than one cent per ton for hauling coal from the point of connection between the two railroads to the switch or coal trestle, nor more than it charges other coal dealers in that vicinity, and in case of non-compliance with, or breach of, these conditions, we award fifteen hundred dollars damages to said Caspar Reichert for such breach or npn-compliance therewith.”
It appears by the plat that the trestle which the appellant was required to construct for the appellee, was located in part upon the land condemned for the appellant’s use, and in part upon the land óf the appellee not so condemned, that is to say, nine feet of its width upon the former and seven feet upon the latter.
• When the inquisition was- returned to the Circuit Court, it was ratified and confirmed by the consent and agreement of the parties. The sum of $600 in money awarded by the jury was paid, but the appellant having faded, as ■alleged, to perform the other conditions prescribed in.the inquisition, the present suit was instituted by the appellee, and resulted in a verdict and judgment in his favor for $1200.
The appeal presents for review the rulings of the Circuit Court upon the pleadings, upon the prayers offered by the' parties respectively, and also upon certain questions of evidence raised by the fast, second and third Mils of exceptions.
The sufficiency of the declaration is first to be considered.
[271]*271In support of the demurrer thereto, it has been contended, First, that it is uncertain and insufficient, because it does not define the land on which the trestle was to be built, nor state who was the owner of it, nor what land or lines were on “plat A,” referred to in the inquisition.
Second. That the trestle being required to be constructed in part on the land of the appellee, not within the lines of condemnation, it was necessary for the appellee to aver that he offered himself ready and willing to permit the appellant to enter upon his land and perform the work required.
Third. That it was not competent for the jury, or within its power and jurisdiction, to require the appellant to construct the trestle, as indicated on the plat, or to perform the other conditions prescribed.
We are of opinion that none of these objections were tenable. The declaration sets out at length the proceedings for condemnation, of which “plat A” forms a part, and in alleging the breach by failing to construct the trestle required, describes it “as along the line laid down on the plat returned with the said inquisition marked ‘A’ of the width of sixteen feet as designated on said plat.”
The plat referred to shows with certainty the lines of the land condemned, and with equal certainty designates the location of the required trestle, showing that it was to be constructed partly upon the land condemned for the use of the appellant, and partly upon the land of the appellee. In this respect the declaration contained the requisite precision and certainty; it was not necessary to give any other or more particular description than was furnished by the plat referred to.
Second. It is averred in the narr. that “the plaintiff hath hitherto well and truly performed, fulfilled and kept all things on his part and behalf to be performed, fulfilled [272]*272and kept, according to the tenor and effect, true intent and meaning of said inquisition.” This general averment of performance by the plaintiff is sufficient; it was not necessary to aver specifically that he offered himself ready and willing to permit the defendant to enter upon his. land for the purpose of performing the work.
By the terms of the inquisition, the appellant was bound to construct the trestle as located on the plat, a part thereof being located on the land of the appellee, his consenting to the terms of the inquisition imposed an obligation upon him to permit the other party to enter upon his land for that purpose, a general averment of performance of everything on his })art to be done, implies that he consented to such entry on his land. If on the contrary he had withheld his assent, or prevented the appellant from performing the contract on its part, that was matter which the appellant might have pleaded in defence.
Third. While it is well settled that it is the duty of the jury, in condemnation proceedings, to award compensation to the land owner in money, and that they have no power to impose terms and conditions upon the condemning cornpany without its consent; it is equally well settled that where such terms and conditions are prescribed in the inquisition, enter into the estimate of damages, and are assented to by the parties, they are binding and constitute a contract between them. We refer to Mills on Eminent Domain, sec. 112, where the authorities are cited. It is correctly said by the author “Compensation is ordinarily to be made in money, yet reservations of' rights to owners are favored, and the condemning party may ratify an award a part of which requires certain improvements to be made for the benefit of the owner. The reservation of rights to the owner is only carrying-out the spirit of the law, that the public improvement shall be made with the least damage to private individ[273]*273uals. These conditions and reservations cannot be fixed against the will of the parties.”
But it has been argued that reservations and conditions of this kind are never binding, except so far as they relate exclusively to the land condemned, as where some improvement is to be made thereon, or some easement therein is reserved to the owner; and as in this case, the structure required to he erected was partly outside of the property condemned, the condition is not binding upon the appellant.
There appears to ns to bo nothing in reason to distinguish the present case from the rule'above stated.
The conditions prescribed derive their force entirely from the consent and agreement of the parties. The work required to he done is on
Free access — add to your briefcase to read the full text and ask questions with AI
Baktol, 0. J.,
delivered the opinion of the Court.
In 1819, the appellee was the owner of a lot of ground in the City of Cumberland, occupied by him as a coal dealer, upon which there was erected a trestle connected by a switch with the Cumberland and Pennsylvania Railroad, by which he received supplies of coal for his customers. The appellant reqiiiring to have a right of way across the lot for its railroad, caused proceedings for condemnation to be instituted, under which a part of the lot was condemned for the use of the appellant. In constructing the road of the appellant, it was necessary to remove the trestle of the appellee. The inquisition returned by the jury awarded to the appellee the sum of six hundred dollars as damages.
The inquisition also contained the following provisions r u And we further find, as a part of this inquisition, and require of the Pennsylvania Railroad Company, that it shall forthwith construct for Caspar Reichert, his heirs and assigns in perpetuity, a trestle with four dumps, or [270]*270bins along the line laid down on the plat herewith returned marked “A,” of the width of sixteen feet as designated on the plat, and said trestle shall be connected both with the Pennsylvania Railroad and the Cumberland and Pennsylvania Railroad, in such manner that coal can be economically and conveniently brought from both roads.”
“And said Pennsylvania Company shall not charge more than one cent per ton for hauling coal from the point of connection between the two railroads to the switch or coal trestle, nor more than it charges other coal dealers in that vicinity, and in case of non-compliance with, or breach of, these conditions, we award fifteen hundred dollars damages to said Caspar Reichert for such breach or npn-compliance therewith.”
It appears by the plat that the trestle which the appellant was required to construct for the appellee, was located in part upon the land condemned for the appellant’s use, and in part upon the land óf the appellee not so condemned, that is to say, nine feet of its width upon the former and seven feet upon the latter.
• When the inquisition was- returned to the Circuit Court, it was ratified and confirmed by the consent and agreement of the parties. The sum of $600 in money awarded by the jury was paid, but the appellant having faded, as ■alleged, to perform the other conditions prescribed in.the inquisition, the present suit was instituted by the appellee, and resulted in a verdict and judgment in his favor for $1200.
The appeal presents for review the rulings of the Circuit Court upon the pleadings, upon the prayers offered by the' parties respectively, and also upon certain questions of evidence raised by the fast, second and third Mils of exceptions.
The sufficiency of the declaration is first to be considered.
[271]*271In support of the demurrer thereto, it has been contended, First, that it is uncertain and insufficient, because it does not define the land on which the trestle was to be built, nor state who was the owner of it, nor what land or lines were on “plat A,” referred to in the inquisition.
Second. That the trestle being required to be constructed in part on the land of the appellee, not within the lines of condemnation, it was necessary for the appellee to aver that he offered himself ready and willing to permit the appellant to enter upon his land and perform the work required.
Third. That it was not competent for the jury, or within its power and jurisdiction, to require the appellant to construct the trestle, as indicated on the plat, or to perform the other conditions prescribed.
We are of opinion that none of these objections were tenable. The declaration sets out at length the proceedings for condemnation, of which “plat A” forms a part, and in alleging the breach by failing to construct the trestle required, describes it “as along the line laid down on the plat returned with the said inquisition marked ‘A’ of the width of sixteen feet as designated on said plat.”
The plat referred to shows with certainty the lines of the land condemned, and with equal certainty designates the location of the required trestle, showing that it was to be constructed partly upon the land condemned for the use of the appellant, and partly upon the land of the appellee. In this respect the declaration contained the requisite precision and certainty; it was not necessary to give any other or more particular description than was furnished by the plat referred to.
Second. It is averred in the narr. that “the plaintiff hath hitherto well and truly performed, fulfilled and kept all things on his part and behalf to be performed, fulfilled [272]*272and kept, according to the tenor and effect, true intent and meaning of said inquisition.” This general averment of performance by the plaintiff is sufficient; it was not necessary to aver specifically that he offered himself ready and willing to permit the defendant to enter upon his. land for the purpose of performing the work.
By the terms of the inquisition, the appellant was bound to construct the trestle as located on the plat, a part thereof being located on the land of the appellee, his consenting to the terms of the inquisition imposed an obligation upon him to permit the other party to enter upon his land for that purpose, a general averment of performance of everything on his })art to be done, implies that he consented to such entry on his land. If on the contrary he had withheld his assent, or prevented the appellant from performing the contract on its part, that was matter which the appellant might have pleaded in defence.
Third. While it is well settled that it is the duty of the jury, in condemnation proceedings, to award compensation to the land owner in money, and that they have no power to impose terms and conditions upon the condemning cornpany without its consent; it is equally well settled that where such terms and conditions are prescribed in the inquisition, enter into the estimate of damages, and are assented to by the parties, they are binding and constitute a contract between them. We refer to Mills on Eminent Domain, sec. 112, where the authorities are cited. It is correctly said by the author “Compensation is ordinarily to be made in money, yet reservations of' rights to owners are favored, and the condemning party may ratify an award a part of which requires certain improvements to be made for the benefit of the owner. The reservation of rights to the owner is only carrying-out the spirit of the law, that the public improvement shall be made with the least damage to private individ[273]*273uals. These conditions and reservations cannot be fixed against the will of the parties.”
But it has been argued that reservations and conditions of this kind are never binding, except so far as they relate exclusively to the land condemned, as where some improvement is to be made thereon, or some easement therein is reserved to the owner; and as in this case, the structure required to he erected was partly outside of the property condemned, the condition is not binding upon the appellant.
There appears to ns to bo nothing in reason to distinguish the present case from the rule'above stated.
The conditions prescribed derive their force entirely from the consent and agreement of the parties. The work required to he done is on their land; so far as it is located outside of the linos of condemnation, it is contiguous thereto, and connected directly with the subject-matter upon which the jury were called to decide, to wit, the compensation to be awarded to the appellee for taking his land, and destroying or removing his structure thereon necessary for the prosecution of his business.
In our opinion the matters alleged in the declaration constitute a legal cause of action, and the demurrer thereto was properly overruled.
The third and fifth pleas were ruled had on demurrer. The former alleges as an excuse for the failure of the appellant to connect the switch or trestle of the plaintiff with the Cumberland and Pennsylvania Railroad, that the said Railroad Company refused to permit the appellant to make such connection, although the appellant has ever since, with reasonable diligence, endeavored to effect such connection. And the fifth plea alleges that “the plaintiff failed to obtain the permission of the Cumberland and Pennsylvania Railroad Company to have its tracks connected with said trestle though the defendant requested him so to do.”
[274]*274According to the true construction of the contract, the duty of obtaining the assent of the Cumberland and Pennsylvania Railroad Company to the proposed connection with its road, did not-rest upon the appellee, hut was assumed by the appellant, and therefore the demurrer to ike fifth plea was well sustained.
The appellant having, by agreeing to the terms of the inquisition, undertaken unconditionally to make the connection for the appellee, with the Cumberland and Pennsylvania Railroad cannot he excused by reason of the refusal of that Company to permit such connection-—“If the thing promised he possible in itself, it is no excuse that the promisor became unable to perform it by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally to fulfil a promise, when he might have guarded himself by the terms of his contract.” Benjamin on Sales, sec. 570, (3rd Am. Ed.;) Kribs vs. Jones, 44 Md., 406. There was no error in sustaining, the demurrer to the third plea.
It follows from what has been said in disposing of the pleadings, that the first prayer of the appellee was properly granted. Some objection has been made to it, because it submitted to the jury to determine whether, under the contract, it was the duty of the plaintiff or of the defendant to obtain the assent of the Cumberland and Pennsylvania Railroad Company, to make the proposed connection with its road, thereby submitting to the jury a question of law; hut as the prayer was not excepted to, especially on that ground in the Court below, the objection cannot he taken in this Court. Buie 4, 29 Md., 2.
As-the obligation to make the connection rested upon the appellant, under the contract, the prayer is not open to objection, because it simply required the jury to find, (if, in their opinion, it was the plaintiff's duty to procure the' consent of the Cumberland and Pennsylvania Railroad Company to the connection,) that he ' had not failed [275]*275to do so, instead of requiring them to find affirmatively that he had procured such consent.
The second prayer of the appellee, which was granted, is free from objection. The term “forthwith” in the contract was properly construed by the Circuit Court to mean “in a reasonable time;” and if the jury found the facts stated in the second prayer, they were properly instructed that they might find that “'the defendant had a reasonable time in which to erect the said trestle for the plaintiff.”
It appears from the record that before the proceedings for condemnation were taken, the appellee had and used a connection of his switch and trestle, with the Cumberland and Pennsylvania Railroad, which he was entitled to maintain in perpetuity, and evidence was given tending to prove that it was practicable for the appellant so to construct the trestle, provided for in the inquisition as to connect the same with the Cumberland and Pennsylvania Railroad, at the same point where the appellee’s connection therewith formerly existed.
It further appeared that certain legal proceedings had been instituted against the appellant, under which an injunction had been issued, which fact was relied on by the appellant as an excuse for its delay, and failure to perform its contract with the appellee.
By the agreement of counsel, contained in the record, it appears that “the appellant, during the time the injunction case referred to was pending, built its road and was not in any way delayed by the injunction, except that it was unable to have certain inquisition cases against the Baltimore and Ohio Railroad Company, and the Cumberland and Pennsylvania Railroad Company, confirmed by the Circuit Court, until after the injunction case was finally determined by the Court of Appeals,” which final determination was made in December 1880.
In view of the facts above stated, the fourth prayer of the appellee was granted, and we think the jury were thereby [276]*276correctly instructed, if they found the facts therein enumerated, “that the injunction offered in evidence by the defendant affords no good or valid reason or excuse for not having erected plaintiff’s trestle, and for not having-made the said connections.”
For the reasons stated in passing- upon the third plea, it was not error to reject the appellant’s first prayer, which relies for defence upon the continued refusal of the Cumberland and Pennsylvania Railroad Company, to permit the proposed connection to be made with its road, this refusal, as before said, does not furnish to the appellant a valid legal excuse for its failure to perform its contract. For the same reason, the appellant’s second prayer was properly refused. This' prayer was also defective, because in submitting to the jury to determine whether the appellant had a reasonable time for performing its contract, it omitted to enumerate a material fact, which had been admitted, viz., “That the appellant had not in any way been delayed in constructing its road by the pendency of the injunction proceedings.”
We are next to consider whether there was error in the rulings of the Circuit Court, set out in the first, second and third bills of exception.
The appellant was bound under the contract, to construct for the appellee, a trestle upon the line described on the plat referred to in the inquisition, the appellee was not legally bound to accept in lieu thereof, a trestle erected in another place, fifty feet from that line, upon the land of the Cumberland and Pennsylvania Railroad Company, and which Company, according to the evidence, refused to ship coal over it, unless the appellee would agree to pay rent; the evidence offered in the second hill of exceptions was therefore inadmissible. And for a like reason it was not error to sustain the objection made by the appellee to the testimony offered in the third hill of exceptions.
[277]*277The testimony mentioned in the first bill of exceptions, was objected to by the appellant as inadmissible, because the loss of profits alleged to have been suffered by the appellee, in consequence of the breach of contract by the appellant, was merely speculative and contingent, and therefore, too uncertain to furnish a standard or measure of damages.
It is not necessary, in our opinion, to decide that question. Conceding the objection to the testimony to be well founded, the appellant is not entitled to a reversal of the judgment for that cause; for the reason, that according to our construction of the terms of the inquisition, the sum of $1500, thereby awarded to the appellee, is not in the nature of a penalty; but is liquidated damages, or a fixed sum ascertained by the jury, to be paid by the appellant to the appellee, in case the former shall fail to perform the conditions therein specified. And as the verdict and judgment are for $1200 only, the appellant was not injured by the admission of the testimony stated in the first bill of exceptions.
That the sum of $1500 is in the nature of liquidated damages, is in our judgment, clear from the terms of the inquisition.
The jury in estimating the damages, award to the appellee $600 in money, and in addition thereto, award and determine that the appellant shall do and perform certain things for the benefit of the appellee; and “in case of non-compliance with or breach of these conditions,” they award (the additional sum of) “$1500 damages to the appellee for said breach or non-compliance therewith.” That is to say, to perform the conditions required, or to pay $1500, in lieu thereof.
In Geiger vs. The Western Maryland R. R. Co., 41 Md., 4, in which a question of this kind arose, and a number of authorities were cited, it was stated as a rule deduced from the decided cases, “that where the parties [278]*278have declared in clear and unambiguous terms, that a certain sum shall be paid by way of compensation, upon a breach of the contract, or where the covenant is to do several acts, the damages arising from the breach of which are uncertain, and incapable of being ascertained by any fixed pecuniary standard, and especially where the contract provides that the sum so named shall be paid as liquidated damages, the sum so fixed and agreed upon will be considered as compensation for damages resulting from the breach, and not as a penalty.”
(Decided 12th April, 1882.)
In our opinion, the case at bar falls within the rule above stated. We refer also to 2 Sedgwick on the Measure of Damages, (Lth Edition,) marginal page [421,] et seq., where the cases are collected, and the rules deducible therefrom are clearly stated. The second rule laid down by the author is as follows:
“When the agreement is in the alternative, to do some particular thing, or pay a given sum of money, the Court will hold the party failing, to have had his election, and compel him to pay the money.”
The present case falls also within this rule. .
Being of opinion for the reasons stated, that there is no valid legal ground for a reversal of the judgment of the Circuit Court, it will be affirmed.
Judgment affirmed.