Stephen Putney Shoe Co. v. Richmond, Fredericksburg & Potomac Railroad

98 S.E. 11, 124 Va. 389, 1919 Va. LEXIS 133

• Court: Supreme Court of Virginia
• Decided: January 16, 1919
• Status: Published

Opinion

Sims, J.,

after making the above statement, delivered the following opinion of the court.

[1] As appears from the above statement this is the same cause which was before us on a former appeal therein (Stephen Putney Shoe Co. v. R. F. & P. R. R. Co., 116 Va. 211, 81 S. E. 93); the parties, the issues and the material facts, consisting of writings to be construed and the actions of the parties thereunder are all the sáme as shown by the record on the present as on the former appeal in so far as some of the matters in issue now before us are concerned. And there is no controversy in the cause over the well settled rule that, such being the case, the decision and decree of this court on the former appeal is the law of the case in so far as such decree passed upon and adjudicated the questions which are presented for our decision upon the present appeal. The points of difference between the parties on that subject are merely as to how far the decree of this court on the former appeal did pass upon and adjudicate such questions. There are also further points of difference between the parties as to what should be the decision of certain questions in issue which they claim, respectively, were left open for future consideration and determination by the decree aforesaid on the former appeal. We will consider and pass upon the questions raised by such points of difference in their order as stated below.

[2] 1. We will consider first the controversy in the cause upon the subject of what is the proper location of the right of way for certain railroad tracks as provided for in the deed of 1903 mentioned in the above statement.

la. We are of opinion that the decree of this court on the former appeal in its affirmance of the decree of the court below of July 30, 1912, in so far as it concerned the subject now under consideration, (such provisions of such decrees being quoted in the above statement) passed upon and adjudicated the question of the proper location of the right of way under consideration at its point or place of departure from the northern line of the lot of the shoe company and fixed the location of such place of departure of such right of way as the railroad company has now located it, as shown by the above statement and the diagram last above exhibited therein, being where the right of way indicated by the lines marked “C” on such diagram form a junction with what is designated in the record as the northern line of the boundary of the lot of the shoe company, such junction being somewhat to the east or southwest of the centre of such northern line, and is “so located as to permit the proper operating connection of tracks thereon with the present tracks” (on the shoe company’s lot) “at the point of entrance into said shoe company’s building” (the latter point being in the centre of such building), as was required by paragraph 3 of said decree of July 30, 1912, which was affirmed on the former appeal.

The question whether such junction point or place of departure of the right of way from the northern line of the lot of the shoe company had been permanently fixed and located under said 1903 deed, or whether it could be changed, was put directly and expressly in issue by the pleadings and proof of both the shoe company and railroad company in the proceedings in the cause prior to and upon the former appeal, and the material facts bearing on such issue were also the same as shown by the record in the former, as on the present appeal, as is set forth in detail in the above statement. It necessarily resulted from the position taken by the shoe company prior to and upon the former appeal as to what its action had been with respect to its exercise of its rights under the 1903 deed to locate the railroad tracks upon its own lot, that the conclusion was unescapable that it, at least, had elected and selected such location once for all under such deed; it could, of course, make but one election and location under such deed, and that carried with it the further conclusion that the railroad company, since it had acquiesced in that location, was bound under the 1903 deed to so locate the right of way in question on its land as to connect with the tracks so located on the shoe company’s lot; which settled the question of whether the point of juncture of such right of way with such tracks could be after-wards changed. Accordingly, the decree of the court below of July 30, 1912, and its affirmance on appeal as aforesaid expressly passed upon and adjudicated such question and expressly fixed the location of such point or place of departure of such right of way as aforesaid. That, thereby and thereupon, became the law of the case, and, hence, the proper place of location of such point or place of departure of the right of way was no longer a subject of inquiry or of consideration or determination by the court below nor can it be re-opened by us on the present appeal.

lb. The decree of this court on the former appeal did leave open for future consideration and determination the location of the said right of way from its said point or place of departure thence on to its junction with the main line of railroad on the railroad company; the adjudication on the subject upon the former appeal affirming the decree of the court below then under review, being merely, in the language of the latter decree, so far as material, that—“said railroad company is now and hereby authorized and required to select and locate the strip aforesaid along a route to be designated by said railroad company, provided such route is reasonably safe and convenient *

We come now, therefore, to the consideration of the only points of difference between the shoe company and railroad company on the subject of the proper location of said right of way which are open for our consideration upon the present appeal.

The positions of the shoe company on these points are, in substance, as .noted in the above statement, that the location of the right of way which has been now made by the railroad company from the said point or place of departure of it to the main line of the railroad company is not “reasonably safe and convenient” as required by the decree of July 30, 1912 for the following reasons :

(a) . Because “it contains reverse curves * * is filled with curves and the natural lay of the land is irregular requiring great danger in operating the cars upon a track built to conform thereto.”

(b) . Because “it is the most incompetent and least safe route it could locate over its lot.” And

(c) . Because'it is “expensive to build and operate * * * it” (the railroad company) “selected the most expensive location and will call on respondent” (the shoe company) “to pay the cost thereof.”

These positions assail the location of the right of way in question, on three grounds, namely:

First: Because the operation of the cars on the tracks thereon will be dangerous by reason of the curves therein and the grade thereof, if the tracks are built to conform to the natural lay of the land.

Secondly: Because the operation of the cars will be expensive. And

Thirdly: Because it is the most expensive to build and operate.

We will consider these positions in their order as stated,-

First. As to the danger of operation of the -cars, if the tracks are built to conform to the natural lay of the land.

This is as yet a moot question. The decree aforesaid involved in the former appeal in the cause did not require the railroad company to disclose in its notice to the shoe company the grade proposed. It did require, however, all construction to be “done under the supervision of said railroad company’s engineers and along lines and grades to be prescribed by said railroad company.” It appears from the evidence in the cause that no grades have as yet been prescribed by the railroad company for the proposed tracks, ts position taken in its reply brief in the cause is that it has never been its “intention to establish any ‘but a reasonable grade which could be successfully and conveniently operated throughout the entire length to the Putney building’ and that it has never intended to prescribe the building of the tracks “to conform to the natural lay of the land.”

Secondly. As to the expense of operating the cars on the tracks as now proposed by the railroad company: there is testimony in the cause for the shoe company and railroad company on the question of whether the cars on the tracks as proposed by the railroad company can be operated without steam or equivalent motive power,, i. e. by hand, by the use of pinch bars, as easily as on tracks if located without the reverse curve or without as great curves as there will be in the tracks if located as proposed. The preponderance of the evidence is to the effect that if the pinch-bar method of operating the cars were adopted they could be more easily operated on a track with lesser curves in them. But we find nothing in the deed of 1903. when construed in the light of the situation and circumstances surrounding the parties, which warrants the construction of it to the effect that the shoe company is entitled to have the right of way for said tracks so located that the latter can be, or that they should be so constructed that the cars thereon can be operated the entire length of the tracks by hand, by the use of pinch-bars, without other motive power. On the contrary we think that the motive power in use by the railroad company in 1903 for the placing of cars on spur and switch tracks, namely, that of locomotives, or some equivalent motive power, was in contemplation of the parties for the movement of cars to and from said main line of railroad upon and from said tracks at the time of the covenant in the deed of 1903, Which fixed the rights of the parties as to such right of way and tracks; and that the shoe company is not entitled to have the “convenient” character of the proposed tracks required by the decree of July 30, 1912, measured and determined by their fitness for use for the movement of cars thereon to and from the main line of railroad by any other motive power than steam locomotive power or its equivalent. The tracks should be so constructed that it would be practical for the shoe company to move single cars, empty or loaded, for short distances to and from its building by hand-power by the use of pinch-bars, since there is testimony in the case tending to show that such use of hand-power in moving cars to such extent was usual and customary among mercantile concerns under similar conditions, and hence must be taken to have been in contemplation of the parties at the time of the execution of said deed of 1903; and the preponderance .of the evidence in the cause shows that if the grade of the tracks is on a level at the curves on their ends nearest the lot of the shoe company that that will be practical.

Thirdly. As to the route now proposed by the railroad company for the railroad tracks aforesaid being the most expensive to build and operate.

The evidence in the cause is to the effect that the expense of building the railroad will be less on the route mentioned than on that proposed by the shoe company.

The preponderance of the evidence is that if the roadbed is constructed upon a reasonably proper grade so that it can be reasonably “conveniently operated throughout the entire length to the Putney building,” the cars to and from the main line of railroad can be operated by steam locomotive power, or its equivalent, without any excessive expense, and that single cars, loaded or empty, can be moved with reasonable care for short distances to and from its building by the shoe company by hand power by the use of pinch-bars, which will eliminate any excessive expense in such operation, of the cars.

Our conclusion, therefore- on the branch of the cause considered next above, is that the. location of the right of way aforesaid, which has been selected by the railroad company as aforesaid, complies with the requirements of the former decrees in the cause and that there is no error in the decree of the court below now under review in so deciding.

[3] 2. We have now to consider the controversy in the cause upon the subject of what are the rights of the parties, respectively, over and upon the twenty-seven foot strip of land mentioned in the statement of the case preceding this opinion.

As set forth in such statement the question of what were the rights of the parties aforesaid, respectively, in, to, over and upon such strip of land under the provisions of the deed of 1903 and of the preceding contract of sale quoted in such statement of the case was involved on the former appeal. The proper construction of such provisions on such subject in such deed and contract were in issue between these same parties to this 'cause on the former appeal; the material facts bearing on such issue were also the same as shown by the record on the former as on the present appeal; and, under the well settled rule above adverted to, in so far as such rights have been passed upon and adjudicated by the opinion and decree of this court on the former appeal, ssüch adjudications then became and is now the law of the case. The question which first confronts us on this branch of the case, therefore, is how far the decree of the court below now under review is in accord with the decree of the court on the former appeal touching the same matters in controversy then and now in issue.

The chief matter of controversy now before us, with respéct to said twenty-seven foot strip of land, is, as appears from the statement of the case preceding this opinion, whether, in addition to the use of such strip by the railroad company as a passage way to and from Broad street to the property of the railroad company as a walk way for its officers and employees when using it in such a way as not to interfere with the rights of the shoe company as fixed' by the decree aforesaid on the former appeal, the railroad company has the right to use such strip of land “as a driveway ,inot alone for its” (officers and) “employees, but also for the use of any and all patrons of said railroad.” The language last quoted is from a pleading in the cause prior to the former appeal and the precise question of whether the railroad company had the right to use such strip of land as a driveway as aforesaid, “not alone for its employees, but also for use of any and all patrons of said railroad” was before this court for decision on the former appeal. The position of the shoe company then was, and is now, that to make of the said strip a driveway for all of the patrons of the railroad company would make it a public street for all practical purposes touching the rights of the shoe company over and upon such strip of land.

As will appear from the opinion of this court on the former appeal it was then held that since the executory contract of sale preceding the deed of 1903 contained the provision that the vendor “will keep open as a street” the said strip of land, and such provision was changed when the deed of 1908 came to be made, the provision contained in the deed, on the subject, being substituted for said provision in the executory contract of sale, the former must be construed in the light of the consideration that it was a substitute for the latter provision, and the opinion of this court was, in substance, that the railroad company was not entitled to make such use of said strip of land as would be made of it if it were a street and it reversed the preceding decree of the court below in its provisions which allowed the use of such strip as a driveway, which will be hereinafter more specifically adverted to.

The decree of the court below now under review, in its dealing with the subject now under consideration, follows very closely the decree of this court aforesaid on the former appeal, as appears from the quotation from it given in the statement preceding this opinion; but it does decree that the railroad company “has the right to permit' * * * vehicles to pass through any and all parts of the said twenty-seven foot strip at any time and for any purpose * * * ;” and it is of this provision in such decree, in so far as the twenty-seven foot strip of land is concerned, that the shoe company now complains. Such use as so allowed is not confined to the officers or employees and patrons of the railroad company, but permits a general use by any and all persons with the assent of the railroad company—which means such use by the public generally if permitted by the railroad company. This is, in substance, the very provision of the decree of .the court below of July 30, 1912, on the subject now under consideration, which was reversed by the decree of this court on the former appeal; only, the decree now under review goes farther and is less restricted in its express allowance of a use of the strip as a driveway. It is true that such provision is coupled with the limitation “provided always that the shoe company is not thereby obstructed or interfered with in the exercise and enjoyment of its superior rights aforesaid;” but the samo proviso was, in substance, contained in the decree of July 30, 1912, on this subject, yet such decree was reversed as aforesaid. The provisions in the decree of July 30, 1912, touching the rights of the railroad company with respect to the use of said strip as a driveway was as follows as appears from the terms thereof quoted in the above statement : “Said shoe company must now (not) block said strip unreasonably, so as to prevent other wagons passing through the same in single file. The said roalroad company has the right to make any use of said strip not interfering with, or inconsistent with, the reasonable exercise by said shoe company of its aforesaid rights, which rights are primary.” Such were the provisions of such decree under consideration by this court upon which its former opinion, decision and decree on this subject were rendered. The result thereof, therefore, was the holding that a use of said strip as a passage way for wagons “in single file” subject to be interrupted by the reasonable exercise by the shoe company of its rights of easement was not permissible on the part of the railroad company. Such holding was .thereby made the law of the case.

The decree now under review does not confine the use in question to wagons “in single file.” Otherwise its provisions on this subject are substantially the same as those of the decree of the court below which was reversed as aforesaid.

In truth any substantial use of said strip as a driveway by all of the patrons of the railroad company would be inconsistent with the “superior rights aforesaid” of the shoe company.

It is true that the evidence in the cause is meagre as to the frequency of the use which the shoe company has heretofore made of said strip as a driveway or as to how often it is blocked by its twenty-six and one-half foot wagons standing across the strip to be loaded or unloaded; and it seems from the record that for the greater part of the time the whole of the strip is not occupied by the use the shoe company makes of it for the purposes for which it is entitled to use it; but the evidence shows that such strip is so used by the shoe company as it has need therefor and that it is the only possible way for ingress and egress of the vehicles of the shoe company to and from its stables, and is the only open space upon which it can load and unload these vehicles and that such strip is at times entirely obstructed by such use. And it is manifest that the use of such strip as a driveway by the patrons of the railroad company and others, or even by such patrons alone, would, in practice, inevitably produce innumerable collisions and endless conflict between the agents and employees of the shoe company in its rightful use of said strip and those using it as a driveway under the permission of the railroad company. In view of this situation which inheres in the very nature and character of the use of the strip as a driveway by the public generally, or even by the patrons of the railroad company, which serves the public generally, such use is impracticable. It would be in conflict with the dominant right of the shoe company adjudicated by the decree of this court aforesaid entered on the former appeal which provided for the shoe company “at all time to have the free use of said strip of land for ingress and egress in, to and through said strip of land and all parts thereof to and from its own land adjoining the same; to the use of the said strip of land in receipt and delivery of its goods into and from all buildings upon its land from and to its vehicles standing upon or across said strip of land; * * * and that said railroad company, its agents, employees or patrons are not entitled to make use of said strip in any manner that will interfere with or obstruct the said shoe company in the full enjoyment of its said easement.” Indeed, we are of opinion that any use of said strip as a driveway, even by the officers and employees of the railroad company if it were so frequent as to amount to such a substantial use as to be of any worth to the railroad company would inevitably at times “interfere with or obstruct the shoe company in the full enjoyment of its easement,” and hence would be impracticable, in view of the dominant rights of easement of the shoe company aforesaid. Theoretically this may not be so, in view of the proviso contained in the decree now under review, above quoted; but practically it is so, as we think. It is a law of physics that two objects cannot occupy the same space at the same time; and two or more moving objects, of the like character, seeking to use the same space, at the same time, where the right of such use of one is dominant, will inevitably produce conflict of rights. The situation is wholly different from what it would be if these rights were equal, as-is true of vehicles on a public highway, in which case mutual concession or a law of the road would serve to avoid conflict of rights.

We are, therefore, of opinion that the effect of the decree aforesaid entered on the former appeal was to adjudicate that the railroad company has not the right to itself use, or to authorize any one else to use, said strip of land as a driveway; and hence we are of opinion that the decree of the court below under review in this particular is not in accord with the former decree of this court..

As to the right of the railrod company “to permit persons * * to pass through any and all parts of the said twenty-seven foot strip, at any time and for any purpose, provided always, that the shoe company is not thereby obstructed or interfered with in the exercise and enjoyment of its superior rights” fixed by the decree aforesaid on the former appeal, which right is allowed the railroad company by the decree of the court below now under review: As the property of the railroad company is now used and as the said strip of land has at present no walkway for persons, its use as a passage way by persons would likely be small and would be practical without causing interference: with the full enjoyment of its easement by the shoe com-, pany; but if it were used as a walkway by the public generally, in passing from Broad tc Marshall street or if the railway were to locate a passenger depot on its property and said strip were used as a passageway for its passengers to and from Bvrari street, it .is very probable that thereby interference with and obstruction of the full enjoyment of said easement by the shoe company would be caused. Such a situation, however, as we understand the record, has not yet arisen. Hence we are of opinion that the record does not disclose that the decree under review is not in accord, on the subject under consideration, with the decree aforesaid entered on the former appeal.

As to the right to have or maintain on said strip the “gates and fences” which are located thereon and the alleged claim of the shoe company of the right to use a portion of the strip as a flower garden and to use the strip for storing boxes, etc., and the right to keep its vehicles standing across said strip even when they are not being loaded and unloaded, drawn in question before use on the present appeal, as noted in the statement above, the shoe company does not claim in its pleadings in the cause to have any of such rights, and it is apparent that such rights have been denied to it by the decree of this court on the former appeal. So that, in so far as such subjects are mentioned, among others, in the decree now under review, we are of opinion that such decree is in accord with the decree aforesaid on the former appeal and in so far as not mentioned the denial of such rights is, in effect, adjudicated by the last named decree.

Our conclusion, therefore, on the subject of the rights of the parties with respect to the said twenty-seven foot strip . of land, is that as such strip of land and the adjacent property of the railroad company is now situated and used, the decree under review correctly adjudicates such rights and is in accord with, the decree of this court on the former appeal, except in the single matter of the right of the railroad company to use or permit the use of said strip as a driveway; but that as to this matter there is error in the decree under review.

For the foregoing reasons we are of opinion to affirm the decree complained of in all respects except in so far as it concerns the rights of the railroad company to use or permit the use of the twenty-seven foot strip of land in the bill and proceedings mentioned as a driveway. The decree will be amended so as to deny such right to the railroad company. We are of opinion to provide in the decree of this court, however, that it is entered without prejudice to the right of the shoe company, or its successors or assigns, to seek relief in future by any suit or action which it might lawfully institute but for the said decrees, and the present decree of this court in this cause, in the event that it should be found impracticable to construct the roadbed for the tracks aforesaid to such grades and lay the tracks thereon in such manner, along the right of way therefor aforesaid, that cars may be operated thereon by steam locomotive power or an equivalent motive power, to and from the main line of railroad of the railroad company with reasonable safety and convenience, and so that single cars, loaded or empty, can be moved with reasonable care on the two curves in the tracks nearest the shoe company’s lot, by the use of pinchbars; or in the event that the use of said twenty-seven foot strip of land as a passageway of persons, without interference with and obstruction of the full enjoyment of said easement by the shoe company, should be found in future to be impracticable from any cause not due to the fault of the shoe company or its successors or assigns, as the case may be. And we are of opinion to award the costs of this appeal to the railroad company as the party substantially prevailing.

Amended and affirmed.