that it was error to charge otherwise and (222 Pa. 490) PETTIT v. JAMESTOWN & F. R. CO. (Supreme Court of Pennsylvania. 1909.) Jan. 4, 1. ADJOINING LANDOWNERS (8 3*)-LATERAL SUPPORT. The right of an owner to lateral support is an incident to the land attached to and passes The land conveyed was particularly described by reference to the location survey of the defendant's railroad. In the description a reference is made to a map attached to the deed for a further description of the premises conveyed. Reservations were made of the oil and gas, a railroad crossing over the premises conveyed, and the right to lay pipes and oil lines under the railroad. By deed, dated November 28, 1905, Jerome conveyed the same land to the Jamestown & Franklin Railroad Company, the defendant in this action, which prior thereto had located a railroad over it. After the sale to Jerome, McCalmont's executors sold the residue of the tract of which the Jerome land was a [Ed. Note. For other cases, see Adjoining part to Joseph Pettit, the plaintiff, and conLandowners, Cent. Dig. § 7; Dec. Dig. § 3.*] veyed it to him in fee by deed dated Febru2. ADJOINING LANDOWNERS (§ 3*)-LATERAL ary 10, 1906. Subsequent to this purchase SUPPORT-DAMAGES. by Pettit, the defendant company constructA landowner conveyed a strip of land pass-ed the railroad upon the strip of land which ing through his tract to an individual described as trustee. The land was particularly described by reference to the survey of a railroad, and the deed reserved a railroad crossing over the strip with the right to lay pipes under it. Thereafter the strip was conveyed to a railroad company. Held, that in the absence of any provision in the deed to the trustee obligating him to build a railroad, and in the absence of any release of damages, if the company in constructing its road causes adjoining land to fall, it is liable in damages to the owners. with the soil. [Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 7-16; Dec. Dig. § 3.*] it had acquired from Jerome. The plaintiff alleges, as his cause of action, that in the construction of the road the defendant "removed or caused to be removed the lateral support of plaintiff's land lying and being on the side of the hill adjacent to defendant's proposed line of railroad to such an extent, and in such a manner that the surface of the earth on said hillside cracked or opened, and slid down the hill, carrying with it derricks, machinery, and other appliances placed thereon by plaintiff, and used by him Appeal from Court of Common Pleas, in the production of oil therefrom, and deVenango County. Action by Joseph Pettit against the Jamestown & Franklin Railroad Company. Judg. ment for defendant, and plaintiff appeals. Reversed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Robert F. Glenn and Peter M. Speer, for appellant. A. R. Osmer, J. H. Osmer, and N. F. Osmer, for appellee. MESTREZAT, J. This is an action of trespass brought by the plaintiff to recover damages from the defendant for injuries which he alleges he sustained by reason of the removal of the lateral support from his land. The court directed a verdict for the defendant. and, judgment having been entered thereon, the plaintiff has taken this appeal. In the year 1905 the estate of S. P. McCalmont, deceased, was the owner of several tracts of land in Venango county, one of which lay along the Allegheny river and contained about 135 acres. By deed dated January 23, 1905, McCalmont's executors conveyed in fee simple to F. J. Jerome, trustee, a part of this tract, being a strip adjoining and extending along the Allegheny river about 190 rods, and containing 15.6 acres. stroying the oil wells thereon and the fixtures and fittings therein." It seems that the strip of land purchased by Jerome and now held by the defendant company lay along a steep hillside extending from the Allegheny river above and beyond the defendant's premises, and that outside of the defendant's land the plaintiff was operating extensively for oil and had put down several wells. In the construction of the railroad, it was necessary to make several deep cuts and excavations in the premises, and the plaintiff claims that in doing so the defendant caused the hillside, a part of his land, to slip and slide down the hill towards the river and carry with it his oil wells and other property. There is no allegation of fraud, accident, or mistake in the execution or delivery of the deed by McCalmont's executors to Jerome, nor is it claimed that it does not express the agreement of the parties relative to the land conveyed. No attempt has been made by either party to reform it so as to make it express a different intention or a different purpose. It must, therefore, be taken to be the contract of the parties, and as such it must speak for itself and determine their rights. Hence the single question in the case is whether the title acquired by the Jerome deed justifies the defendant company in digging and excavating on its take, excavate, and embank, make, grade, and lay down and construct the road." But the owner of the land is fully protected by the statute, which requires the railroad company to make "compensation proper for the damage done or likely to be done to, or sustained by any such owner," and this includes compensation not only for the strip of land 66 feet in width at grade but for the additional width taken at cuts and fills. Any present or future injury which the owner may sustain by the construction of the road must be compensated for by the company. It is not only the damage which presently results from the construction of the road, but also that which is "likely to be done" thereby that is the measure of the owner's compensation for the injury done him. It will therefore be observed that a railroad company, under eminent domain proceedings, may appropriate for its use a strip of land of the statutory width, and also, when necessary, may take a greater width at cuts and fills, but compensation must include damages for the additional ground taken. own premises in constructing its road so near to the plaintiff's land as to remove the lateral support, and thereby cause the plaintiff's land to subside and fall into the excavation. The trial judge held that it was apparent from the evidence in the case that the strip of land was purchased by Jerome as trustee for the defendant company for the purpose of constructing a railroad thereon, and that the deed conveyed the premises to Jerome and released the defendant company from all damages, including the withdrawal of lateral support occasioned by the construction of the railroad. On this ground the learned judge directed a verdict for the defendant company. The court below in its opinion refusing a new trial says: "If the damages had been assessed under the statute, clearly the probability of the injury now complained of would have been considered and the assessment would have covered it." The theory of the learned judge seemed to be that the premises were acquired by Jerome for a right of way of a railroad, that the grantors knew this fact, and that the deed took the place of condemnation proceedings. In other words, the learned judge regarded the deed by which the premises were convey-utors the equivalent of condemnation proed to Jerome as vesting in the grantee the same title and relieving him from damages to the same extent as condemnation proceedings instituted under the statute by a railroad company for the assessment of damages. In this we think the court was in error. Is the deed by which Jerome acquired title to the strip of land from McCalmont's exec ceedings in conferring upon Jerome or his grantee the right to enter upon the strip of land and construct a railroad thereon, and does the compensation named therein cover the damages which would be assessed in condemnation proceedings? A reference to the deed will answer this question in the negative. The defendant company does not claim to It is an ordinary deed conveying a fee-simple occupy the strip of land by virtue of the au- title to the strip of land described in it. The thority conferred by eminent domain. It un- consideration therein named is the price of questionably had the right to enter upon and the land conveyed and not compensation for condemn the strip of land for the purposes of damages resulting from the construction of its railroad. In doing so, it had the right to a railroad thereon. The purchaser takes a appropriate a strip of land 66 feet in width fee-simple title the same as any individual or and a greater width at cuts and embank- other purchaser under a similar deed. The ments for the use of its railroad. The statute deed does not convey "a right of way for railconfers this power upon railroad companies. road purposes," nor does it convey the strip It recognizes the necessity in various parts of land for railroad purposes. There is nothof the state of deep cuttings and embank- ing in it disclosing an intention to convey the ments in order to make a proper location. land for any particular purpose, or requiring While, therefore, the statute confines the com- the grantee to use it for any specific purpose. pany to a width of 66 feet at grade for its He acquires a fee-simple title, and, so far as road, it confers authority to take a greater the grantors are concerned, he may convey it width where cuts or fills are necessary to to whomsoever he pleases, or he may make make the statutory width at grade. While any use of it which he may desire, so long this authority is conferred on railroad com- as he does not offend the law. In other panies, the statute manifestly regards the ap- | words, Jerome acquired the title to this strip propriation of the extra width as a "taking" of land by a conveyance in fee-simple, and the under the Constitution, and requires due com- McCalmont title in the premises passed to pensation to be made for it in the assessment him absolutely. As he purchased as a trustee, of damages. The general railroad act of he was responsible only to his cestui que 1849 (P. L. 79) is broad in its provisions, and trust who might be an individual or a corpoconfers on the railroad company the author- ration. The owner has the right to put any ity to take the necessary land, not only for lawful structure on it or use it for any lawful its roadbed, but also for its depots, ware- purpose he sees fit. He may operate for oil houses, offices, etc., and "for any purpose nec- or gas, and use it exclusively for that puressary or useful in the construction, main- pose. He may devote it to manufacturing tenance or repairs in said railroad." It al-purposes. If he abandon it, the title will not We have examined our own cases on the subject, and none of them supports the contention of the defendant. In the cases cited by defendant's counsel, with possibly one exception to which we will refer hereafter, there was a release of damages or something It is true that the property is described by main in its natural condition, unaffected by reference to the location survey line of a any act of his neighbor, and, if the neighrailroad. It is likewise true that there is a bor digs upon and improves his own land so reservation in the deed that gives the grantor as to injure this right, he may maintain an a crossing over any railroad that may be con- action against him without proof of neglistructed on the premises, and also authorizes gence. Gilmore v. Driscoll, 122 Mass. 199, 23 him to lay pipe lines under the railroad. But Am. Rep. 312. Neither of the owners of adthe description and reservations do not de- jacent land has the right to excavate his soil prive the grant of its fee-simple character or so as to cause that of his neighbor to be looscompel the grantee to use it for railroad pur- ened and fall into such excavation. Washburn poses. The strong probability is that the on Easements, 514. The right of the owner land was acquired for the purpose of con- to lateral support of his land is a natural structing a railroad thereon, but there is not right. It is not simply an easement, but an a single line in the deed that compels the incident to the land, a right of property necgrantee to construct the road or deprives him essarily and naturally attached to and passof any right to which a fee-simple owner of ing with the soil. Wier's Appeal, 81* Pa. land is entitled. If, the day after the de- 203; McGettigan v. Potts, 149 Pa. 155, 24 Atl. livery of the deed by Jerome to the defendant 198; McGuire v. Graft, 25 N. J. Law, 356, 67 company, the latter had concluded to con- Am. Dec. 49; Farrand v. Marshall, 19 Barb. struct its road on the opposite side of the Al- (N. Y.) 380. There can be no question that, legheny river, and not over this land, it could if an individual owned the strip of land sold have sold and conveyed the land in fee sim- to the defendant and on which its road was ple and the grantee would have taken the constructed, he would be liable for the withtitle, subject to the reservations in the Jer-drawal of the lateral support to the plaintiff's ome deed. It is apparent, therefore, that land. This is the common law and it obtains there is nothing in the deed to Jerome which in this as well as in other jurisdictions. shows that the premises conveyed were to be used for railroad purposes or that compels the grantee to apply them to such purposes. Neither is there anything in the deed that shows that the grantors intended or agreed that the premises should be used for railroad purposes, or that they received any compen-equivalent thereto. Of course, the owner of sation for damages which would result to the residue of the farm from the construction of a railroad on the strip of land acquired by the grant. Their conveyance being a fee-simple title, the property passed from them, and the purpose for which it was acquired or the use to which it might thereafter be put was solely for the determination of the grantee. The defendant company, therefore, holds the premises in fee, subject only to the reservations named in the McCalmont deed. So far as the grantors are concerned, it occupies the same position as an individual who had acquired the fee-simple title. It has the same rights and is subject to the same duties and obligations in the use of the premises as an individual were he occupying its place. In the Jerome deed there is no release of damages arising from the construction of a railroad over the premises conveyed, nor is there a release authorizing the defendant with impunity to do any other act on the premises which would unlawfully injure the residue of the tract now owned by the plaintiff. If, therefore, an individual would be liable for damages for the injury complained of in this action, the defendant company is equally liable and must respond in damages for the injuries done. It is settled law that the own-out further compensation all the suitable er of land is entitled to have it supported and protected in its natural condition by the soil of the adjoining proprietors. In the case of land, which is fixed in its place, each owner land cannot claim damages for injury done by the construction of a railroad on a strip of land which he had sold, and, by the instrument conveying it, had also released the purchaser from liability for damages to the residue of the tract by reason of the construction of the railroad. When the deed conveying the premises sufficiently discloses an intention not only to pass the title to the land, but also to release the grantee from damages by reason of the construction of a railroad on the premises granted, the two purposes disclosed by the deed must be carried out, and the deed will not only convey the title, but will also release the damages. The recent case of Hendler v. Lehigh Valley Railroad Company, 209 Pa. 256, 58 Atl. 486, 103 Am. St. Rep. 1005, was trespass against the company for taking sand outside of its right of way which it had acquired by an agreement with the owner of the land. In sustaining a judgment for the plaintiff, this court, by the present chief justice, said (page 262 of 209 Pa., page 488 of 58 Atl. [103 Am. St. Rep. 1005]): "When, therefore, a railroad company obtains a right of way, either by condemnation or as in this case by an equivalent agreement, it has the right to use with * If materials, except timber, within the lines of (222 Pa. 487) OHIO PAIL CO. v. A. W. COOK & CO. AGAINST WHOM PERFORMANCE MAY BE EN- formance, Cent. Dig. 88 51, 52; Dec. Dig. 22.*] 2. VENDOR AND PURCHASER (§ 239*)-RIGHTS OF BONA FIDE PURCHASER. an embankment, they may do so, but must | which the adjacent property has sustained pay for the additional land occupied, and so, by reason of the removal of lateral support. if it is necessary to go outside the lines to The judgment is reversed, and a venire give the walls of a cut the slope required to facias de novo awarded. prevent sliding or washing down, they may do so on paying for the additional materials taken outside." North & West Branch Railway Company v. Swank, 105 Pa. 555, is relied on by the defendant to sustain its contention that the company is relieved from damages for the injuries complained of in this case. That case, however, does not sustain the defendant's position. The contract was not a A lumber company sold under a written deed conveying the premises in fee simple. agreement all timber of a certain kind and size, and by a second agreement all timber of a cerIt was an agreement that the railroad com-tain kind without regard to size. It thereafter pany "shall have the right of way through verbally agreed to cut and haul the timber to my land" for "the amount of damages" fixed the purchaser. Afterwards the company sold by an agreement between the railroad com- the original agreement and the oral agreement. the land to another person with knowledge of pany and the owner of another tract of land Held, that such purchaser could not be compellthrough which the road was constructed. ed to specifically perform the act of cutting and that was simply an agreement that the com- hauling the timber. pany should have "a right of way" for the damages agreed upon by the parties. The railroad company therefore got by the agree ment precisely what it would have secured under condemnation proceedings, simply a right of way, and it paid therefor the amount of damages fixed by the parties. Under the agreement, if the railroad company had subsequently vacated the premises, the land would have reverted to the owner. The damages agreed upon, of course, included compensation for all the injuries done the owner by reason of the taking of the land for railroad purposes and the construction of the road thereon. The company could not have devoted the land to any other purpose with-erset County. out forfeiting it to the former owner. The Bill by the Ohio Pail Company against A. agreement simply took the place of condemna- W. Cook & Co. From a decree for plaintiff, tion proceedings, and, when it was interposed as a defense to the proceedings instituted by the owner to have damages assessed for the construction of the road, it necessarily deprived him of the right to recover. The agreement did not, as does the deed in the case in hand, convey a fee-simple title to the land, but is simply a release of damages, and was so regarded by this court in Rudolph v. Pennsylvania Schuylkill Valley Railroad Company, 186 Pa. 541, 554, 40 Atl. 1083, 1087, 47 L. R. A. 782, in which we say: "In several cases commencing with Railway Company v. Swank, 105 Pa. 555, we have held that a mere release by the owner of a right of way was a bar to a subsequent action for damages for the construction and lawful operation of the railroad." We are of opinion that the defendant company occupies the same position here as an individual owning property adjacent to the plaintiff's land, that the deed to Jerome from the plaintiff's predecessor in title does not release the damages to the residue of the land arising from the construction of a railroad on the land conveyed to the company, and that the company is liable for any injury Where a lumber company sold by written contract timber of a certain kind and size, and by a second agreement all timber of a certain species without regard to size, and thereafter sold the land to one having knowledge of the first but not of the second agreement, such vendee cannot be enjoined from converting to his own use the timber on land which the lumber company had acquired after the date of the original agreement. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 239.*] Appeal from Court of Common Pleas, Som defendant appeals. Modified. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. W. H. Ruppel, C. Z. Gordon, and Chas. F. Uhl, Jr., for appellant. J. A. Berkey, Clar ence L. Shaver, and Wm. G. King, for ap pellee. FELL, J. It is averred in the bill filed that in September, 1901, the Droney Lumber Company was the owner of a large tract of timber land, and that it entered into a written agreement with the plaintiff for the sale of the poplar, cucumber, bass, and linn timber of certain sizes, and agreed to furnish cars at convenient point on the line of its road and haul the timber to the plaintiff's mill without charge. The plaintiff was to erect a mill on the land of the lumber company, to follow its log cutters, cutting over only such land as they had cut over each year, and to load and unload the timber. In December, 1901, a second written agreement was entered into which provided for the sale and delivery at the plaintiff's mill of all the basswood without regard to size. In | undertaken to perform by virtue of said conpursuance of these agreements, the plaintiff tracts," and to pay such damages as may entered into possession and built a mill at a be established on further hearing. cost of $10,000, and the contracts were carried out by both parties until February, 1906, when the lumber company sold all its interest in the land and lumber to A. W. Cook & Co., the defendant, who bought with knowledge of the agreements and carried them out until July, 1906, since which time it has refused to deliver the basswood or permit the plaintiff to cut and take away any timber, and has cut and converted the same to its own use. The prayers of the bill are for a decree restraining the defendant from converting the timber to its own use, requiring the carrying out of the contracts, and for an account for timber taken. The decree is not limited in its operation to lands owned by the lumber company at the time the agreements of September and December, 1901, were made, but extends to all lands afterwards acquired by the company and conveyed by it to the defendant. The finding of fact on which the enlargement of the decree is based is that it appeared that some tracts were acquired by the lum ber company after it had entered into the contracts mentioned, and it did not appear from the evidence what had been cut over at the time of the sale to the defendant, and that the lumber company had made no distinction between before and after acquired lands in delivering timber to the plaintiff. The burden of showing what lands were included in the contracts was on the plaintiff, and, if as to any tracts its proofs were indefinite or unsatisfactory, it failed as to them. Moreover, the agreements relate only to lands then owned by the lumber company and could not be extended as against it, and much less as against its grantee without knowledge or notice to lands afterwards acquired. The decree also goes too far in enforcing the rights of the plaintiff secured against the lumber company by the second agreement and in requiring the defendant to furnish cars and haul lumber, as provided by the first. Of the second written agree ment the defendant had no knowledge. The operations on the land by the plaintiff were all consistent with its rights under the first agreement, and they were not notice of the existence of other rights and gave rise to no duty of inquiry. The agreement to haul lumber was a purely personal one by the lumber company, and cannot be specifically It was found by the court that soon after operations had been commenced under the written agreements of September and December, 1901, a supplemental verbal agreement, revocable at any time by either party, was entered into whereby for an increased price the plaintiff was relieved from all work in the woods and all timber was to be cut and delivered by the lumber company; that the parties operated under this agreement | for four years and up to the time of the sale by the lumber company, and that the agreement was carried out by the defendant for some months after its purchase; that at the time of the purchase by the defendant it had actual knowledge of the first written agreement and of the verbal agreement, and of the possession and operations of the plaintiff; but that it had no knowledge of the second written agreement, and that in the conveyance of the land and the sale of the personal property there was no reservation of any right in favor of the plaintiff, and that the defendant had not agreed with any one to carry out the contracts which the plain-enforced against the defendant. The limit tiff and the lumber company had entered into. The decree enjoins the defendant from converting to its own use any of the timber mentioned in the written agreements, from Interfering with the plaintiff in the exercise of rights conferred by these agreements, and requires the defendant "to perform the cove-priated by the defendant. nants, stipulations and conditions which the Droney Lumber Company had agreed and of the plaintiff's remedy in the proceeding is to have secured to it the right to cut and remove the timber mentioned in the first agreement, in accordance with the terms thereof, and to an account for timber bought under that agreement that has been appro With this modification of the decree it is affirmed. |