Opinion
02-05-1896
PENNSYLVANIA R. CO. et al. v. UNITED STATES PIPELINE CO. et al.
Allan H. Strong and Chas. Gummere, for complainants. Henry S. Harris find Joseph M. Roseberry, for defendants.
(Syllabus by the Court.)
Bill by the Pennsylvania Railroad Company and others against the United States Pipe-Line Company and others for specific performance. Decree for complainants.
Allan H. Strong and Chas. Gummere, for complainants.
Henry S. Harris find Joseph M. Roseberry, for defendants.
BIRD, V. C. The Pennsylvania Railroad Company, one of the complainants, is the lessee of all the franchises, rights, and interests of the Belvidere Delaware Railroad Company, the other complainant, and is in the undisputed possession of the road constructed by the latter company in the years 1854 and 1855, and from thence until now the road has been in constant operation. The defendant is a corporation under the laws of the state of Pennsylvania, and through the agency or instrumentality of one Breckinridge, who is also a party defendant, is about to lay pipes to conduct its oil from the state of Pennsylvania, under the surface of the earth, to tide water on the New Jersey coast. In order to complete the connection of its pipes, it is about to open a trench in the public highway over which the tracks of the complainant company are laid. The defendants have written consent of the township committee of the township through which the road runs to dig such trench within the line of the road, upon certain conditions, for the purpose of laying its pipes. The railroad company object to any interference with the premises in question by the pipe lines, and have filed this bill, asking for an injunction prohibiting the defendants from proceeding to effect any such purpose. The complainants first claimed title in fee simple to the premises in question by virtue of a deed of conveyance from one Thomas Lomason, subject only to the easement of the public road. The defendants answered, and set up title to the said premises in Breckinridge, one of the defendants, by virtue of several deeds of conveyance which passed said title from one William P. Robeson. Upon the hearing on the order to show cause why an injunction should not issue, the complainants produced the articles of agreement hereinafter set forth, entered into between the said William P. Robeson and one John M. Sherrod and the Belvidere Delaware Railroad Company, by Ashbel Welch its agent, in and by which the said Robeson and Sherrod agreed to convey certain lands, among which was the lot in question, to the Belvidere Delaware Railroad Company. The object of the bill being the restraint of the defendants from interfering with the premises in question by laying their pipe, it was believed that it was within the constant practice of the court to permit such amendments as would make the allegations harmonize with the proofs. The bill was amended accordingly. The complainants' chief reliance is upon the allegation in their amended bill that the equitable ownership of the fee, and the right of absolute control, of the soil, for all purposes, except the use of the surface for a public highway, is in them. They claim such equitable ownership by virtue of the agreement referred to, of which the following is a copy: "Articles of agreement entered into this twenty-fifth day of June, Anno Domini 1851, between William P. Robeson and John M. Sherrod, Esquires, of the town of Belvidere, in the county of Warren and state of New Jersey, and the Belvidere Delaware Railroad Company, by Ashbel Welch, an agent duly authorized by the board of directors. Said Robeson and Sherrod, for and in consideration of the sum of one dollar to be paid to each of them by said company, and in consideration of the benefits which the Belvidere Delaware Railroad, if constructed, will produce to their property, hereby agrees to convey in fee simple, each, so much of the land as belongs to himself separately, and, both, so much of the land they now hold in common, lying on the route of the said railroad, in the township of Oxford and county of Warren aforesaid, anywhere between the farm of William White (below Thomas Lomason's farm) and the land of John Hoff, Jr. (above Abraham McMurtrie's land), as may be sufficient for the construction of said railroad, with its ditches and appendages, and for procuring materials, reserving the timber on said land, also the buildings, and the following rights, to wit: The right of passing with teams or otherwise across the said railroad on the strip of land or lane lying between lands of Abraham McMurtrie, Jr., and John Hoff, Jr.; the right of crossing over said railroad, with teams or otherwise, at such points as shall be necessary for full and convenient access to their mills or other works erected or to be erected; also, the right of passing their shafts, belts, or contrivances for transmitting power from water wheels near the river to buildings above said railroad, through openings under the same, provided said railroad shall be constructed. And the said company agree to pay the said sum of money for said land, and to make crossings for teams or otherwise at such places as shall be necessary for the purposes of said Robeson and Sherrod, with good approaches to said crossings, and to make, when necessary, openings under their railroads for the passage of belts, shafts, or other contrivances for the transmission of power, and to pay the increased expense which said Robeson and Sherrodshall incur in constructing their water-power canal, over and above what would be the expense if said railroad had not interfered with the location of said water-power canal, and to remove all buildings on the route of said railroad through said land to a proper distance. This agreement shall apply to the lot now owned by Miss Allan Mowry, if purchased by any of the parties hereto. Witness our hands the day & year first above written. J. M. Sherrod. Wm. P. Robeson. Ashbel Welch, Agent Bel. Del. R. R. Co. Present, Martin Coryell." As the said agreement was executed in 1851, the Belvidere Delaware Railroad Company, lessors of the complainant, completed the construction of its road in the year 1855, and at once commenced the running of its trains over the route so constructed. This it continued until 1874, when it leased all its rights to the Pennsylvania Railroad Company, which has continued in the possession and actual use of said route until the present time. It is not disputed but that the former company took possession of the parcel of land in question by virtue of this agreement. The complainants claiming to have the equitable title under this agreement, they now seek the conveyance of the legal title from said Breckinridge, as well as an injunction protecting them, in such title, from said Breckinridge, who claims the right to lay the pipe in question by virtue of his legal title, and of an agreement entered into between him and the township authorities who have the supervision of the highways.
It is well settled that when a vendee enters into possession under an agreement for the title, and performs such agreement upon his part, he not only has the equitable title, but is entitled to a specific performance of such an agreement, whereby he shall have the legal title also. See Bridge Co. v. Vreeland, 4 N. J. Eq. 157, approved in Lawrence v. Lawrence, 21 N. J. Eq. 321, and many cases cited below. In Van Blarcom v. Kip, 26 N. J. Law, 351, 361, and cases cited, it plainly appears that protection in many cases will be afforded even at law. The possession in this case has continued full 40 years. There is no pretense but what such possession was not taken with the full knowledge of William P. Robeson the owner, or at least the owner of the undivided three-fourths part. He then lived at Belvidere, on the line of the railroad, and within two miles of the land in question. An embankment about 20 feet high was raised across this parcel, to secure the proper grade for the tracks of the railroad, which embankment was about 50 feet wide at the base and 20 at the top. The public road was spanned by a culvert or passageway 12 feet wide, supported by stone abutments. William P. Robeson died in 1864. Therefore, if he did not openly acknowledge the right of the railroad company to take possession and erect and maintain its structure, he acquiesced therein for at least nine years. And since his death no one claiming under him has raised any question respecting the title of the company, until the year 1895. This being the condition for all these years, under the cases cited, a court of equity would support the claim of the complainants, they having performed all the conditions upon their part to be performed, as against William P. Robeson, or any one claiming under him, except a bona fide purchaser.
Has the railroad company so performed its part of the agreement as to justify it in speaking to the conscience of a court of equity? Up to and at the time of entering and taking possession, there was but one condition for it to perform, and that was the payment of the one dollar consideration money. There is no evidence of actual payment. Counsel insists that the presumption is that payment was made, from the lapse of time. Doubtless, an action upon the part of William P. Robeson, or his legal representatives, would be controlled by the statute of limitations. I think that, when the other considerations named in the agreement are taken into the account, it will be quite convincing that the naming of the sum of one dollar to be paid was merely nominal, and more for the purpose of form than of any valuable significance. There are other stipulations in the agreement which the railroad company was under obligations to perform. In determining whether or not the company has complied with its undertakings in this behalf, so as to protect it in its claim of title, we must first learn whether the conditions have been created by the act of the other parties to the agreement which requires of the company such action upon its part as is stipulated for. The agreement shows that Robeson and Sherrod reserved, not only the timber and buildings, but also "the right of passing, with teams or otherwise, across the said railroad, on the strip of land or lane lying between the lands of Abraham McMurtrie, Jr., and John Hoff, Jr.; the right of crossing over said railroad, with teams or otherwise, at such points as shall be necessary for full and convenient access to their mills or other works, erected or to be erected; also, the right of passing their shafts, belts, or contrivances for the transmission of power; and to pay the increased expenses which said Robeson and Sherrod shall incur in constructing their water-power canal, over and above what would be the expense if said railroad had not interfered with the location of said water-power canal; and to remove all buildings on the route of said railroad through said land, to a proper distance." These are all important stipulations, and show what the real consideration for the engagement upon the part of Robeson and Sherrod was. The bill alleges performance of all that was required of the railroad company under the agreement. So far there has been no proof to show that any crossing has been requiredthat was not constructed. Nor does it appear that any buildings, mills, or other works, of any kind, have been constructed above the said railroad by either the said Robeson or said Sherrod, or any one claiming under them, to operate which it was necessary to construct flumes, canals, or other channels or communications, by water or otherwise, under said railroad, which, beyond question, the railroad company obligated itself to construct, or to pay the additional expense of construction because of the existence of said railroad. The consideration of this branch of the case brings us to the inducements which moved Robeson and Sherrod to execute this agreement. They were clearly other than the mere nominal payment of one dollar to each of them. They were increased opportunities for the development of their joint and several estates. It is clear that they are entitled to the improvements contemplated, within any reasonable time when their interests may prompt them to move for their construction after the conveyance. See Williams v. Hart, 116 Mass. 513. These things being so, it would certainly be highly inequitable for the court to emasculate the contract of its mutuality, and to say that, "Notwithstanding it is true you have constructed your road at great expense, relying upon your agreement, yet, as to this one parcel of land, you have no right or title other than that of a naked trespasser; and yet you will be obliged to perform all conditions stipulated in that agreement, when required so to do." This may be said of every other parcel of land included in this agreement.
But is the defendant Breckinridge a bona fide purchaser? The general rule undoubtedly is that where a purchaser by virtue of a written agreement enters into possession with the consent of the vendor, and performs his part of the agreement, and such possession is open, notorious, and unqualified, no person can claim title from his vendor, in disregard of such possession, and enjoy the benefits of a bona fide purchaser. The possession of such vendee is notice to all the world. And every person dealing with such property is chargeable with such notice as he might reasonably be expected to obtain upon inquiry of such vendee. One of the first cases upon this subject in our own state is that of Diehl v. Page, 3 N. J. Eq. 143, in which it was declared: "A party who purchases from one not in possession of the bargained premises cannot claim to be a bona ride purchaser without notice, for possession in another is notice sufficient to put the party on inquiry." The same principle was recognized in McCall v. Yard, 11 N. J. Eq. 58; in McDavit v. Pierrepont, 23 N. J. Eq. 43; and in Johns v. Norris, 27 N. J. Eq. 487, 488. And in Wanner v. Sisson, 29 N. J. Eq. 141, it was declared, "Possession by a man or his tenant is notice of the title, equitable as well as legal, under which he claims the property." In Cooke v. Watson, 30 N. J. Eq. 345, where partners who were the owners of certain real estate agreed to convey such real estate to a company, of which the partners were members, and such company went into possession of such real estate, and made improvements, but took no deed of conveyance, and a judgment was afterwards obtained against one of the partners, it was held that such judgment was not a lien upon the real estate so agreed to be conveyed. See, also, Purcell v. Enright, 31 N. J. Eq. 74; 2 White & T. Lead. Cas. Eq. 133; Water-Power Co. v. Veghte, 21 N. J. Eq. 463, 478; Williamson v. Brown, 15 N. Y. 354, 360; Turnpike Co. v. Conover, 34 N. J. Eq. 364. Where a purchaser of real estate takes title with a knowledge of such facts as deprive him of the rights of a bona fide purchaser, and which show that the equitable title is in another than his vendor, he holds the title for the equitable owner. Lamont v. Cheshire, 65 N. Y. 42; Morrison v. Wilson, 13 Cal. 494; Hoagland v. Latourette, 2 N. J. Eq. 254; Downing v. Risley, 15 N. J. Eq. 93; Haughwout v. Murphy, 22 N. J. Eq. 547. In Young v. Young, 45 N. J. Eq. 41, 16 Atl. 921, Chancellor McGill affirmed this doctrine. Pom. Cont. § 493. However technical these principles may be, when applied to certain isolated cases like the present, yet they are of such universal application, and appear to be so well fortified by both reason and authority, that they may well be considered as being as firmly established as any other rules respecting the rights of property. Hence, when the character of the possession and use is considered, one is not required to spend time to show that no person could treat respecting title to property in ignorance of such possession and use. It would seem, therefore, that no person claiming title by, from, or under William P. Robeson is entitled to protection, in a court of equity, as against the complainants.
Breckinridge having the legal title, if the complainants have the equity which they claim, it can only be asserted and maintained in this court; and, this court having jurisdiction, it is eminently proper, in a case like the present, that it should take all proper precautionary steps to protect the complainants in their property rights. The trespass which is threatened is a continuing one; it is a permanent appropriation of the property of the complainants to the defendants' own use; and this is increased in importance by the insistence that it is under the protection of the public authorities. Such application was made of the power of a court of equity in Sterling's Appeal, 111 Pa. St. 35, 2 Atl. 105. The court said that a gas company, "under its charter, has no right to lay its pipes upon the public road traversing the lands of a party objecting to the imposition of such additional servitude on his lands, and may be restrained by injunctionfrom so doing." The court said: "We are satisfied that the appellee has no more authority to do the acts complained of than any unincorporated association of individuals would have. It follows, therefore, that appellee is, at best, a trespasser on the public highway." So much stress was given to the slight additional burden which would be imposed by the mere use of the soil for the laying of the pipes and the transmission of oil, that it seems quite proper that I should use still further the language of the court in the Sterling Case, supra: "As owner of the land traversed by the public road, he has a right to use it, and the land on which it is located, for any purpose that will not impede or interfere with the public travel. By appropriating the land for the specific purpose of a common highway, the public acquires a mere right of passage, with the powers and privileges incident to such right. The fee still remains in the landowner, notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purposes of passing and repassing, and he may use the land for his own purposes in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passageways for water and other purposes, or appropriate the subjacent soil and minerals, if any, to any use he pleases, provided he does not interfere with the rights of the public. * * * Laying and maintaining a pipe line at the ordinary depth under the surface necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities when the land was appropriated for the purposes of a public road." These principles were expressed with equal emphasis in the New York court of appeals, in Gaslight Co. v. Calkins, 62 N. Y. 386, 388. In Goodson v. Richardson, 9 Ch. App. 221, 8 Eng. R. 835, the court said: "Where water pipes had, without the consent of the owner of the soil, been laid in the soil of a highway, an injunction to restrain the continuance of the pipes was granted; the owner of the soil not being left to his remedy at law, and not being required to establish his right at law. The facts that the soil under the highway was of no value to the owner, and that his motive for applying to the court was not connected with the enjoyment of his land, were held not to be reasons against the granting of the injunction." On the question of jurisdiction, see, also, Broome v. Telephone Co., 42 N. J. Eq. 141, 7 Atl. 851, and High, Inj. § 697. I do not think that the agreement of the township authorities with the defendant Breckinridge is of the slightest support, by way of defense. Whatever control the legislature has given to them over the highways of the state, it certainly has not conferred upon them the right to confer special favors upon strangers, as against the owners of the fee in such highways.
Upon the argument it was urged that the lapse of time in this case was such a manifestation of negligence as to bar the complainant from every claim to consideration in a court of equity, in support of which a great multitude of cases was cited. So far as I have been enabled to examine them, I do not find any which bear the slightest analogy to the case in hand, except that of Lawrence v. Lawrence, supra, which expressly cited and approved the case of Bridge Co. v. Vreeland, supra. In a case like the present, it seems to me that the negligence or delay, if any one be charged therewith, is chargeable to the vendor, and that, the longer the delay, the greater the equity in favor of the complainant, who has gone into possession, and, at enormous expense, constructed a public work of great magnitude. Nothing would be more inequitable than to allow the vendor to stand by for 40 years, witnessing such possession, improvements, and expenditure of money, and then to sustain him in an assertion of a claim of property against such vendee. Surely a second vendee, in such a case, is estopped by every equitable consideration. Nor is equity content with setting up a bar against an aggressor. In such case it will not only repel, but will affirmatively declare and maintain the rights of the first vendee. In the language of the chief justice in the case of Erie R. Co. v. Delaware, L. & W. R. Co., 21 N. J. Eq. 289, "Fair dealing and good conscience obviously required Robeson and Sherrod to assert their right at the outset, if it was designed ever to do so." If they, or either of them, ever intended to repudiate the agreement, or to resist the claims of the railroad company under that agreement, conscience and fair dealing required them to act with promptness. The chief justice again observes: "From the conduct of the complainants, the defendants could fairly infer that there was no intention to object to the course they were pursuing; and after action has been based on this fair presumption, and great expense has been incurred, it is altogether too late for opposition to be tolerated from the party so having acquiesced and encouraged. This is an equitable rule, which is applied to a great variety of cases." Fry, Spec. Perf. p. 426, § 738, thus states the rule: "Where a contract is substantially executed, and the complainant is in possession of the property, and has got the equitable estate, so that the object of his suit is only to clothe himself with the legal estate, time either will not run at all, as laches, to debar the plaintiff from his right, or it will be looked at less narrowly by the court; for the plaintiff has not been sleeping on his rights, but relying on his equitable title, without thinking it necessary to have his legal title perfected." In speaking of this rule, Prof. Pomeroy, in his work on Contracts (section 403), says, "The party who desires to maintain an objection founded uponthe other's laches must show himself, in the language of many judges, to have been 'ready, desirous, prompt, and eager.'" In Leaird v. Smith, 44 N. Y. 618, the court of appeals said: "Equity will sometimes refuse specific performance on the ground of laches and great delay, but not when the delay is by common consent, and has occasioned no injury to the party complaining." Prof. Pomeroy, in his work on Contracts (section 404), declares the doctrine to be as it is expressed by Fry, and adds that the vendee's right to relief, in case he has possession, "will not be cut off until the vendor places a limit to the lapse of time by a demand of payment at or before a specified day." This same learned author (section 404) further says: "Where the contract is substantially executed, the purchaser has obtained possession, and, of course, is vested with an equitable title, but the legal title is yet held by the vendor, the vendee's delay in bringing a suit to compel a conveyance, however long continued, will not defeat his remedy, of a specific performance, unless, perhaps, the situation of the vendor, and his relations to the land, have been so altered in the meantime that a specific execution of the agreement will be inequitable." In Shepheard v. Walker, L. R. 20 Eq. 659, a decree for specific performance was made, after 14 years, against a lessee who was in possession under an agreement for a lease. In Williams v. Lewis, 5 Leigh, 686, a delay from 1774 until 1822 did not bar the vendee's right to enforce a conveyance, he having been in possession during the whole period. See, also, Miller v. Bear, 3 Paige, 466; also, Pom. Cont. § 406.
It was said that this bill must fail for uncertainty as to the premises agreed to be conveyed. The agreement is that so much is to be conveyed as will be necessary for the road, its ditches, and appendages. If, at any time before the construction of the road, the rule as to uncertainty could be applied, there is no ground for its application, since the road has been constructed and maintained in the presence of the vendor for so many years. The bill not only sets out the contract, but expressly gives the width of the embankment over the premises in question. The complainants also produce in evidence a map on which the route is clearly delineated by courses and distances. With these allegations and this proof, it would seem that the objection, if it be worth serious consideration, is met by the case of Carskaddon v. Kennedy, 40 N. J. Eq. 259, which case, on page 278, provides for the settlement of boundaries by a master. I conclude that the right is with the complainants, and that they were justified in coming to this court for relief. I will advise a decree directing the specific performance of the contract according to the prayer of the bill, with costs.