Alexandria & Wash R. R. Co. v. Chew

• Decision Date: 27 April 1876
• Court: Virginia Supreme Court
• Parties: ALEX. & WASH. R. R. CO. v. CHEW AND WIFE & als.

68 Va. 547

ALEX. & WASH. R. R. CO. v. CHEW AND WIFE & als.

Supreme Court of Appeals of Virginia.

April 27, 1876

By act of congress in 1808, the Washington & Alexandria Turnpike Co. was incorporated to construct a turnpike road from Alexandria to Washington, to be not less than thirty, nor more than one hundred feet wide. In 1809 A conveyed to the company a strip of land one hundred feet wide and three-fourths of a mile long, for the purpose of the road. And the company covenanted with A and his heirs, that said space of one hundred feet should be forever kept open and unobstructed as a public highway, and for no other purpose and should the route of said turnpike road be thereafter altered, or should it cease to be a public highway, the said property should immediately revert to A, his heirs and assigns. The company made a graveled track twenty feet wide in the centre of the strip, and on each side a summer road. By a statute of the state the company was authorized to sell any part of their work to the A. & W. R. R. Co., and the turnpike company conveyed to the railroad company the eastern half of their entire line; and a railroad track has been laid on the summer road occupying in all about eighteen feet on the east line, and leaving the graveled road and the western summer road unobstructed. This dealing with the road does not create a forfeiture under the deed of A, of the land conveyed by him, or any part of it.

This was an action of ejectment in the circuit court of the county of Alexandria, brought in November 1872 by Roger P. Chew and Louisa his wife, and others, heirs at law of Charles Alexander, Jr., deceased, against the Alexandria and Washington railroad company, to recover a strip of land fifty feet in width by about three quarters of a mile in length being the half of a section of land one hundred feet in width, conveyed by the said Alexander for the purposes of a highway. The cause came on to be tried in November 1872, when the facts appeared to be as follows:

By an act of the congress of the United States of April 21, 1808 (2 Statutes at Large 485), a company was incorporated for opening a turnpike road between the town of Alexandria and the city of Washington, both then in the District of Columbia, to be called the Washington and Alexandria turnpike company, the road to be not less than thirty feet and not more than one hundred feet in width.

The land for the road was to be acquired either by condemnation or purchase, as might be found necessary.

The company was duly organized, and the road built in conformity with the requirements of the charter.

A section of the road was built upon the hundred feet strip before mentioned, which had been conveyed to the company by Charles Alexander, Jr., by deed of July 4th, 1809.

By this deed the grantor conveyed the land to the turnpike company " to have and to hold * * * to them, the said president and directors, and their successors in office, as a public highway forever. In consideration of which said cession, the said president and directors, for themselves and their successors in office, hereby promise and agree to and with the said Charles Alexander, his heirs and assigns, that the said space of ground, one hundred feet wide, shall be forever kept open and unobstructed as a public highway, and for no other purpose whatsoever, without the consent of the said Alexander, his heirs and assigns, in writing first had and obtained; and also, that should the route of the said turnpike road be hereafter altered, or should it ever cease to be a public highway, the property shall thereupon immediately revert to the said Alexander, party to these presents, his heirs and assigns, in like manner as if this present indenture had never been made."

By an act of the general assembly of Virginia, of March 4, 1854, the turnpike company was authorized to sell any part of their work to the Alexandria and Washington railroad company; and on the 18th of April 1854 the turnpike company conveyed to the railroad company the eastern half of their entire road from Alexandria to Washington.

On the eastern half (fifty feet in width) thus acquired, the railroad company in 1855-'6 constructed and operated, and have ever since continued to operate, a railroad between the two cities.

The railroad track was of the usual width (eight feet), and was laid along the eastern side of the strip conveyed to the railroad company, at an average distance of ten feet from the east boundary of said strip, so that the track and the space to the east of it occupied together eighteen feet.

Before the railroad was built there was a gravelled way, about twenty feet in width, running through the middle of the hundred feet strip, and on either side was a summer road.

The railroad track occupied the summer road on the east side of the gravelled way, but did not at all infringe upon the latter, and, of course, did not infringe upon the summer road to the west of it.

The railroad track destroyed the east summer road for the purposes of travel in ordinary vehicles, leaving the gravelled way and the other summer road the same as before.

When the evidence had been introduced, the plaintiff and defendant asked for the following instructions:

If the jury shall believe from the evidence, that the plaintiffs are the heirs at law of Charles Alexander, Jr.; that he was the owner of the premises, fifty feet, described in the declaration; that the said Charles Alexander, Jr., did, by the deed bearing date on the 4th day of July, 1809, grant unto the defendant, the Alexandria and Washington Turnpike Company, to wit: 100 feet of ground, to be used as a public highway or a turnpike, of which 100 feet, fifty feet, the premises described in the declaration, constitute part; that by the conditions of that grant, the said Alexandria and Washington Turnpike Company bound themselves to use the said 100 feet for a public highway or turnpike, and for no other purpose; and that the said Alexandria and Washington Turnpike Company entered under that grant, and afterwards, to wit: by a deed bearing date on the 18th day of ____, 1855, did grant unto the Alexandria and Washington Railroad company, the said fifty feet for another purpose, to wit: to be used for constructing a railway; and that the defendant did construct and are now using the said fifty feet as a railway, and that the said fifty feet, for all practical purposes, has ceased to be used as a turnpike or public highway, then the plaintiffs are entitled to recover in this action.

Which instructions the court granted as prayed. The defendants prayed the court to instruct the jury, that upon the facts proved as aforesaid, the jury must find for the defendants. Which instructions the court refused.

The defendants, by their counsel, excepted to the ruling of the court by which the instructions prayed by the plaintiffs were granted, and also to the ruling of the court refusing the instructions prayed by the defendants.

There was a verdict and judgment for the plaintiffs; and on the application of the railroad company a supersedeas was allowed by this court.

Beach, for the appellant.

W. Arthur Taylor and John S. Chapman, for the appellees.

OPINION

STAPLES, J.

The alleged right of recovery in this case is founded upon a provision in the deed from Charles Alexander to the Washington and Alexandria turnpike company. That provision is as follows: " In consideration of which cession, the said president and directors for themselves, and their successors in office, hereby promise and agree that the said space of ground, one hundred feet wide, shall be forever kept open and unobstructed as a public highway, and for no other purpose whatever without the consent of the said Alexander his heirs and assigns, in writing first had and obtained; and also should the route of the said turnpike road be hereafter altered, or should it ever cease to...