Dawson v. Western Maryland R. Co.

• Citation: 68 A. 301,107 Md. 70
• Parties: DAWSON et al. v. WESTERN MARYLAND R. CO.
• Decision Date: 03 December 1907
• Court: Court of Appeals of Maryland

68 A. 301

107 Md. 70

DAWSON et al. v. WESTERN MARYLAND R. CO.

Court of Appeals of Maryland

December 3, 1907

Appeal from Circuit Court, Washington County, in Equity; M. L Keedy, Judge.

Suit by Roy C. Dawson and others against the Western Maryland Railroad Company. From a decree sustaining a demurrer and dismissing the bill, complainants appeal. Affirmed.

Argued before BRISCOE, BOYD, BURKE, SCHMUCKER, and ROGERS, JJ.

Charles D. Wagaman, for appellants.

Wm Kealhofer and Benjamin A. Richmond, for appellee.

BOYD C.J.

This is an appeal from a decree sustaining a demurrer, and dismissing the bill of complaint filed by the appellants. In 1835 Jonathan Rowland and wife and Kelly Thomas and wife conveyed to the Chesapeake & Ohio Canal Company a tract of land near Hancock, Washington county. The deed recites that "Whereas the Chesapeake & Ohio Canal is intended to pass through the lands of the said Jonathan Rowland and Kelly Thomas, who have contracted and agreed to sell and convey to the said company such portions or quantity thereof as may be covered, used, occupied, or required by the said canal, or any of its necessary works or appendages, and to carry into full effect the said contract and agreement," they were willing to execute the deed. It is then stated that "in consideration of the premises, and in consideration also and upon condition that the said Chesapeake & Ohio Canal Company shall within the limits of the land hereinafter conveyed make, construct, and establish a basin connected with the said canal, and also a roadway and road culvert leading from the turnpike road under the canal to the Potomac river, and also in consideration of the benefit which will result to them, the said Jonathan and Kelly, as owners of said land, by cutting the said canal through and erecting the said work upon the said land, and also in further consideration of the sum of one dollar," the grantors granted, etc., the tract of land, which is described by metes and bounds.

The circuit court for Washington county authorized Messers. Hugh L. Bond, Jr., and Benjamin A. Richmond, as special trustees, to make sale of certain properties, rights, etc., of the canal company to the appellee, and under that authority they conveyed to it, by deed dated March 9, 1905, a portion of the land mentioned in the Rowland deed, including a part of the basin which had been constructed by the canal company, in pursuance of the provisions in the Rowland deed. The appellee constructed its railroad over and through the basin, and this bill was filed by the appellants, who claimed by mesne conveyances the Rowland property, adjoining the basin. The bill prays (1) for specific performance; that the railroad company be decreed to restore the basin and maintain the same as it formerly existed; and (2) that it be enjoined from hindering, obstructing, and interfering with the uses and benefits of the basin by the complainants, as they were enjoyed by them, and those under whom they claim, from the time of the construction of the basin, until the filling in of the same, and for other relief that we need not now mention. It alleges that the canal company constructed the canal through the land conveyed by the Rowland deed, and for the benefit of the land retained by Rowland constructed a basin, connecting with and opening into the canal, and that Rowland erected upon the land retained by him, and along the basin, a large warehouse and mill about the year 1835, and from that time until the grievances complained of "the said basin was used by the successive owners of said warehouse and mill, as an outlet and highway for the shipping and receiving of merchandise bought and sold in the business conducted at said warehouse and mill; for the transportation of coal and other fuel used in supplying said mill, and for such other useful and beneficial purposes incident to the business there carried on." It also alleges that the complainants became the owners of the warehouse and mill property, by virtue of certain conveyances referred to. It does not show what interest Kelly Thomas had in the property, or what became of his interest, but in 1842 the real estate of Jonathan Rowland was sold by a trustee, including what was described as "Lot No. 1, being the warehouse and ground attached to Jacob Snively, for the sum of $875."

The appellee demurred to the bill, and assigned a number of reasons therefor. Without stating them in full, the main grounds relied on are (a) that the Rowland deed did not contain a covenant which runs with the land, or which created an easement in favor of the adjoining land, which passed as an appurtenance thereto unto the appellants; and (b) that the alleged covenant was ultra vires of the canal company. It may be well to first dispose of some questions about which there can be no serious controversy in this state.

1. The acceptance of a deed poll cannot have the effect in this state of binding a grantee as a covenantor. It is said in 8 Am. & Eng. Ency. of Law, 65, in speaking of the exceptions made in New York and New Jersey to the general rule, that in order that a provision be binding as a covenant it must be under the seal of the party by whom it is to be performed, "But this exception has been justly criticised as erroneous in principle, and will be found to be unsupported by the authority of any adjudged cases, except those rendered in the states above mentioned which have adopted them. It may safely be stated as the general rule that mutual covenants cannot arise out of a deed poll." As the canal company neither signed nor sealed this deed, there would seem to be no doubt that under the authorities in this state there was no covenant by the canal company. 1 Poe, § 144; Stabler v. Cowman, 7 Gill & J. 284; W. Md. R. R. Co. v.

Orendorff, 37 Md. 334; State, Use, etc., v. Humbird, 54 Md. 327.

2. In addition to what we have just said, it is clear there was no covenant running with the land. In Lynn v. Mt. Savage Iron Co., 34 Md. 603, this court adopted the first two resolutions in Spencer's Case, 5 Coke, 16, and the principles there announced are still accepted in this state as correct. What is spoken of by the appellants as "a covenant" in the Rowland deed referred to things not in esse, and there is nothing that could be construed either as a covenant with the grantors and their assigns, or by the canal company for itself and its assigns. So whatever may be the rights of the appellants, they have no standing in court on the theory that this is a covenant running with the land, and as the Lynn Case, in our judgment, conclusively disposes of that question, we will not further discuss it.

3. Before passing on what we regard as the most important questions in the case, we will briefly consider the grounds of demurrer which rely on the provision in the deed for a basin being ultra vires. It will be conceded that the appellants have no right to some relief included in the prayers of their bill. For example, there is nothing in the deed which can be construed to bind the canal company to furnish the complainants with water for their mill and warehouse, or other improvements they have on their property adjoining the basin, but in passing on this subject, we must be careful not to confound the right to have the basin, with the method of using it. We can see no reason why the company could not have bound itself to make a basin along the canal, just as a railroad company can bind itself to erect a depot at a particular place, and there would seem to be no doubt about the latter. See 26 Am. & Eng. Ency. of Law, 500; 10 Ibid, 1079; 18 Ibid, 567. A basin connected with a canal may be just as necessary and useful for loading and unloading boats as a station or siding is for a railroad. Unless the canal be wider at points where boats are to be loaded and unloaded than it ordinarily is, it might obstruct navigation to so use it. So, , although it be conceded that some of the uses of the basin, made by the complainants and those under whom they claim, cannot be sustained, we are of the opinion that it was not ultra vires for the canal company to contract or agree to construct a basin on part of the land acquired by it by the Rowland deed, as a part of the consideration of the land purchased.

4. Having reached the conclusions above announced, are the complainants entitled to any relief sought by this bill? In passing on that question, we must determine not only whether the railroad company, as assignee of the canal company, could have been held to such responsibility to the grantors as the canal company could have been under the Rowland deed, but also whether the appellants, as present owners of what we will call the warehouse property, are entitled to relief even if the railroad company would have been liable to the original grantors. We are of the opinion that the first inquiry must be answered in the affirmative, notwithstanding there was no covenant running with the land, on the principle alluded to in Lynn's Case, supra. After saying that the covenants then in question did not run with or adhere to the railroad of the Mt. Savage Iron Co., so as to bind it in the hands of the assignee, the court said: "It is true, if any attempt were made by assignee of the Mount Savage Iron Company to use and apply the wharves and other improvements on the land of the complainants, in a manner and to a purpose different from that intended, a court of equity would restrain such improper use and appropriation. In such case, the question would be, not whether the covenant ran with the land, but whether the party should be allowed to use and appropriate the land in a manner wholly at variance with the contract entered into by its assignor, and with notice of which it...