Linthicum v. Washington, B. & A. Electric R. Co., Inc.
| Decision Date | 02 December 1914 |
| Docket Number | 1. |
| Citation | 92 A. 917,124 Md. 263 |
| Parties | LINTHICUM et al. v. WASHINGTON, B. & A. ELECTRIC R. CO., Inc. |
| Court | Maryland Court of Appeals |
Rehearing Denied Jan. 20, 1915.
Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.
Bill by Seth Hance Linthicum and others against the Washington Baltimore & Annapolis Electric Railroad Company Incorporated. From a decree dismissing the bill, complainants appeal. Reversed and remanded, with directions.
S. S Field, of Baltimore, for appellants. George Weems Williams and Frank Gosnell, both of Baltimore, for appellee.
The bill of complaint which was filed in this case contained four prayers for relief. the first was for the correction of the record of a plat, constituting a part of a deed dated March 15, 1907, and the propriety of such correction was conceded by the answer; the second was to require the specific performance of a covenant contained in the deed of March 15 1907; the third for compensation to the plaintiffs for the violation of the covenant; and the fourth for general relief.
The material facts in the case are that: The Baltimore & Annapolis Short Line Railroad, which will hereinafter be referred to for the sake of convenience as the "Short Line," was, prior to the 15th of March, 1907, operating an electric railroad between Baltimore and Annapolis, and its route in part was along and over a right of way which had been acquired from the plaintiffs, or their predecessors in title. In the year 1906, and early part of 1907, the construction of an electric railway between the cities of Baltimore and Washington and Annapolis was begun by a corporation which had been formed for that purpose, bearing the name of the Washington, Baltimore & Annapolis Electric Railway Company. The route to be followed by this road as laid out by the engineers, involved a double crossing of the tracks of the Short Line, as they existed at that time. Negotiations were entered into between the Washington, Baltimore & Annapolis Railway Company and certain members of the Linthicum family, which culminated in certain conveyances hearing date March 15, 1907. The effect of these was to shift the location of the Short Line tracks a little to the south and east of the projected route of the Washington, Baltimore & Annapolis Railway Company over land which was acquired from the Linthicum family, thus enabling the Washington, Baltimore & Annapolis Railway Company, partly over the former right of way of the Short Line and certain additional land acquired from the Linthicums, to construct a route avoiding a crossing of railway tracks by one road over the other. This arrangement was consummated by two deeds; one a conveyance from Laura E. Linthicum, W. Hampton, M. Delmah, and Seth Hance Linthicum to the Terminal Real Estate Company, of the land for the right of way to be used and occupied by the Short Line under its relocation; and the other from the same grantors to the Washington, Baltimore & Annapolis Railway Company of the additional land needed by that corporation for the construction of its railway. This deed was executed for an expressed consideration of $1,450, and the performance of the covenants and conditions contained in the deed, the two most important of which related to crossings and the establishment of a platform station. The covenant with regard to the crossings was that the railroad company was "to immediately construct and maintain three crossings of not less than 20 feet on the surface over its right of way and over the Baltimore & Annapolis Short Line Railway at the places indicated on the plat hereto attached and crossing said right of way on the property hereby conveyed and on the property conveyed by the parties of the first part to the Terminal Real Estate Company of Baltimore City by deed of even date herewith, with easy approaches thereto of not more than 4 per cent. grade and with a roadbed of not less than 20 feet wide, in good condition." In the deed of the same date from the same grantors to the Terminal Real Estate Company the grantors reserved "to themselves, their heirs and assigns, over the described lot a private crossing 20 feet wide at the point shown upon said plat," referring to the plat attached to the deed to the Washington, Baltimore & Annapolis Railway Company. The rights, and, of course, restrictions upon those rights, so granted to the Terminal Real Estate Company passed by conveyance from it to the Short Line.
The Washington, Baltimore & Annapolis Electric Railway Company became insolvent, and was directed to be sold under a decree of the Circuit Court of the United States for the District of Maryland. At this sale the property was purchased on behalf of a corporation bearing the name of the Washington, Baltimore & Annapolis Railroad Company, a corporation having practically the same executive officers as the insolvent railway company, but with some changes of stockholders and bondholders from those of the railway company.
By an agreement made between Wade Hampton and Seth Hance Linthicum and either the railway or railroad company, of the three crossings covenanted for in the deed of March 15, 1907, two were consolidated to make one crossing 40 feet in width, in place of two of 20 feet each, and the third crossing has never been constructed by either the railway or railroad company. It is for the specific performance of the covenant in its relation to this third crossing that this present bill was filed, with the alternate prayer for an award of compensation should the court refuse a decree for specific performance.
The Short Line was not made a party to this proceeding, and the defendant urges this omission as a defense to the present action. This contention is closely connected with another, viz., the covenant contained in the deed is not a covenant running with the land, and that, by reason of the sale of the railway company's assets, the merely personal covenant of the railway company is not binding upon the railroad company, and that therefore the plaintiffs have no enforceable right against the defendant as to its own right of way, nor can they require of it the construction of a crossing over the line of another company which is not a party to the proceeding. As to the latter proposition, the legal position is that, under the doctrine in Spencer's Case, 5 Coke, 16, and which has been recognized and adopted as the law in most jurisdictions in this country, a covenant to run with the land must have relation to something already in existence, and that, where it relates to something to be done in the future, it is a personal covenant merely, and not a covenant running with the land. It is undoubtedly true that in the strict, technical sense the covenant contained in the deed from the Linthicums to the railway company was not a covenant running with the land, but as was said in the case of Wood v. Stehrer, 119 Md. 143, 86 A. 128:
"A vendor may impose restrictions on land conveyed by him, for the benefit of his remaining land, in such a manner as to be binding, not only on the vendee, but on his assigns, even though they are not, strictly speaking, covenants running with the land."
And to the same effect were the decisions in Worthington v. Lee, 61 Md. 533; Newbold v. Peabody, 70 Md. 495, 17 A. 372, 3 L. R. A. 579; Russell v. Zimmerman, 121 Md. 328, 341, 88 A. 337.
The same rule is stated in Lewis on Eminent Domain, § 477, and sustained by the authorities there cited, when that author says:
"Agreements by a railroad company to build crossings or to locate and build a depot or to do other things for the benefit of the grantor may be specifically enforced."
And in section 478 the author says:
"Deeds and contracts for rights of way to railroad companies are assets, and pass to the grantee or mortgagee of such companies, but subject to such burdens and conditions as are contained therein."
In view of the weight of authority, it cannot now be held that the covenant between the Linthicums and the Washington, Baltimore & Annapolis Railway Company is not obligatory upon its successor, the railroad company.
Nor is there greater force in the contention as to the omission to make the Short Line a party. The entire transaction of March 15, 1907, was one arranged by the Washington, Baltimore & Annapolis Railway Company for the purpose of facilitating the construction of its line. The deed to the terminal company made an express reservation of a private crossing, which was binding upon its assigns, and therefore binding upon the Short Line, and the obligation imposed by the deed to the Washington, Baltimore & Annapolis Railway Company, being likewise binding upon its successor, remains a subsisting obligation until performed or released by agreement of the parties, or the satisfaction of an award of compensation for nonperformance. The rule applicable here is that laid down in Joy v. St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843, and May v. LeClaire, 11 Wall. 217, 20 L.Ed. 50.
The lower court dismissed the bill in this case practically upon two grounds: The uncertainty of the contract; and the public service character of the railroad company. With neither of these conclusions is this court able to agree. There is a well-recognized...
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