Lockwood v. Ohio River R. Co.

• Decision Date: 09 July 1900
• Docket Number: 302.
• Citation: 103 F. 243
• Parties: LOCKWOOD v. OHIO RIVER R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

103 F. 243

LOCKWOOD v. OHIO RIVER R. CO. et al.

No. 302.

United States Court of Appeals, Fourth Circuit.

July 9, 1900

A charter was issued by the state of West Virginia on April 18 1881, to the Wheeling Parkersburg & Charleston Railway Company, for the purpose of constructing and operating a railroad from the city of Wheeling to a point at or near the city of Charleston, in the same state; the name of this company being afterwards changed, by proper proceedings, to the Ohio River Railroad Company. On April 10, 1882, the following agreement was entered into:

'This agreement, made and entered into this 10th day of April 1882, by and between Jesse Pugh, of the county of -- --, West Virginia, of the first part, and the Wheeling, Parkersburg &amp Charleston Railway Company, a corporation under the laws of West Virginia, of the second part, witnesseth that, whereas the said railroad company proposes to construct and build a road through the said county of Wood: Now, in consideration of the advantages which said road will be to the said party of the first part and to his property, and of the premises, and for the further consideration that the said railroad company agree to make and build a good roadway or crossing where the private road of said Ugh crosses said railroad, and also to put in or build cattle stops wherever said railroad crosses from one field to another; and, if said railroad company shall destroy any fruit trees during the construction of said road, shall pay for the same at the rate of ten dollars ($10) for each tree so destroyed, the said Jesse Pugh does hereby grant and convey unto the said Wheeling, Parkersburg & Charleston Railway Company the full and free right of way, of the width of fifty feet, with necessary ground for cuts and fills for the road for the said company, in and upon and through the lands of the said Pugh, on which he now resides, described substantially as follows. to wit: Being the line as surveyed by Engineer Wharton. But it is understood and made a part of this agreement that the said railroad company, in constructing said road, shall either build the said roadbed far enough from the gravel bank along and below which same runs, to keep the same from washing, or, in lieu thereof, shall protect the same with a wall, it being understood that the said gravel bank shall be undisturbed,-- which right of way is hereby granted and conveyed for construction, building, and use of the road of the said company; and the said Pugh hereby releases to the said company all damages which may in any way be sustained by reason of the construction or building of said company's road through the said land, or on account of the temporary use or occupancy or servants, during the construction of the said railway; and the said Pugh does hereby covenant and agree to execute and acknowledge in due form of law, when required by said company, a deed conveying to said company, in fee simple, the said land hereinbefore described. Witness the following signatures and seals.

Jesse Pugh. (Seal.)

'State of West Virginia, Wood County, to wit.

'I, Patrick V. Dolan, notary public of said county, do certify that Jesse Pugh, whose name is signed to the writing above, bearing date on the 13th day of April, 1882, this day acknowledged the same before me in my said county. Given under my hand this 2nd day of April, 1883.

'Patrick V. Dolan, Notary Public.

'It having been found necessary, in the construction of the railroad and in the protecting of the gravel banks spoken of, to destroy twelve fruit trees, the said Jesse Pugh consents to the same; and said railroad company have paid said Pugh the sum of ninety dollars, the receipt of which is hereby acknowledged, payment in full for said trees.

Jesse Pugh.

'State of West Virginia.

'Wood County Court Clerk's Office, January 5, 1884.

'The foregoing writing, bearing date April 13, 1882, with annexed certificate and receipt, was this day recorded in said office.

'Th. G. Smith, C. W. C. C.'

On March 5, 1888, Jesse Pugh and Hannah A., his wife, in consideration of the sum of $705, conveyed the entire tract of land, upon part of which the railroad was constructed, to Arias N. Pugh and Drucilla C. Pugh, his wife, who on the same day executed a deed of trust to H. C. Henderson to secure the payment of the purchase money, which deed of trust contained, also, certain covenants, which have no bearing on this controversy. After this date Jesse Pugh died, and A. N. Pugh and his wife, being then the owners in fee simple of the tract of land, entered into an agreement, May 31, 1898, with Stephen Lockwood, whereby the said tract of land was leased to Lockwood for the purpose of searching for and producing oil, gas, and other minerals. Under this agreement Lockwood went upon the lands so leased to him, bored for and discovered large deposits of petroleum oil and gas, and commenced producing the same. The wells drilled by Lockwood were adjacent to the right of way of the defendant railroad company. The Ohio River Railroad Company entered into an agreement with Samuel Logan, August 18, 1898, whereby it granted to Logan all the oil and gas in and under the real estate included within this right of way, lessor to receive one-eighth part or share of all the oil produced, and $50 per annum for each and every gas well drilled, on the premises therein described; and it being expressly stipulated in said agreement that 'the lessor does not warrant the title to the said premises in any respect whatever, but the said lessee drills and operates thereon entirely at his own expense and risk. ' Logan entered into possession of the premises under this agreement, and drilled wells upon the right of way, conducting the oil produced through the pipes belonging to the Eureka Pipe Company. Jesse Pugh, during his lifetime, and A. N. Pugh, since his death, paid taxes on the whole tract of land; and in 1898 the railroad company demanded of A. N. Pugh a conveyance in fee simple of the right of way above described, which was refused. In November, 1898, Stephen Lockwood filed his bill of complaint in the circuit court of the United States for the district of West Virginia against the Ohio River Railroad Company and Samuel Logan, setting forth the above facts, claiming that the railroad company acquired only an easement on said land, and as such had no right to the oil and gas and other minerals lying thereunder; that it was a corporation whose powers were limited to the building and operating of a railroad, and that it had no right to engage in any other business, and its contract with Logan was ultra vires; and that the well bored, being 15 feet from the eastern line of the complainant's land, would drain the oil from his land,-- and praying an injunction and the appointment of a receiver. The court below denied the application for the order of injunction, and refused to appoint a receiver as prayed for, being of opinion that the defendant company acquired an absolute title to the lands under the agreement of April, 1882, and from this decree the appellant has appealed.

James S. McCluer (J. G. McCluer, on the brief), for appellant.

H. P. Camden, for appellees.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

BRAWLEY District Judge, after stating the facts as above, .

This appeal requires us to give interpretation to the instrument of April 10, 1882, which in terms 'grants and conveys to the railway company the full and free right of way, of the width of 50 feet, with necessary grounds for cuts and fills for the road of said company in, upon and through the lands of Pugh, ' upon the line surveyed by the engineer of the company, 'which right of way is hereby granted and conveyed for the construction building, and use of the road of the said company. ' If it had ended here, there could be no doubt that it was intended to convey...