Peden v. Chi., R. I. & P. Ry. Co.

• Decision Date: 07 December 1887
• Citation: 35 N.W. 424,73 Iowa 328
• Court: Iowa Supreme Court
• Parties: PEDEN v. CHICAGO, R. I. & P. RY. CO.

73 Iowa 328

35 N.W. 424

PEDEN

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

December 7, 1887.

Appeal from district court, Davis county.

On the fifteenth day of March, 1871, Joseph Peden executed a conveyance to the Chicago & Southwestern Railroad Company, whereby he conveyed a right of way across a tract of land then owned by him. The company soon afterwards constructed a railroad on the strip of land so conveyed to it. The consideration named in the conveyance is one dollar, and the instrument contains the following provision: “The water on the south-east side of the road to be made to run on same side of road, instead of through the cattle-guards.” The railroad was constructed in such manner through the premises that the surface water which collected on the south-east side of the track was conducted along that side to a creek, except in times of great rain-fall, when a portion of it flowed across the track, and spread over the lands on the other side. In 1875 the defendant purchased the railroad, and since that time has operated it. In 1878 Joseph Peden sold the land to plaintiff, James M. Peden. After defendant purchased the railroad, it constructed a wooden culvert through the embankment. It also opened the cattle-guard, which was originally so constructed that no water flowed through it. These openings afforded a passageway for the water which collected on the south-east side of the track, through which it flowed, and spread over the land on the opposite side. The openings were constructed before plaintiff purchased the land, but after his purchase defendant replaced the wooden culvert with one of much larger dimensions, which was built of stone. This action was brought for the recovery of damages for the injury which plaintiff alleges was done to his land and the growing crops thereon by the waters which flowed through said openings, after his purchase of the land. Plaintiff recovered a verdict and judgment, and defendant appealed.Thomas S. Wright and S. S. Caruthers, for appellant.

Payne & Eichelberger, for appellee.

REED, J.

1. Appellant claimed that the provision in the deed is a condition subsequent, and, being a condition in deed and not in law, the right to take advantage of the breach rests alone with him who created it, and the estate to which it attaches. But the district court ruled that the provision is an independent covenant. This ruling is correct. As conditions subsequent tend to destroy estates, they are not favored in law. They are always strictly construed. And if it is reasonably doubtful whether a provision in the conveyance was intended as a condition subsequent or a covenant, the breach of which may be compensated in damages, it will be held to be the latter. But looking at the language of the present provision, and the objects which the parties had in view in the whole transaction, we think there is no doubt but it was intended as a covenant, rather than a condition attached to the estate. There is nothing in the language made use of which indicates that it was the intention that the estate conveyed should revert on the failure of the grantee to do the thing stipulated for; nor was there anything in the circumstances of the transaction indicating that such was their intention. The railroad company sought to acquire the land for use in connection with other lands, as a right of way for a line of railroad hundreds of miles in length, and the grantor conveyed it to them for that purpose.

The thing stipulated for was to be done after the road should be constructed. But when that was done the land conveyed by the grant became a part of the road, and its forfeiture would involve a material change in the line of the road, which could only be accomplished by a great expenditure of money. Surely the parties had no such result in view when they inserted the provision in the deed. The provision is very different in its terms from the one involved in Close v. Railway Co., 64 Iowa, 149, 19 N. W. Rep. 886. In that case the conveyance was...