Willson v. Winchester & P.R. Co.

• Decision Date: 06 February 1900
• Docket Number: 306.
• Citation: 99 F. 642
• Parties: WILLSON et al. v. WINCHESTER & P. R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

99 F. 642

WILLSON et al. v. WINCHESTER & P. R. CO. et al.

No. 306.

United States Court of Appeals, Fourth Circuit.

February 6, 1900

This is an appeal from a decree of the circuit court of the United States for the district of West Virginia, entered on the 17th of October, 1898 (82 F. 15), overruling the motion of the complainants to remand the cause to the circuit court of Jefferson county, in said state, from which it had been removed into the federal court, and sustaining a demurrer to complainants' bill, and dismissing the same. The object of the suit is to have specific performance of a deed filed as Exhibit A with the bill, entered into on the 13th of February, 1850, between the Winchester & Potomac Railroad Company of the one part, and John A. Thomson of the other, to the following effect:

'This indenture, made and dated the 13th day of February, in the year eighteen hundred and fifty, between the Winchester &amp Potomac Railroad Company of the one part, and Jno. A. Thomson of the other, witnesses, an agreement between said parties as follows, to wit: Whereas, the road or tract of said company is so located as to pass through the lands of the said Thomson, in the county of Jefferson; and whereas, in consideration that said Thomson relinquished to said company the right of way through his said lands, and waived all claim to damages, the said company, on its part, agreed to fix and establish, at a suitable place on said land, a depot or stopping place for putting down and taking up passengers freight, etc.; it being further agreed that the necessary buildings, platform, and other fixtures and arrangements for that purpose should be erected and kept up by said Thomson at his own expense, subject to proper stipulations and conditions as to the charges for receiving and forwarding storage, etc., and that said company should construct the side track and switches necessary for said depot; and whereas, said agreement has accordingly been in operation for many years; but has never heretofore been reduced to form or put in writing: Now, the design of this instrument is to certify and preserve the proof of such agreement, the terms of which are more plainly stated as follows, to wit: The said John A. Thomson hereby releases all claim to damages for the passage of said road through his said lands, and guaranties and secures to said company the said right of way (as long as said company or said road shall exist). (2) In consideration thereof the said company will continue to observe and use the depot and stopping place now established at Summit Point, and commonly called 'Thomson's Depot,' as one of the company depots or stopping places. (3) That the company will not (unless compelled by law) establish any other depot or stopping place nearer to said Thomson than Cameron's on the north, and Wade's on the south. (4) That said company shall maintain or keep up at its own expense a proper side track and suitable switches as now established at said depot, or as the same may be modified by consent of said Thomson. But (5) said Thomson, on his part, at all times maintain and keep in good condition, at his own charge, all necessary and convenient buildings, platforms, fixtures, etc., for the reception, proper storage, accommodation, and delivery of passengers, produce, freight, etc., at said depot, and delivery of passengers, produce, freight, etc., at said depot, and that he shall keep a trustworthy and competent agent at the same; it being further agreed and understood that said Thomson, or his agent or assigns, shall be entitled to the commissions and depot charges made at said establishment, but that the said charges, commissions, etc., at said depot shall not at any time be increased beyond the rates now allowed and charged at said depot, except with the permission of said company. It is further agreed that the fence near said depot, which separates the railroad track from the county road, shall be maintained by said Thomson, but the said company shall pay the reasonable charges for keeping it up. In testimony of which the said John A. Thomson has heretofore set his hand and seal, and William L. Clark, president of said company, by direction of the directors of the same, both hereto affixed his hand and the seal of said company.

'John A. Thomson. (L.S.) 'Wm. L. Clark, President. (L.S.)'

The appellants claim under the said Thomson by successive alienations of his right in the property involved and his interest under said contract, alleging, among other things that the said railroad, extending from Harper's Ferry to Winchester, was built under a charter granted by the state of Virginia about the years 1831-32; that the same passed through the lands of the said Thomson for about a mile; that, pursuant to a verbal agreement entered into at the time of the construction of the road, the provisions of said deed of 1850 were carried out between said Thomson and said railroad; that the said Winchester & Potomac Railroad Company continued to operate said road until the year 1867, and carried out said contract and deed; that in said year it leased its said road and franchises to the Baltimore & Ohio Railroad Company for a period of 20 years from July 1, 1867; that the lessee continued to operate said road, and carry out the contract and deed with the said Thomson and those claiming under him, until the month of March, 1875, when they arbitrarily refused longer to carry out the same and use the depot mentioned in the contract, built by the said Thomson at Summit Point, and instead thereof, and in violation of the said agreement, established a depot or stopping place a quarter of a mile east or north of said Thomson's depot at Summit Point, where for several years it received and discharged passengers and freight carried by its trains, and that a few years after thus violating its undertaking established another stopping place or depot a few hundred yards west of said Thompson's depot, which is now the regular depot at Summit Point, and the only depot there used by...