this deed that the said corporation shall erect, make, and keep up all necessary fences between the lands of the grantor and the land taken for said railroad. And it is further agreed by and between the said parties to this deed, and the said corporation by the acceptance of this deed do covenant and agree to and with the said grantor, for themselves, their successors and assigns, that the said grantor and his family shall have and enjoy the right of free passage on and over said railroad in the cars of said corporation, their successors and assigns, as long as the land and appurtenances herein before described shall continue to be used as a railroad or for railroad purposes under the charter of said corporation."

It further appears from the evidence that in 1836 John C. Dodge had nine sons living with him; that in 1854 or 1855 he left this commonwealth, and did not return to it, and died in January, 1866; that the plaintiff's father, a son of John C. Dodge, was living with him in 1836, and continued to live with him from that time until about a year after his own marriage in 1846; that he left the commonwealth in 1850, and returned to it in 1885 or 1886, and now resides here.

In regard to the plaintiff, the testimony shows that she was born in 1854 or 1855 in the state of Pennsylvania; that when she was a child she lived for some time in the family of her grandfather after he left this commonwealth; and that she returned here with her father in 1885 or 1886, and has since lived with him.

The evidence was somewhat conflicting on the question whether the defendant has by its acts recognized the plaintiff as a person entitled to ride free over its road. It does appear that when she was a child she occasionally went over the road, when accompanied by her father or mother, and was allowed to do so; and that, since she came of age, passes had been occasionally given to her, she claiming the right to have them, but, as she states in her brief, "usually on obJection by the officer of the company." On this state of the evidence, we need not consider how far the defendant would be bound by what the plaintiff contends is the practical construction put upon the deed by the officers of the defendant. corporation. We find nothing in the evidence to show conclusively that what was accorded to her after she came of age was other than as a favor.

Meaning of

We pass, therefore, to the consideration of the construction of the deed. The word "family" has several meanings. Its primary meaning is the collective body of persons who live in one house, and under one head or management. Its secondary meaning is those who are of the same lineage, or descend from one common progenitor.

family.

Unless the context manifests a different intention, the word "family" is usually construed in its primary sense. In King v. Darlington, 4 Term R. 797, under the settlement act of 8 & 9 Wm. III, chap. 30, which provided for the granting of a certificate to a poor person who wished to remove from his own parish to another, and that the latter parish should "be obliged to receive and provide for the person mentioned in the certificate, together with his or her family," it was held that the certificate did not extend to a grandchild of the person receiving it, who lived with his father, and not with his grandfather. Lord KENYON, C. J., said: "In common parlance, the family consists of those who live under the same roof with the pater familias,-those who form (if I may use the expression) his fireside. But when they branch out, and become the heads of new establishments, they cease to be part of the father's family." See, also, Oystead v. Shed, 13 Mass. 520; Bowditch v. Andrew, 8 Allen (Mass.) 339; Poor v. Humboldt Ins. Co., 125 Mass. 274: Bates v. Dewson, 128 Mass. 334; Bradlee v. Andrews, 137 Mass. 50; Phelps v. Phelps, 143 Mass. 570.

The plaintiff, however, contends that, the words, "so long as the land and appurtenances hereinbefore described shall continue to be used as a railroad, or for railroad purposes, under the charter of said corporation," imply perpetual succession, and must necessarily include all the descendants of John C.

No implica tion of perpetual succession.

Dodge.

But we are of opinion that these words are words of limitation of the grant, and not words extending the meaning of the word "family." By the charter of the defendant corporation, the commonwealth reserved the right, at any time after 20 years from the opening for use of the road, to purchase of the corporation its railroad, and its franchise, property, and privileges. St. 1831, chap. 56, § 12. The words "under the charter of the corporation were therefore necessary to limit the agreement to carry to the time the corporation might have the power to use the land for railroad purposes.

So, too, the words "used for railroad purposes" were a necessary and proper limitation of the contract to carry. If the location of the road were changed, and the land conveyed by Dodge should revert to him, the parties would naturally provide that the contract to carry should be at an end.

Other contingencies might also happen. By St. 1831, chap. 81, approved March 11, 1831, the charter of the defendant corporation could be repealed at the pleasure of the legis lature; its franchise might be forfeited for misuser or nonuser, or it might be surrendered.

66

All these considerations show that the words in question were words of limitation, and did not extend the word family" so as to include the descendants of John C. Dodge to the remotest generation. We are of opinion, therefore, that the plaintiff, after she ceased to be a member of her grandfather's household, was not entitled to a free pass over the road of the defendant as one of his family.

Decree dismissing the bill affirmed.

Agreements for Free Pass Over Railroad in Consideration of Right of Way. -See Pennsylvania Co. v. Erie & P. R. Co. (Pa.) 29 Am. & Eng. R. Cas. 549. Martin v. New York etc. R. Co. (N. J.) 12 Am. & Eng. R. Cas. 448. Same-Road Changing Hands.-In Eddy v. Hinnant (Tex. Nov. 29, 1891) 18 S. W. Rep. 562, it appeared that land for right of way was conveyed to a railroad company in consideration, among other things, of free passage for plaintiff at all times over the road. The conveyance provided for a forfeiture on failure to comply with any condition. The road changed hands, but without any agreement in regard to plaintiff's having a pass. It was held that, though defendant furnished a pass for a while, plaintiff could not recover damages from it for failure to continue the pass; plaintiff's right of action being against the company, to whom the conveyance was originally made. The court said: "If it be admitted that the East Line Company sold and conveyed its railroad and other property to the Missouri, Kansas & Texas Company as far as it was in the power of the one to buy or the other to sell, yet, in our opinion, it does not follow that the plaintiff could recover in this case. The contract made by his brother with the East Line Company, in so far as it stipulated for a free passage for him, inured to his benefit, and under the rule of decision in this state he had a right of action for its breach against the company with whom it was made. But, in order to show a right of action in the present case, it was necessary for the plaintiff to prove not only that the Missouri, Kansas & Texas Company bought the East Line Railroad, but also that it assumed the obligations of the East Line Company, or at least assumed to perform the particular contract upon which the action in this case is based. lf A. sell B. a tract of land upon which a vendor's lien exists in favor of C., the land may be subjected to the payment of the debt; but B. is not liable upon the contract for the purchase money, unless in his contract with A, he has assumed to pay it. Nor would any recognition of the promise of A. to pay C. the purchase money, or any part payment upon it, make him liable personally upon it. And so with the Missouri, Kansas & Texas Railroad Company and its receivers in this case. They could respect the contract of the East Line & Red River Railroad Company as long as they desired, but they were not bound to perform it. It is true that by the failure to perform they may have forfeited the title to the right of way and to the other property conveyed by B. C. Hinnant and his wife to the East Line Company; stil they were not responsible in damages for the failure to carry it out. On the other hand, the East Line Company, even if it had the power to sell its road, could not by a sale divest itself of its obligations upon the contract made with B. C. Hinnant and wife for the right of way through his premises. For a breach of the contract B. C. Hinnant would have a_right either to insist upon the forfeiture or to sue the East Line Company for damages; and for a breach of the contract as to him the plaintiff is entitled to his action against the latter company, but not against the receivers of the Missouri, Kansas & Texas Company. The judgment is reversed, and the cause remanded."

WHITE et al.

V.

NEW YORK & NEW ENGLAND R. CO.

(Massachusetts Supreme Judicial Court, Mar. 31, 1892.)

Right of Way-Construction of Deed-Reservation of Passway.-A conveyance to a railroad company of a strip of land already occupied by it, such strip dividing the land of the grantor into two tracts, the only access to the larger of which was by a passway over the smaller tract and the railroad, the deed "reserving the passway at grade over such railroad where now made," construed to mean that it was the intention of the parties to annex the right of passing to the larger tract as a perpetual easement, the language used being sufficient for the purpose.

Same-Estoppel to Deny Grantor's Title.-A railroad company which elects to take a deed from a land owner granting it a strip of land on which its road is constructed, and to hold under such deed, is estopped to deny that such owner had at least such an interest in the land conveyed to it that he could carve out of it a passway over such strip of land and railroad for perpetual benefit to the land which he kept.

REPORT from Norfolk Superior Court.

In 1848 the Norfolk County Railroad Company, defendant's grantor, located its road across certain land belonging to Emmons Partridge. The road, as thus located, divided the land into tracts containing about 4 and 33 acres, respectively. The former adjoined a highway, but the only lawful means of access to the latter was by a passway over the smaller tract and the railroad. On January 3, 1850, Emmons Partridge, in consideration of $450, conveyed to the Norfolk County Railroad Company the strip already appropriated by it, together with the right to use the land for a railroad, "hereby releasing all claim for damages for making, maintaining, and using said railroad, reserving the passway at grade over said railroad where now made." This passway had been used before the location of the road, and, without objection from the companies, was used by Partridge and his grantees until 1889, when defendant took up the planks of the crossing, and built fences across the way. In 1865 Partridge conveyed the land on both sides of the railroad to Lyman D. Ware, who in 1879 entered into an indenture with defendant, for the purpose of defining the boundary lines of the defendant's strip of land, in which it is stipulated that nothing herein contained, however, is to be construed * * * to cut off or obstruct the existing passway at grade enjoyed by said Ware, being the same reserved in the deed

made by Emmons Partridge to the Norfolk County Railroad Company, dated January 3, 1850." On August 2, 1881, Lyman D. Ware conveyed to the New York & New England Railroad Company, to form a part of the strip of land aforesaid, a narrow strip of land lying along the southerly side of the railroad, and being part of the smaller lot now owned by the plaintiff, lying south of the railroad, by a deed which contained, at the end of the description, and just before the habendum, the following words: "Nothing in this deed is to be construed as cutting off any grade crossings, culvert, or water-course that I now have across or under said railroad." On November 9, 1885, Lyman D. Ware conveyed the two lots above described, with all the privileges and appurtenances thereto belonging, to plaintiff Isabella White, by warranty deed.

D. E. Ware and Jas. Hewins, for plaintiffs.
R. D. Weston Smith, for defendant.

Use of passway annexed ment right.

as a perma

MORTON, J.-In view of the facts in this case, we think that the deed from Partridge to the Norfolk County Railroad Company operated to except the passageway for the benefit of and as appurtenant to the larger tract, and that it passed with that to the plaintiff. The defendant does not claim that any importance is to be attached to the fact that the word "reserving " was used instead of "excepting." It insists, more broadly, that, by the terms of the reservation, the passageway was limited to Partridge for his life; or, if that is not so, that the railroad company, having by its location acquired the abso lute right to use the tracts for a railroad, all that remained in Partridge was the fee, out of which no way could be excepted; and that Partridge could create a perpetual easement only by a reservation in the nature of an implied grant, in which case the word "heirs" was necessary, and its omission was fatal. We think it is evident, from the situation of the land and the surrounding circumstances and those attending the giving of the deed, that it was the intention of the parties that the passageway should be annexed as a perpetual right to the larger tract. It was clear that the larger tract would be wholly inaccessible, unless Partridge and his successors in title were to have the right to use this in some other way. The way had been used before the railroad was laid out. use was continued without objection after the railroad was located. No petition for the assessment of damages nor application for a crossing was ever presented to the county commissioners. The consideration named in the deed was $450, and the deed purported to convey the right to maintain

Its