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and use the land for a railroad, and released the company from all" damages for making, maintaining, and using said railroad." It would seem as if the whole matter had been settled by the giving and the taking of this deed. Nothing indicates that Partridge intended to place himself in a position less favorable than he would have occupied if he had petitioned for the assessment of his damages and for a crossing; and we think the reasonable inference is that both parties expected and intended the right to be a perpetual one.

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We think, also, that this intention is effectually carried out by the deed. The railroad company could have relied upon its location, and the rights acquired under it, leaving Partridge to his petition for damages and a crossing. It did not see fit to do that, but it elected owner's title. to take a deed from him with full covenants of seisin and warranty. As between Partridge and it and their respective successors in title, it must be deemed to have elected to hold under that deed, and not under its location, and it cannot set up any claim under its location inconsistent with the rights given or reserved in the deed. It cannot use both as its advantage may decide. Watson v. Watson, 128 Mass. 152; Hyde . Baldwin, 17 Pick. (Mass.) 308; Smith v. Smith, 14 Gray, (Mass.) 532; Hubbell v. Warren, 8 Allen (Mass.) 173, 182; Fitch v. Baldwin, 17 Johns. (N. Y.), 161. Having elected to take the deed and to hold under it, the railroad company was estopped to deny that Partridge had at least such an interest in the land conveyed to it that he could carve out of it the right of way in question for the perpetual benefit of the land which he kept. The defendant does not question that an exception may be created by words of reservation, and it is clear that it may be done. Wood v. Boyd, 145 Mass. 176; Dennis v. Wilson, 107 Mass. 592, 593; Bowen v. Conner, 6 Cush. (Mass.) 132; Winthrop v. Fairbanks, 41 Me. 307; Smith v. Ladd, Id. 314; Herrick v. Marshall, 66 Me. 435. Whether, in a given case, the language shall be construed to create an exception or reservation will depend upon the situation of the property and the surrounding circumstances, in the absence of a declaration in the deed. by the parties of their intention as to the nature of a way. Dennis v. Wilson, supra.

As already stated, the only reasonable construction in the present case would seem to be that it was the intention of the parties to annex the right of passing to the larger tract as a perpetual easement, and, the language of the deed being sufficient for that purpose, it follows that the passageway is to be so regarded. This view of the effect of the deed from Partridge to the Norfolk County Railroad Company renders

it unnecessary to consider the effect of the deed and indenture from Mr. Ware to the defendant, or the acts of the defendant. and its predecessor, in maintaining the crossing for so many years.

Judgment on the verdict.

Grant of Right of Way Through Farm-Construction of Deed.-Where the owner of a large farm in which is a small garden immediately behind his house, grants to a railroad company a right of way across his farm "provided the road runs at back of garden,” inserting such a condition in the deed on account of a preliminary survey which had made the road run through the garden, the railroad company has no right to run its line through such garden.

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The court said: "It has been insisted by learned counsel that the grammatical construction of these words "at back of garden" mean within and near the back line of the garden. The preposition "at" is used, according to lexicographers, to denote near approach; nearness of proximity. Its primary idea may be conceded to be nearness. So we may admit that it more generally means "within," than " without," in consequence of this idea of nearness. But it is sometimes used to denote clusion," rather than "inclusion." It was so construed in the case of Canal Co. v. Key, 3 Cranch, (C. C.) 604, where one provision of the charter under construction required that the second section of the canal should begin "at" the termination of the first. Then it was impossible that "at" should mean "in." So from the context, or from the circumstances surrounding the execution of the paper in which it is contained, its meaning may plainly imply an exclusion, rather than an inclusion, of the place referred to. Again, it may be used so ambiguously as to require explanation. One, for instance, may be at a place, and yet not in it, and yet the preposition would serve in either event. It was held, in the case of a covenant to deliver tobacco "at a warehouse, that the obligee was not bound to deliver it "in "the warehouse. Duckham v. Smith, 5 T. B. Mon. (Ky.) 374. The connection in which the word is used furnishes the best definition. This is well illustrated in numerous cases cited in 1 Am. & Eng. Enc. Law, pp. 890-893. The proviso is not that the road is to be constructed" at the garden. This, in the absence of everything else, might imply that it was to be constructed within the garden. If the clause had read that it was to be located "back of the garden," it would clearly exclude all idea of a location within the garden. The clause is in neither of these terms, but is a combination of both. It is to run "at back" of garden. This may mean within and at back line, or without and back of, according to other circumstances. It becomes necessary to look at the situation of the parties. The garden was in close proximity to the residence. It was a small square of 100 feet. The preliminary location run the line through this garden. Under these circumstances Beeler required that the words "at back of garden" should be inserted before he would sign. In the light of this situation it is impossible to suppose that Beeler intended to make it a condition that the road should be within the garden." Knoxville, C. G. & L. R. Co. v, Beeler, (Tenn. 1891) 18 S. W. Rep. 391.

Release of Right of Way-What Covered Thereby. -In McMinn v. Pittsburgh M. & Y. R. Co. (Pa. Jan. 4, 1892) 23 Atl. Rep. 325, it was held that a release to a railroad company of a right of way, in which the company is discharged also from all damages incurred, or to be incurred, by the location, construction, or operation of the road, does not cover injuries resulting from the negligence of the company in constructing or operating the road. The court said: It needs no argument to show that a release of

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the right of way to a railroad company does not cover injuries resulting from the negligence of the company either in the construction, maintenance, or operation of the road. The cases of Hoffeditz v. Southern Pa. R. & Min. Co., 129 Pa. St. 264, 38 Am. & Eng. R. Cas, 654, and Updegrove v. Pennsylvania S. V. R. Co., 132 Pa. St. 540, do not help the appellant. In the one first cited the drain complained of was constructed prior to the execution of the release, and in the other the claim for damages was made by a property owner on the lower side of the railroad embankment, on account of the surface water having been collected and thrown from the culvert upon his land below. We there said: "These ditches, and this culvert, and this discharge of water are the result, the necessary result, of the construction of the road." Such is not the case here. If the culvert had been properly constructed and kept open, the injury of which the plaintiff complains would not have occurred.'

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Reservation in Deed by Railroad Company of a Right of Way-What Covered Thereby. Where the Northern Pacific Railroad Company conveyed a portion of the land granted to it by congress to a private person, "reserving and excepting therefrom, however, a strip extending through the same *of the width of 400 feet,—that is, 200 feet on each side of the center line of the Northern Pacific Railroad, or any of its branches, -to be used for right of way, * * * in case the line of said railroad, or any of its branches, has been or shall be located on or over * said described premises," held, that such reservation covered one such strip only, and that the railroad company could not claim a right of way, both for its main line and a branch line, over the tract so conveyed under such reservation. Held, further, that where a separate corporation entered upon and located and constructed a line of railroad across said tract, and subsequently leased the same to the Northern Pacific Railroad Company, which latter company operated the same as a branch of its main line, that, whatever interest in or right to the right of way of such road the latter company had, it obtained and held under its lease, and not under the reservation. Dunstan v. Northern Pacific R. Co., (N. Dak. June 17, 1891) 49 N. W. Rep. 426.

Covenant Running with Land under Grant to Railroad Company-Agree. ment to Maintain Crossing.-A provision in a deed of a right of way to a railroad company that the company shall maintain a fence on each side of said right of way, and put in and maintain a farm crossing and cattle guards, is a covenant running with the land, and is binding on the grantee, and on a purchaser of the railroad under foreclosure of a mortgage executed before the land was conveyed, since in taking title to the land it must assume the burdens running with it. Lake Erie & W. R. Co. v. Priest, (Ind. April 29, 1892) 31 N. E. Rep. 77.

Grant of Right of Way with Right to Take Additional Land Necessary.— Where a right of way is granted, "with right to use such additional land as may be necessary for the construction and maintenance" of the road, the company is bound only to use ordinary care in constructing its road; and the necessity for taking additional land is to be determined by ordinary care. Gulf, C. & S. F. R. Co. v. Richards, (Tex. Feb. 2, 1892), 18 S. W. Rep. 611.

Contract Authorizing Railroad Across Land to Reach Quarries.-A contract giving to the lessees of plaintiff's quarries a right to lay a railroad track or switch across plaintiffs' land to reach the quarries in order to transport their products to market, held not to authorize the laying across plaintiffs' land of a railroad track, part of a long line of an ordinary commercial railroad for general business, not going to the quarries, but passing at a distance. Shoemaker v. Cedar Rapids, I. F. & N. W. R. Co., 45 Minn. 366.

HUMPHREYS

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RICHMOND & MECKLENBURG R. Co.

(Virginia Supreme Court of Appeals, Dec. 3, 1891.)

Right of Way-Delivery of Contract on Condition-Parol Evidence. -An agreement by a land owner to deed to a railroad company a right of way in consideration of the construction of the road, may be shown by parol to have been delivered to the president of the company, on condition that no use should be made of it unless necessary to assure the building of the road, or unless the board of directors should make compensation for the right of way.

Same-Unauthorized Delivery of Contract—Right to Recover Damages.— After the completion of the road, although the conditions had not been fulfilled, the president turned the contract over to the right of way agent who had knowledge of such conditions. Held, that the contract was void, and the owner might recover the damages to his land.

SUIT to enjoin an action at law, to have a contract declared void, and for other relief. From a decree for defendant, complainant appeals.

W. W. Henry and Finch & Atkins, for appellant.

T. N. Williams and B. B. Munford, for appellee.

RICHARDSON, J.-This is an appeal from a decree of the circuit court of Mecklenburg county, rendered on the 15th day of April, 1889, in the suit in chancery therein pending, wherein T. F. Humphreys was plaintiff, and the Richmond & Mecklenburg Railroad Company was defendant. The case briefly outlined is as follows:

Case stated.

In the year 1863, T. F. Humphreys purchased a tract of land in the county of Mecklenburg, on Roanoke river, near the town of Clarksville, of one Joseph G. Snead. Subsequent to this purchase, in a suit brought to enforce a prior lien, the same land was sold on the 5th of July, 1870, under a decree of court, and was bought in by said Humphreys, and he thereby became the owner in fee of said land. Prior to the purchase by Humphreys, to wit, in the year 1860, the Roanoke Valley Railroad Company had entered upon said land without taking the steps required by law for the purpose, and, without any title to same, had erected thereon earthworks and masonry for the purposes of its railway, and in the construction of said earthworks and masonry took or occupied and seriously damaged several acres of valuable river bottom land belonging to said tract.

The Roanoke Valley Railroad Company became insolvent, and did not complete any part of its proposed line of railway, and some time in the year 1880 the Richmond & Mecklenburg Railroad Company became the owner of the property, rights, and franchises of said Roanoke Valley Railroad Company. Thereupon the Richmond & Mecklenburg Railroad Company entered into an agreement with the Richmond & West Point Railway & Warehouse Company, through the Richmond & Danville Railroad Company, which controlled said Richmond & West Point Railway & Warehouse Company, to build the proposed Richmond & Mecklenburg Railroad from Charlottesville to Keysville, in the county of Charlotte, and a point on the Richmond & Danville Railroad, for a certain amount of the first mortgage bonds of the Richmond & Mecklenburg Railroad Company; but upon the following conditions: (1) That the Richmond & Mecklenburg Railroad Company should acquire a perfect title to all the franchises, property, rights of way, and roadbed of the old Roanoke Valley Railroad Company, the same having been mortgaged and in the hands of trustees; the same to be purchased from said trustees for $300,000, payable in the paid up capital stock of the Richmond & Mecklenburg Railroad Company. (2) That the said trustees should transfer and assign to the said terminal and warehouse company the said. $300,000 of paid up stock of the Richmond & Mecklenburg Railroad Company.

This arrangement having been effected, and the conditions aforesaid complied with, thereupon P. F. Howard was employed by the Richmond & Mecklenburg Railroad Company to acquire for it the rights of way along the line of the proposed road. In furtherance of that object, he and John B. McPhail, the president of the Richmond & Mecklenburg Railroad Company, approached T. F. Humphreys, and requested him to donate the right of way through his said land; but Humphreys declined to do so, saying he had already subscribed $1,000 to the capital stock of said company, which was as much as he was able to give it. It seems, however, to have been thought by McPhail that the refusal of Humphreys to donate the right of way through his land, if known, would be injurious to the scheme for securing the donation of the right of way from others along the line. He therefore called on Humphreys again, and proposed a special arrangement. Land owners along the line having been asked to sign a general paper binding them, respectively, to donate the right of way through their lands, Humphreys was asked to sign a separate paper, of similar import, which was to be held by McPhail, and not to be delivered to the

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