The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-03-22

as an extinguishment Of these condi-
tions and restrictions, and gave the
defendant the free use OF the land at
the railroad crossing, for any neces-
sary purpose connected Herewith. 50
long as the limit Of three tracks in
width Is not exceeded: and cite, in
of Boston, 15l Mass, 6s5; Trustees Of
Columbia College VS.. Thacher. 81 N.
y, 311; Orne vs. F'riedenburg. 143 Pa.
437, and numerous other cases. This
question Is treated at length in foot.
note to Ladd VS.. City of Boston. 2l
am. st. Rep. 4S4: and undoubtedly 1t
Is the rule. as there stated, that "a
covenant. condition, or agreement, In
deed Of conveyance will not be en-
forced In equity. where such changes
have taken place, since the deed was
executed. as to render specific perform
ance OF the covenant ineQuitable." AS.
where enforcement of the contract
would impose great hardship upon the
DEFENDANT and be of little benefit to
Thatcher. infra.
But the case before us Is not a grant
of land with a restriction as to its use:
1t Is grant to the New York and Erie
Railroad company, and It's successors,
or a right of way over. and at certain
height above, the land Of the grantor.
What was not granted remained in the
grantor. The grantor does not reserve,
to itself and its SUCCESSORS, the right to
pass with its boats, ETC., under the
bridge to be constructed by the
grantee; 1t reserves nothing-respect-
Ing the matter In contention-out OF
what Is granted. but the right to con-
meet with the grantees railroad. Moth
Ing beneath a point seventeen feet
above the bed of the canal, was in
cluded in the grant; and we concluded
that the Canal company and Its sue
cessors in title have the right to use
this land beneath the bridge-includ-
Ing the space which defendant filled,
for any lawful purpose which Is not
detrimental to the bridge or to its use.
PLAINTIFFS REMEDY.
As to plaintiffs remedy at law, ETC.;
Proceeding upon the assumption that
the plaintiff has no lawful right to
construct the proposed railroad. we
fail to see how the act of the defend
ant. in filling under the bridge. occa-
sions irreparable injury to the plaintiff,
and why compensation for the injury
cannot he recovered in a common law
action. 1t Is not case where the
damages are estimable only by con-
lecture. There Is nothing to show that
this land is, in itself, of any special
value or that it is appropriate for any
particular use. other than for plain
tiff's contemplated railroad; and we
can see nothing to prevent the owner
of the land from showing how, and to
what extent, 1t is damaged by this
filling and from recovering such dam
ages-up to the limit of the value of
the property before the trespass was
committed.
We are unable to see whv this rem
edy is not complete and adequate.
1t is claimed by the defendant that
the filling was done for the sole pur-
pose Of strengthening it's bridge and
making it safe for the heavy traffic
over it: and. that it was done under
the belief that it was infringing no
right in so doing. If it's operations
had ended with the filing. we might
adopt this view of the matter. But,
considering this work In connection
with the subsequent act Of the defend
ant in hastily constructing a switch
across the canal in utter disregard of
the Injunction order. which had been
previously served, leads to the con-
clusion that the prime motive of the
defendant, in the premises, was to OBJ
struct and hinder the plaintiff in its
operations respecting the location and
construction Of it's projected railroad,
regardless of the defendants belief in
its legal right to do this filling. The
guise under which the defendant con-
structed this switch is too transpar-
ent to conceal it's identity. 1t Is true
the defendants division superintend-
ent. who did the work, was permitted
by us (and, doubtless. improperly so)
to say for whom he did 1t. But there
Is no evidence in the case Of the corr
porate existence Of any such body as
the Delaware and Southern railroad;
no evidence that the work was author
lied by any one, other than the de-
fendant. and it was done by the EN-.
ployes of the defendant. under the d.
rection of it's superintendent.
AsCERTAINING DAMAGES.
1t may be said that the damages for
the construction Of the switch may be
ascertained and compensated in the
same way as those for the filling. But
the circumstances. under which this
latter work was done, are entirely diff
ferent, and are such that we should
not permit the act to pass unrebuked.
quired to undo what it has done in ap-
parent contempt of the order of the
court: and, in view of the disposition
manifested by this latter proceeding,
we think the defendant should also be
enjoined from any further illegal acts
in the premises. and be required to pay
the costs in the case.
Since the final hearing Of the case.
counsel for the defendant have called
our attention to the case of North
Shore Railroad Company VS.. Pittsburg,
Fort Wayne and Chicago Railway, 19a
Pa, GAL, holding that a court Of equity
has no jurisdiction where the title to
land is involved. Doubtless it is the
rule that when there are material
facts in dispute between the parties
respecting the title to land, equity has
no Jurisdiction.
But in the present case there are no
questions of fact in dispute relating to
the title: and If the question We're tc
be settled in a common law action, the
court must declare the rights of the
parties, as in the present case. But
were it otherwise, it is too late to raise
this question. as the case in 1893 Pa,
cited by counsel, holds.
In accordance with these views we
make the following order and decree:
This case having been heard on bill
answer, replication evidence and argu-
ment of counsel. after due considera-
tion Of the questions involved in the
issue. Now. March 10. 1900. 1t is or
dered, adjudged and decreed, that
the preliminary injunction heretofore
awarded be, and the same is. amended
or modified so as to enioin and re-
strain the defendant, the Erie Rail-
road company, it's agents. servants and
employees. from depositing material OF
any kind upOn, and from any inter.
ference with the land known as the
Delaware and Hudson canal, and the
strip Of land fifteen feet in width on
either side thereof. formerly owned by
pany and situated in the county OF
Pike and state of Pennsylvania. And
1t is further ordered that the said Erie
Railroad company within ten days