Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-16

road by = deed containing the follow.
ms ,reservations to wit: .eThe grantoiri
reserves to. himself, his heirs and as.i
signes, the right to an overhead street
crossing at such point northerly of the
Portland and Ogdensburg location. as
ne, ms helrs or assignes may designate.
suils"ie 'or loot passengers and teams,
10 10 vi request constructed and al
ways maintained by the grantees.
thelr successors and assgnes so far as
concerns the property herein con-
Veyed, the obligation to do which is
imposed upon the said grantees, their
successors or assignes, by the accep.
lance of this deed"
The tract described in this deed is
one hundred feet in width and is
bounded on the east by the westerly
line Of the location of the Maine Gems,
t1al Railroad. But the grantnr still re-
tained ute to the remaining parts of
the original tract, one lying on the west
side OF ana adjoining the strip convey,
co 10 the defendant by the deed in
question, and the other situated on the
east side ot and adjoining the location
OF the Maine Central Railroad. The
plaintiff corporation is successor in
title to the two last ramed tracts of
lana, and to all rights secured by the
reservation above quoted from the deed
TO the defendant. Thus it appears that
the Maine Central location lies between
the tract described in the defendants
deed on the west side and land owned
by the plaintiff on the east side.
= appears from the testimony of
clFll engineer that an overhead street
crossing suitable for foot passengers
and teams across the strip of land con-
Veyed to the defendant, must be 102k
feet long and 23 feet high, and if built
20 feet wide in accordance with the res
olution of The city council respecting
new streets, the cost of such a struc-
turc would be fairly estimated at SIS
600. The witness expressed the opinion
however, that q bridge 80 feet wide
would be suitable and sufficient in that
place for any travel that might be ex-
Dected to so over it. But with the ap-
propriate reduction in the estimate Of
$4,000, required by this difference in
width, it is obvious that the expense of
such structure so feet in width would
still be very large. He further states
that in his opinion such a bridge would
only a source Of annoyance by reason
of the fact that it might cbstruct sig
nails in the yard, and in case of any de-
railment pier would naturally aggra-
waite any damage that might happen.
1t is conceded by the plaintiff that
such an overhead bridge extending on.
~ across the 100 feet tract conveyed to
the defendant and terminating in the
air % feet above the pavement, at the
westerly line Of the Maine Central loca-
ton, would De a useless structure; but
it is cortended that such bridge
would not be a suitable overhead street
crossing such as was contemplated by
the parties and described in the reser.
walton in the deed. The plaintiff con-
tends that the defendant must be pre-.
sumed to have had knowledge of the
grantors ownership of the tracts of
land on both sides of the strip conveyed
and that in making the reservation in
the deed the parties must have con.
templaled the construction of an over
head crossing which would afford CONS
munication from one of these tracts of
land to the other over both the Maine
Central and the Boston and Maine To-
cations. 1t is urged that any other con,
struction of the contract would defeat
the purpose for which the reservation
was made.
This statement of the situation has
the merit of plausibility, but the sound
ness of the argument must be tested
by reference to the terms of the reser-
walton itself. The "grantor reserves
the right to an overhead street crossing
suitable for foot passengers and
teams, to be upon request constructed,
and always maintained by the gram
tees, so far rs concerns the property
herein conveyed Here in addition to
the general rule that a reservation in
deed relates only 20 the land thereby
conveyed. tnis reservation in express
terms limits the liability of the defend
ant to the land conveyed by the deed.
Assuring that the location Of 4 public
street was not contemplated by the
parties and that this was an undertake
ing on the part of the defendant tol
erect an overhead crossing, as pri-
tCuntniurd on Page TWeIve.)