US SUPREME COURT DECISIONS

Plaintiff (below) contracted with defendant street railway company to convey to it a right of way through her land and to pay five hundred dollars in five years, it to construct extension over such right of way and operate same, running cars at certain designated hours. The right of way was conveyed, the note given, the extension constructed and operated for several years, after which the railroad company ceased and refused to run its cars at the times designated, whereupon, her note being then overdue and unpaid, plaintiff demanded the removal of the tracks, which was done. In an action to recover damages for breach of contract, the trial court instructed the jury that the measure of damages was the excess, if any, in the market value of the land at the time the defendant entirely ceased to run its cars upon that part of the line which extended to and through the plaintiff's land with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing so to run in the future, over the market value of the said land at the same time without any cars running on said part of said line and without any expectation that they would ever run thereon.

Held that the instruction was not sufficiently guarded, and was erroneous. That what might have been made by selling the land at a value enhanced by the operation of the extension in perpetuity was too dependent on uncertain contingencies to justify peremptorily instructing the jury that such anticipated gains were probable, and contemplated consequences of the breach.

This was an action brought in the Supreme Court of the District of Columbia, August 8, 1894, to recover damages for alleged breach of contract. Plaintiff, on April 4, 1889, being the owner of a tract of land in the District of Columbia, containing about twenty-two acres (with her husband, since deceased), entered into an agreement with the Eckington & Soldiers' Home Railway Company which recited:

"Whereas the said parties of the first part, being desirous of securing an extension of the Eckington & Soldiers' Home Railway from the corner of Third and T Streets northeast extended, to the east line of Lincoln Avenue in the District of Columbia, through and along

Page 191 U. S. 104

the following streets, to-wit: West on T Street to Second Street east extended, thence north on the line of said Second Street extended to V Street extended cast in a right line, and thence west on the line of said V Street so extended to the east line of Lincoln Avenue, and whereas the said party of the second part has agreed to extend said railway to said Lincoln Avenue by the route aforesaid, upon certain conditions hereinafter mentioned;"

therefore, the McDevitts agreed in consideration of the premises "and of the covenants hereafter mentioned, to be kept and performed" by the railway company, to sell, grant, and convey to it, its successors and assigns,

"a right of way, sixty feet in width, for the use of the said party of the second part, its successors and assigns forever, through and along the following land belonging to the said Florence McDevitt,"

described as

"beginning at the southeast corner of the lands of said Florence McDevitt, adjoining the property of George Truesdell known as Eckington, and in the line of Second Street east extended northwardly in a right line, and extending thence with uniform width thirty feet on each side of the center of said Second Street extended, to a line fifteen feet south of the north line of said V Street extended, and thence westerly with the same width on each side of the center of said V Street extended, to the east line of Lincoln Avenue;"

also to pay to the railway company five hundred dollars five years from the date of the agreement, with interest, to be evidenced by a promissory note. But that the grant was subject to certain "conditions" to-wit, that work on the extension should be commenced on or before May 1, 1889, and completed on or before October 1, 1889; that the grades should be as described: that the material removed in grading should be delivered on the lands of the McDevitts as directed by them; that the excavation should not exceed twenty feet in width at bottom and sixty feet at top, and that

"after said extension is completed and open for traffic, a car shall be run thereon to Lincoln Avenue at least once in thirty minutes between 7.30 A.M. and 6 P.M., and at least once an hour to 9 P.M., and one car at 11 P.M. "

Page 191 U. S. 105

The extension was completed in the manner and within the time prescribed, and opened to traffic, and the five hundred dollars note was given. On December 27, 1889, a deed was executed and delivered to the company by Mr. and Mrs. McDevitt, in form an indenture, but signed and sealed by the McDevitts alone. This conveyed the right of way to the company, "its successors and assigns forever," with covenants of warranty and further assurance, and it also recited a covenant on the company's part that the cars should be run as described in the contract.

The extension was operated from 1889 to May or June, 1893, when the night cars were taken off. Thereupon, and on June 26, 1893, Mrs. McDevitt filed her bill for specific performance, to which the company set up in its answer, among other things, that the extension had always been a source of great loss, especially in operating at night, and that

"the present management of the road, having been advised that their right to operate said extension over the line of proposed streets without authority from Congress was very doubtful, deemed it wise to suspend such operation until the question could be definitely settled."

July 9, 1894, the bill was dismissed but "without prejudice to the right of complainant to resort to such remedy at law as she may be advised." About that time and prior to July 25, 1894, the railway company ceased to operate the extension altogether, and it was testified that the attorney of the company, on its behalf, "refused to do anything in the way of carrying out the contract." On the last named day, Mrs. McDevitt notified the company in writing to forthwith remove its tracks from the premises, and that she should bring an action for breach of contract. The tracks were accordingly removed. In the meantime, the five hundred dollars note had matured and was not paid.

The evidence tended to show that Mrs. McDevitt had caused a map of a proposed subdivision of the land to be made, but that this had not been recorded, and that nothing had been chanrobles.com-red

Page 191 U. S. 106

done in the way of preparing the tract for subdivision and sale by grading; that no streets had been opened through it except as effected by the action of the railroad company; that the excavations for the railway tracks were what would be Second and V Streets, to which extent plaintiff would be relieved from grading. Evidence was introduced of sales by Mrs. McDevitt of four parcels of the land prior to the removal of the tracks, and tending to show the value of the land with and without the railroad in operation through it. Also that the business depression of 1893 caused declines in value, and rendered real estate in the vicinity of this property unsaleable until after 1894.

Among other instructions the court gave the following:

"The jury are instructed that the measure of damages in this case is the excess (if the jury find from the evidence that there was such excess) in the market value of the land at the time that the defendant ceased entirely to run its cars upon that part of its line which extended to and through the plaintiff's land, with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing to so run in the future, over the market value of the same land at the same time without any cars running on said part of said line, and without any expectation that they would ever run thereon."

To the giving of which defendant objected and duly preserved an exception.

The jury found a verdict in favor of plaintiff for $15,000, and, motions in arrest and for a new trial having been made and overruled, judgment was entered thereon, which was affirmed by the court of appeals of the District, 18 App.D.C. 497, and this writ of error thereupon sued out.

The railway company was a corporation created by an act of Congress approved June 19, 1888, 25 Stat.190, c. 419,

"with authority to construct and lay down a single or double track railway, with the necessary switches, turnouts, and other mechanical devices and sewer connections necessary to operate the same by horse, cable, or electric power, in the District of

Page 191 U. S. 107

Columbia, through and along the following avenues, streets, and highways"

(describing them), and also a branch as described. The railway was to be laid in the center of the avenues and streets as near as might be, and, in the event of a change of grade of any of the streets, avenues, or roads occupied, it was made the duty of the company at its own expense, to change its railroad so as to conform to such new grade. The company was to run cars as often as the public convenience might require, in accordance with a timetable or schedule which was to be approved by the commissioners of the District, and was to construct such ticket offices, passenger rooms, etc. at such points on its line as the Commissioners might approve. The government and direction of the affairs of the company were vested in a board of nine directors, who were to choose officers as designated. Congress reserved the right to alter, amend, or repeal the act at any time.

By an Act approved April 30, 1890, 26 Stat. 77, c. 172, amending the charter, the company was authorized to extend its tracks through and along certain streets named, which provided

"and also beginning at the present terminus of its cemetery branch on the east side of Lincoln Avenue, and thence northerly along Lincoln Avenue to a point opposite the entrance to Glenwood Cemetery."

By an Act approved July 5, 1892, 27 Stat. 65, c. 143, the charter was further amended by authorizing the extension of tracks, and providing

"that the tracks of this company on Lincoln Avenue shall be taken up within thirty days from the passage of this act, and the roadway shall be restored to public uses in such manner as the commissioners of the District of Columbia shall direct. "

Page 191 U. S. 111