Opinion of the Court.

MILLER V. THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY ET AL.

Acceptance of deed and entering into possession-Binds grantee, when-If grantee accepts benefits, he cannot reject burdens. (No. 13353-Decided October 14, 1913.)

ERROR to the Circuit Court of Lorain county.

Mr. John J. Sullivan and Messrs. D. J. & D. F. Nye, for plaintiff in error.

Mr. H. C. Johnson and Mr. S. H. West, for defendant in error.

BY THE COURT. In this case the circuit court found the following facts:

"First: The defendant, The Lake Shore & Michigan Southern Railway Company, was before the commencement of this action, organized by the consolidation of The Junction Railroad Company, and other railroad companies, and at the time of the commencement of this action, was existing under and by virtue of the laws of the state of Ohio, and owned and operated a railroad extending from Cleveland, Ohio, to Chicago, Illinois, which railroad passes through the village and township of Amherst, Lorain county, Ohio, and said defendant company has owned and operated said railroad continuously for more than thirty years last past.

"Second: That said Junction Railroad Company was incorporated under an act entitled, 'An act to incorporate the Junction Railroad Company'

Opinion of the Court.

enacted by the general assembly of the state of Ohio, on the 2nd day of March, A. D. 1846; that the 7th section of said act, provides as follows:

""Sec. 7. That the directors shall have power to determine the number and kind of tracks, turnouts, branches, carriages, conveyances, storehouses, depots and other fixtures and machinery, prescribe the mode of transportation, and have power to construct a single or double track railroad.'

"That there was no other provision in said act or any of the amendments thereto providing for the number of tracks that said railroad company might construct.

"Third: The plaintiff, during the years 1867, 1872 and 1873, acquired title to a farm consisting of about one hundred and twelve (112) acres of land situated in the township of Amherst, county of Lorain, and state of Ohio, and ever since said dates has been, and still is, the owner of said farm.

"Fourth: The said Junction Railroad Company, the predecessor of the defendant, The Lake Shore & Michigan Southern Railway Company, prior to 1867 procured from Frederick Onstine and Daniel Onstine the right to use for railroad purposes a right of way not to exceed one hundred (100) feet in width, over and across the land which was owned by the plaintiff, Joseph R. Miller, at the time of the commencement of this action, and prior to the year 1869 said railroad company had constructed a single main track over and along said right of way.

"Fifth: The defendant, The Lake Shore & Michigan Southern Railway Company, after the year 1869 and prior to the 3rd day of May, 1889,

Opinion of the Court.

constructed one additional main track and one side track over and along its right of way over the plaintiff's said land, so that on the 3rd day of May, 1889, said defendant railway company had two main tracks and one or more side tracks over and along its right of way across said plaintiff's said land, which said tracks extended in an easterly and westerly direction.

"Sixth: The highway leading past said plaintiff's said farm extended along the south side thereof about thirty (30) rods southerly and nearly parallel to the right of way of the defendant, The Lake Shore & Michigan Southern Railway Company, aforesaid, and the plaintiff's residence was, on the 3rd day of May, 1889, and still is situated on the north side of the said right of way of the defendant company and about thirty (30) feet north of the north line of said right of way; that at said last-named date and continuously thereafter until the present time, the said plaintiff's natural and most convenient means of access to his residence and farm buildings (which farm buildings were on the north side of said railroad track) was by a private way across his land and across the defendant's right of way and railroad tracks.

"Seventh: On the said 3rd day of May, 1889, the defendant railway company was desirous of purchasing from the plaintiff, a strip of land on the south side of its right of way for the purpose of constructing thereon other side tracks and at that time there was a proceeding pending in the probate court of Lorain county, Ohio, wherein the defendant herein, The Lake Shore & Michigan

Opinion of the Court.

Southern Railway Company, was plaintiff, and the plaintiff herein, Joseph R. Miller, was defendant, whereby the said defendant railway company sought to appropriate said strip of land. That for the purpose of settling said case and to induce the plaintiff herein, Joseph R. Miller, to convey said strip of land to said defendant, The Lake Shore & Michigan Southern Railway Company, the said railway company promised and agreed, among other things, that it would construct no more tracks on the north side of its main track as it then existed so long as said house was occupied as a dwelling house; and thereupon said entire agreement was put in writing and embodied in a deed given by said plaintiff herein to said defendant, The Lake Shore & Michigan Southern Railway Company, which said contract and deed is in words and figures following, to-wit:

""This indenture, made the 3rd day of May, in the year of our Lord, one thousand eight hundred and eighty-nine, between Joseph R. Miller and Helen A. Miller, his wife, of the township of Amherst, in the county of Lorain and state of Ohio, the grantors, and The Lake Shore & Michigan Southern Railway Company, the grantee,

"Witnesseth: That the said grantor, for and in consideration of the sum of one thousand ($1,000.00) dollars, lawful money, to him in hand paid by the said grantee at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said grantee, and to its

Opinion of the Court.

successors and assigns forever: All that certain piece or parcel of land, situate in the township of Amherst, county of Lorain, and state of Ohio and bounded and described as follows, to-wit:

66

'Being part of lots 98 and 3, in Amherst township, Lorain county, Ohio, and beginning in the south line of right of way of The Lake Shore & Michigan Southern Railway and in the west line of lands of Joseph R. Miller; thence southerly along said west line to a point 30 feet southerly from said right of way line, measured at right angles thereto; thence easterly 485 6-10 feet to a point 15 feet southerly from said right of way line measured at right angles thereto; thence easterly 200 5-10 feet to said south line of right of way; thence westerly along said south line of right of way 676 6-10 feet to the place of beginning, and containing 283-1000 of an acre more or less.

"It is also stipulated and agreed between the parties hereto as a part of the consideration for this conveyance:

"'1st. That the grade at the top of the rail at Miller's farm crossing when the improvement is completed shall not be lowered more than four (4) feet.

"2nd. That there shall be no tracks north of the present tracks in front of Miller's house while said house is occupied as a dwelling except as may be necessary in the work of excavation for the change of grade.

"3rd. That when the work is finished the quarry switch tracks shall not connect with the main track east of the corporation line, and the