Cephas Cobb versus The Hampshire and Hampden Canal Company, 18 Pick. 340

Shaw C. J. afterward drew up the opinion of the Court. The question submitted for the consideration of the Court is, whether the evidence set forth in the report is sufficient to support the plea of grant. This cause has been several times under the consideration of the Court, and they are of opinion, that the evidence is not sufficient to maintain the plea. I shall not be able at the present time, and with no opportunity to refer to the authorities, to give all the grounds upon which this opinion is founded.

The plea alleges a grant of a perpetual easement by the plaintiff to the defendants, embracing not only an authority to enter and excavate the canal and raise the embankments, but a perpetual right to use and improve the same, for all the pur poses f a public navigable canal. If this right is not established to the breadth and extent to which it is pleaded, the plea cannot avail.

The claim is of a perpetual easement, to use the place for a canal with its embankments and towing paths, a use so entirely incompatible with any beneficial use to be made of the land by the owner, that it is in effect equivalent to a claim of the fee. It is pleaded as a grant by deed. The deed produced is a personal contract between the plaintiff Cobb, on the one part, and Sheldon, Hurd, Collins and Painter, on the other part, executory in its character, not containing in terms a grant to any person.

The strongest construction which can be put upon it by the defendants is, that it amounted to a license to these individuals, to enter upon the land, and there to excavate and construct the Hampshire and Hampden Canal. But we think it would be a forced construction of this instrument, to hold it to have any greater force, at least until some further acf was done, than to stand as a personal license to the individuals named.

Had it not been rescinded, and had the location of the canal been legally altered, so as to pass in the direction which this deed was intended to give it, it might have operated to estop the plaintiff from claiming damages upon such location. But the location never was so altered, by any legal or binding act, and before any thing was or could be done, to give the defendants a claim to it, the contract itself was rescinded. One point of view, in which the question presented itself to the Court, was this.

Supposing this company, being authorized to excavate and build a canal, should contract with an individual to do the work, and pay all expenses, including damages for land, and such individual should procure a grant to himself personally, of the easement, to cut and for ever to use the canal, it would not of necessity enure as a grant to the individual to the use of the company, without any further act to be done by the individual to transfer such right to the company.

But without deciding that question, which might be one of some difficulty and depend much upon circumstances, we think it founded upon a supposition, which the present case does not warrant. It presupposes that the location is established and fixed by law, and that the right is fixed, to acquire the easement, upon payment of the damages, and that the undertaker acts within the scope nf his authority, by obtaining the grant of the easement, and actually making the canal on the line and at the place where it is fixed by law.

Insthat case, the easement, that is, the right itself, to take and use the land for the public object of establishing a canal, would exist independently of the grant, in the company, and the grant would operate as a release only of all claim to damages,'and such release would enure to those who had the right, who in the case supposed would be the company.

But if the contracter and undertaker, not acting within the scope of his authority, should obtain from the owners of land ■a. grant to enter, make and perpetually use a canal, on another lm¡" though perhaps parallel to and near the one located, in the expectation, that by some future act such altered location would be adopted and accepted in lieu of the one located, it seems difficult to' perceive how the company can avail themselves of such grant, until by some subsequent act the right is transferred and conveyed to them by the undertaker, who holds the right by deed.

It is very clear, that the company would be under no obligation to pay the undertaker for any work done on such altered location, and if money is paid or advanced under such circumstances, it is done in their own wrong, and in confidence, that such after acts shall be done, and grants made, as may reconcile the legal and equitable claims of all the parties.

In the present case, it appears that Sheldon and Hurd entered into a contract with the canal company to do all the work and find all the materials for excavating and constructing the canal and feeders, from the south line of the State at Southwick to the Connecticut river at Northampton, and pay all damages to which individuals should be entitled. But this contract was thus to construct the canal on the line fixed, and had reference to no other. There was a stipulation, that the line might be altered, but it was conditional, and the condition was never complied with.

It was to be by the consent of two thirds of a certain committee named in the contract, and no such consent was ever given. But there is another view of the subject. The contract with Cobb, was with Sheldon and Hurd, Collins and Painter. The two latter were wholly strangers to the defendants, the canal company. The two former were under contract with the company, to construct the canal, but at a different place.

By the contract relied upon, it is recited, that it was agreed by Cobb, that Sheldon and Hurd, Collins and Painter, shall have liberty to construct the Hampshire and Hampden canal obliquely through his homestead, in consideration of which hey agree to purchase his homestead at a price fixed, if he elects to sell it at that price, within a limited time, otherwise he is to claim no damage. The liberty is granted to them personally. The consideration proceeds personally from them. Even Sheldon and Hurd do not profess to act for the company, or to obtain the liberty or easement for them.

There is no privity in fact or in law, between the plaintiff and the company. And the facts find, that the object of the contract was to favor a speculation in real estate, in which these four persons were engaged. They might have good reason to believe, considering their relation to the company, and the extent to which they themselves were stockholders, that the company would adopt and ratify their act, and then their object would be accomplished.

But this contract, so far as it affected the rights of the company, was inchoate, executory and prospective, and a contract inter alios. under which no actual rights vested in this'company. But before any such act was done, as would make them parties, or vest any right in them, the contract was rescinded by the mutual consent of the parties, and with the intent, as the case finds, to put all the parties in the same state, as if it never had been made.

Under these circumstances the Court are of opinion, that this instrument cannot be relied on, as proof of a grant to the company, and that the plea is not supported.