My inability to concur in the majority opinion in this case does not rest so much upon disagreement with the majority view on the legal principles discussed and approved therein, but upon the practical situation presented *Page 332 by the pleadings, which, in my opinion, makes impracticable the enforcement of the covenant in question in a way that would save to the plaintiffs rights having any substantial value, especially when we compare them with the increased burdens sought to be imposed upon the defendant, and the attendant dangers to the public from the use of the crossing in question, should even a limited use thereof be permitted.
The deed upon which the plaintiffs rely in this suit was executed more than seventy-five years ago. The right-of-way conveyed by the deed ran through a farm of 490 acres. The crossing provided for therein was "a good crossing with cattle guards", and while not specifically defined as a farm crossing, must, in all reason, be so treated.
Later there was industrial development in that vicinity, and the use of the 490 acres of land as a farm was discontinued. In its place came a large population, most of whom engaged in industrial pursuits, particularly mining and railway employment, and in various types of business which followed as a natural consequence. A town, Hansford, was located and built on a part of the farm, and the balance was divided into small lots, now occupied for purposes other than agricultural. These changed conditions called for some action on the part of the public authorities, and a public road was established, which covered and used the private crossing over the railway provided for in the deed in question. Still later, increased population, greater use of highways occasioned by the development of motor vehicles, and, we may assume, concern for the safety of those who used that particular highway, called for a relocation thereof in the vicinity of this crossing, with the result that the use of the crossing, provided for in the covenant in the deed aforesaid, as a public highway, was discontinued. Before such discontinuance the plaintiffs had purchased four small lots of the original farm, on which was established what they say was a profitable business, the continuance of which, they state, is largely dependent upon the access thereto provided by the crossing *Page 333 so discontinued. When the public authorities discontinued the use of the crossing as a public highway, the defendant railway company closed the crossing for all purposes, and this suit followed.
The majority opinion, as I understand it, holds that the covenant in the deed of 1870, providing for the crossing in question, was one running with the land; and that the plaintiffs, as owners of a part of the land to which the covenant related, are entitled to have the same enforced for their benefit. It also holds them to be entitled to use the crossing in the same form, and to the same extent, as the original grantors were entitled to use the same in 1870, but no further. I agree that the covenant is one running with the land, but, I think, one which, in view of changed conditions, referred to above, cannot now be enforced; further, that being, in fact, a covenant for a farm crossing, and the land through which the right-of-way was conveyed being no longer used as a farm, there is no call or use for a farm crossing; wherefore, the covenant becomes unenforceable because of lack of any situation to which it can be applied. Regrettable as the situation of the plaintiffs may be, it is no different from that of many others whose property and rights have been injuriously affected by relocations of highways, and the manifold changes in values brought about by location of industrial plants and facilities, or their abandonment. This is a changing world, and owners of property hold the same subject to the vicissitudes of fortune, up or down, resulting from changed conditions, and the passing of time. For all those injuriously affected on such circumstances, I have sympathy; but in the matter of relief therefrom, I think the law is often helpless, and, in my opinion, this is such a case.
I think it must be admitted, and I understand the majority opinion as necessarily conceding, that the plaintiffs are not entitled to impose upon the railway company a burden greater than that provided for by the covenant in question. If this be true, how can the maintenance of a crossing, having any value to the plaintiffs, be said to be the crossing contemplated by the parties to the 1870 *Page 334 deed? That was "a good crossing with cattle guards". I think it fair to say that the use contemplated was the ordinary farm use, and by those owning the farm, or having business with its owners, should there be more than one. Now, notwithstanding the limitation attempted to be placed upon the character of the crossing to which the plaintiffs are held to be entitled, to be of any value whatever in these modern days, it must be a crossing which can be used by pedestrians, and all character of vehicular travel, including motor vehicles. Who will say that "a good crossing with cattle guards" contemplated a crossing which could be used by the character of traffic now carried on throughout this state, and this particular community? In 1870 there was probably not a paved highway in any rural community in this state, and motor vehicles were nonexistent. What was contemplated at the date of the deed containing the covenant was a private crossing. Now, in the light of the plaintiffs' situation, to be of any substantial value there must be a crossing which the public is entitled to use, through the means of transportation commonly available and used. They want a crossing which will permit the public to freely reach their place of business, and those of their tenants, so that all may reap profits therefrom. I can understand their position, and find no fault with their natural desire to protect the value of their property; but this Court may not, in a desire to aid them, impose a burden on another not contemplated, or provided for, in the deed on which the plaintiffs' claim is based. I think the solution which the Court is attempting to bring about is impossible of execution, without imposing a burden on the railway company, which was never contemplated it would be required to bear. In such a situation, the conditions under which the covenant was made having passed beyond recall, I think we should find that there is now no basis for any relief thereunder, and leave to public authorities the task of providing the plaintiffs, and others similarly situated, with reasonable access to the public highways in that vicinity.
I am not in sympathy with the contention of counsel *Page 335 for the railway company that because the crossing provided for in the covenant has developed into an obstacle to the efficient operation of the railway, and one of danger to those using the crossing, they were justified in violating a covenant otherwise enforceable. My dissatisfaction with the majority opinion is based solely upon the ground that, at this late day, and under changed conditions, and as a practical proposition, it is impossible to enforce the covenant in question, to the extent of giving the plaintiffs any substantial right, without at the same time imposing a burden on the railway company never contemplated by any of the parties to the deed of 1870. I would sustain the ruling of the Circuit Court of Kanawha County on the questions certified.