Opinion by
Mb,. Justice Dean,This is a bill to restrain defendant from interfering with the erection and use by plaintiff of an overhead bridge, crossing over defendant’s railroad tracks, at plaintiff’s colliery.
Plaintiff is a coal operator and carries on the business of mining and marketing anthracite coal, at Scranton, under a lease of 225 acres of coal, from the executors of William Swetland. Besides the coal under the lease, plaintiff owns forty years’ accumulation of culm on the surface from former mining operations.
Plaintiff enjoyed a right of way by a bridge over defendant’s tracks, from 1859, down to the present. William Swetland, the lessor’s testator, owned in his lifetime the whole tract, coal and surface, except about fo nr acres, belonging to Lucilla Silk-man, which not long after the death of Shetland, she conveyed to his heirs and representatives, and which was included in the mining property, in 1871. Swetland had, on January 23,1854, granted to the railroad company a right of way through the tract in these words :
“ Doth hereby grant, bargain and sell unto the Delaware, Lackawanna & Western Railroad Company, their successors, representatives and assigns, the following lot or piece of land, for the purpose of the railroad of said company, the same being in Providence township, Luzerne county, .... bounded and described as follows: Northerly by land of Delaware, Lackawanna & Western Railroad Company, late Lucilla S. Silkman; southerly by land of Sylbanus Fellows, or Joseph Fellows, being a strip of land about fifty perches in length, occupied by the grade, track and survey of the said railroad company, and six perches in width; said railroad survey being in center of said strip of land, with such additional width as the necessary slopes of excavation and embankment may, in case of construction of a double track, require. This strip of land being only intended to be employed for right of way for the railroad of said company.”
Then, these are the words of the habendum : “ The said piece *446or parcel of land unto said company, and their successors and assigns, so long as the same shall be by them required for railroad purposes, it being, however, understood and agreed, that good and sufficient fences, wherever the same are, or as they may become necessary, shall be made and maintained by and at the expense of said company.”
It appeared that Swetiand, before and up to the time of this grant, had maintained and used a private way, to pass from the upper to the lower part of the tract; when the character of the tract was changed from a farm to coal mining land, the use of this way was abandoned. When in existence it crossed the Silkman four acres of surface, and was used by the public as well as by Swetiand, the latter then commencing and continuing to use an overhead bridge for purposes of communication between the two parts of his severed farm.
The charter of defendant, Act of April 7, 1882, P. L. 327, enacts thus:
“ That whenever the said railroad shall cross any private laid out road or highway, or shall divide the grounds of any person into two parts so as to require bridges over it, the said president and managers shall be at liberty to build bridges, to be rendered practicable and fit for the passage of carts and wagons ; and the breadth of such bridge shall be, if a bridge on a private road, or on the premises of an individual, or individuals, at least twelve feet on the tread or floor, and to repair the same, or erect and make new in place thereof.”
The first lease of the coal was made by Swetiand, in 1854, to Lewis & Howell. This lease expired on April 1, 1873, but with an option to renew the contract for a new term. Therefore, in view of the expiration of the lease on April 1, 1873, Swetiand having died, his executor, on July 19, 1871, reciting that the interests of Lewis & Howell had become vested in the executor and the Mount Pleasant Coal Company, a new lease of the coal was made to the company for a term of ten years. Successive term leases were made until the last one, under which the plaintiff is now operating; it is for all the coal in the tract, or until the coal is exhausted. The possible value of plaintiff’s grant is, that although the tract has been mined for forty years, there still remains 3,500,000 tons yet to be mined, under its lease, besides 750,000 tons of coal yet in the culm banks.
*447. During the whole period, from 1854, in which the mine has been operated, the coal mined has been sold and delivered to defendant, the Delaware, Lackawanna and Western Railroad Company, until July 12, 1899, when plaintiff made a contract with the New York, Ontario and Western Railroad Company, for the sale and delivery of its entire product to that company. This railroad also runs through the same tract of land. To facilitate, or make possible, the delivery of coal to the latter company, the plaintiff proposes to build a Howe truss bridge over defendant’s railroad, about fifteen feet distant from the present trestle over the same track which has been there since the mining of coal commenced. On the completion of the new structure, the old one will be entirely removed.
The- court below finds as a fact, to use its own words: “ The proposed structure, for all practical purposes, will be a safe one.”
This new structure defendant threatens to prevent by force. Plaintiff seeks by this bill to have it enjoined. The learned judge of the court below refused an injunction and dismissed the bill; hence this appeal by plaintiff.
In reviewing the case, we do not think it would profit either side were we to follow court and counsel by discussing specifically forty-three special findings of fact, sixteen conclusions of law and thirty assignments of error, argued at length. In our opinion, the issue turns on an interpretation of Swetland’s deed .of January 23, 1854, to the defendant company. The rights of both parties hinge on that deed; whatever they might have been at law, if defendant were there, by right of eminent domain, it would be fruitless to discuss, for it cannot be questioned, defendant entered under a contract with Swetland, the owner of the land, with no appropriation then or since of any portion by right of eminent domain. When the entry was made in 1854, the land was farm and coal land. Although no mining had yet been done, because of lack of transportation facilities, its quality and great value as coal land were well known to both parties. Defendant desired to cross it. This brought the two parties together, the owner of the coal land and the railroad company, and they made a contract, the material part of which we have quoted. Swetland says he hereby grants to the railroad company, “ the following lot or piece of land for *448the purposes of the railroad of said company.” This company was, under its charter, a miner and owner of coal land, as well as a shipper and carrier of coal. The grant is to the company in its business as a carrier and for no other purpose authorized by its charter. It then goes on to say: “ Being a strip of land about fifty perches in length, occupied by the grade, track and survey of the railroad of said company, and six perches in width, said survey being in the center of said strip of land, with such additional width as the necessary slopes of excavation and embankment may, in the case of a double track, require. This strip of land being only intended to be employed for right of way for the railroad of said company.”
It is obvious, neither the length nor the width of the strip had been measured; both were estimated, as appears from the use of the word “ about;” the right granted was, however, in the center, which was then occupied by one track, with such additional land, without regard to width, as might thereafter be necessary for two tracks; it was not for the general purposes of a railroad company, such as a shifting or distributing yard, as seems to be intimated by defendant, but is expressly restricted to a “ right of way ” purpose in the center of the strip; by the words used, the manifest intention of both parties being a right over the land for two tracks, whereon the company could lay its rails and run its cars. It was intended by this deed to convey a strip of land through the tract, supposed to be about fifty perches across, but if more than this, nevertheless, the right to cross was certain; the rails were to be laid in the center of the strip; for two tracks, the company was not restricted to the grade track and survey, but might widen out, as the necessities of slopes, excavations and embankments might require. Mills on Eminent Domain, section 110, says : “All contracts made by the condemning party with owner, whereby privileges are wholly or in part obtained, without condemnation, are favorably regarded by the courts and are construed strongly in favor of the owner.” So to the same effect is Lewis on Eminent Domain, sections 289, 290, 298. This is the rule of interpretation of such contracts with the owner. And this interpretation of the deed was put upon it by the defendant immediately after its delivery, by most significant acts. It was bound to erect fences; it constructed one on the *449eastern boundary of the right of way, exactly on the line of what would be sufficient for a double track, and just where plaintiff claims the boundary is indicated by the description in the deed; part of the fence is still standing, as testified by witnesses.
Further, Swetland laid out part of the surface in lots, one of which, containing an acre, he conveyed by deed, in 1863, to one Finch; the' boundary on one side is the railroad; before he got his deed, about 1855, he entered upon the land and erected a foundation for a machine shop, which is still standing and is in a direct line with the fence. Again, a bridge was erected over the rails, called the Swetland street bridge, the eastern abutment of which is on a line with the fence ; the same with the. eastern abutment of the culm bridge, which is on the samé line,- Further, the original slope to mine the coal, sunk as early as 1855, was within fifteen feet of the railroad track, on the west side, the track remaining as it was then. The shaft for mining coal, the breakers for preparing it for market, and many other facts, all occurring during defendant’s occupation of the land, show, that both the grantor and grantee, put the same construction on the deed as that now claimed by plaintiff. The facts stated are not of a doubtful character; they are clearly established; there is but one inference from them, and that, that defendant for forty-five years misinterpreted its deed, or is now, under the stress of litigation, giving its grant a wider seope.than its language and the surroundings at the date óf it warrant. If this deed were obscure, or ambiguous, the conduct of the parties to it for nearly half a century would be conclusive as to their intention. We can scarcely call the language ambiguous; the only uncertainty that can be alleged, arises from the' neglect to make exact measurements ; but, then they restrict.the grant by the most exact words indicative of the purpose,—“ It is only to be employed for right of way for the railroad of said company.”
. The learned judge of the court below gives no weight to these-facts,as showing the assertion of a right on part of plaintiff and acquiescence therein by defendant, but is of opinion, that on account of the friendly relations subsisting between them, the intrusions, or trespasses were submitted to. .We cannot so regard-.them., .They..were distinct assertions of a right, hostile *450to the claim now made, and utterly at variance with any other than a mere right of possession in defendant for the purpose of a roadbed; in substance, its acts were repeated admissions by defendant of plaintiff’s claim to the land, except for two tracks. Our observation is, that if there be any right of which railroad companies are jealous, it is of their right of way; it is rarely that they suffer such trespasses, if they be, in fact, trespasses, as is claimed to be shown by this evidence. We have repeatedly said, that what the parties mutually did and assented to under a contract, was an almost certain indication of its true meaning; not what they said as to its meaning after performance on each side, but what they did without objection while in the course of performance. In Republic Iron Works v. Burgwin, 139 Pa. 439, a case involving the construction of an agreement between heirs with reference to a tract of coal land, the present Chief Justice McCollum says: “For nearly fifty years the parties and their successors in title have occupied and used the property in conformity with this construction of the decree. It is a construction which gives effect to the obvious intention of the parties, and is consistent with the terms of the grant when read in the light of the circumstances and conditions affecting the subject of it.” Every word of which can be aptly applied to this contract and the conduct of the parties under it.
As before adverted to, the defendant’s right of way rests on a contract with the owner of the surface and coal; that the operator shall be able to work profitably the mines and ship over another railroad, an overhead bridge is necessary to supersede the present coal trestle, which latter is to be taken down and, in the language of the learned judge of the court below, “ By this change the danger will be actually decreased instead of increased.” Then as another fact he finds: “ Such bridge will not interfere with the operation of defendant’s railroad across the William Swetland tract, upon their right.of way, as they have occupied it from the time the first track was built down to the present time.” If the proposed structure does not intrude on their right of way, if it is not dangerous and in no way interferes with the operation of defendant’s railroad, why should they be forcibly prevented from erecting such bridge ? The court says : “ I consider the proposed overhead structure as reasonably necessary to the full and complete enjoyment of this *451property, under the lease which the plaintiff holds.” But he then decides that, “ Regardless of the manner in which the right of way was acquired, or the width to which the defendant company may be now entitled, the plaintiff company, without the consent of the railroad company, cannot cross it with an overhead structure such as is proposed,” and this because of the prohibition of the Act of April 16, Í838, P. L. 464. We are clearly of the opinion, that the learned judge of the court below, misinterpreted this act, or rather misapplied it to the facts of this case. By the 11th section of this act it is provided that no person shall construct, among other things, any crossing place on the ground set apart for, or belonging to that forming • part of the banks or excavation of any railroad, without permission in writing from the railroad company; and further, that if any person should commence, or make any such construction, without such consent, he should forfeit or pay not exceeding $100, and that the railroad company might, at his expense, remove and destroy such structure. Obviously, this act was aimed at the wilful trespasser and was intended to guard the right of way from unauthorized intrusion. It is penal in its nature and invests the railroad company with the right not only to prosecute to punishment a wrong, but also with despotic powers to the extent of destruction of valuable property. But it never was intended to define the rights and powers vested in a railroad company, under a deed from its grantor; rights under a contract, of which neither we nor the legislature could deprive either party. Here is a most valuable tract of coal land, containing several million tons of marketable coal, cut in two by a railroad. For the complete enjoyment of this property, it is necessary, that the owner shall cross the right of way by an overhead bridge or structure. The railroad company had no right there at all, unless such right was granted by the sovereign, the commonwealth, or by the owner ; it chose to accept a' right by contract with the owner who, for railroad purposes, gave to it a narrow strip, for the consideration of $20.00. The extent of this grant is carefully limited to but the one purpose; it reserves all the coal, both outside and beneath the tracks; it is a plain assertion of intent by the owner to enjoy to the full his property as a coal property. The railroad company is as fully a party to that contract as the owner; the right *452of either or both to contract could not be abridged by the legislature in the absence of any public policy demanding restriction or prohibition. No public policy in this case called for the interference of the legislature; therefore, the act of 1838 has no application; it was intended to -reach an entirely different sort of a case. We cannot, without disregarding the most familiar principles of equity, sustain defendant’s claim. It has under its charter an irrepealable authority to own, mine, sell and buy coal and coal lands; in addition, it has all the rights of a common carrier railroad; it ought not to be permitted to stretch its legal authority in the latter capacity, to prevent a rival coal operator from the full enjoyment of his property, and a competing railroad from facilities for shipping.
The whole argument of appellee’s able counsel, and the authorities cited to sustain it, is, in substance, based on the appropriation of land by a railroad company under a right of eminent domain. While we do not discuss this theory, neither will we. here undertake to deny it. What would have been our opinion had defendant appeared before us, claiming to hold under such an appropriation, is not intimated now. We only concede, there is a wide distinction in the extent of the rights.
It is further argued by appellee’s counsel, that although the court below expressly based its decision on a construction of the penal act of 1838, yet, on other grounds, not expressly stated, its decree should be sustained. But on our interpretation of the deed, the conduct of the parties for forty years under it, and the findings of fact by the court below, compel-the defendants to rest their right of entry on the deed; if that right be not enlarged, or rather, the plaintiff’s, circumscribed by the act of 1838, defendant has no authority to prevent the erection of the proposed structure. It can stand on no other ground than the deed, and yet by implication claim that its footing is made secure by the act of 1838. This ground as we have shown, is utterly insecure and crumbles when tested.
The decree of the court below is reversed, and it is ordered that the bill be reinstated; and the record is remitted to the court below and it is directed that an injunction issue, to accord with this opinion, and restrain defendant.
Further, as written agreements were filed, and offers in open court made by plaintiff as to details of the plans of. construe*453tion and the" use to be made thereof, to obviate objections made by defendant, the plaintiff should be directed to strictly conform to its agreements and offers made during the progress of the hearing. The decree in full can be better made by the court below than by us, as it can call in the assistance of counsel on both sides.
It is further ordered that defendant pay the costs.