Taylor v. North Pacific Coast Railroad

Ross. J.: The plaintiff, being the owner of a tract of land in Marin County, granted to the defendant the right of way thereover for its railroad, the latter covenanting,.among other things, to build for the plaintiff a certain wagon-road in lieu of one destroyed by the railroad; and also to fence both sides of the way granted, with a good and substantial picket fence; and thereafter to maintain such fence.

Defendant failed to construct the road or build the fence, hence this action to recover for the breach of the covenant. In the Court below, the plaintiff was permitted to prove and recover the estimated cost of constructing the road and building the fence.

Was this the proper measure of damages ? is the question mainly argued for the appellant, and the only point made on its behalf that we deem it necessary to notice. It is said, that, inasmuch as the plaintiff has not built the road nor the fence, he has suffered no actual damage, and that, therefore, he is only entitled to recover nominal damages. ■ We do not think this position sound. As well might it be contended, that if A contracts to build a house for B, arid is paid for it,-and then fails [319]to keep his agreement, B can recover only nominal damages until he has himself built the house he paid A to build. In the case in hand, the plaintiff granted to the defendant a right of way through his property, in consideration of which defendant agreed, among other things, to construct the road and fence in question. The building of the road and fence was a part of the consideration for the grant.

The defendant chose to stipulate for the payment of the con sideration in this way, and we cannot see why it is not as much bound to perform its agreement as if it had stipulated to pay in anything else. Suppose, for instance, it had agreed to deliver to plaintiff, as a part of the consideration for the right of way, a> thousand-dollar United State four-per-cent, bond, and then refused to keep the covenant. Would any one doubt that the plaintiff could maintain an action for its breach, and recover, as the measure of damage, the value of the bond? We see no difference in principle between the case supposed and the present one. Here the agreement was to build a certain road and a certain fence. Failing to build them, we think defendant should be made to pay what it would reasonably cost to construct them. These views will be found supported by the following authorities: Lawton v. Fitchburg R. R. Co. 8 Cush. 230; St. Louis, J. & C. R. R. Co. v. Lurton, 72 Ill. 118; L. C. & S. Railway Co. v. Wray, 52 Ind. 578.