This is a bill in chancery brought by Charles B. Hoard against the Chesapeake & Ohio Railway Company in the District Court of the United States for the district of West Virginia. The main object of the bill, so far as it can be ascertained, is to enforce specifically the contract set out in writing between the complainant and the Chesapeake & Ohio Railroad Company, which is made an exhibit to the bill, and purports to have been executed on the twenty-eighth of July, 1873. The first part of the instrument professes to be a deed of conveyance, whereby, in consideration of the sum of $1,000 in hand paid, the receipt of which is acknowledged, the complainant sold and conveyed to the Chesapeake & Ohio Railroad Company several pieces of land in the town of Ceredo, in the state of West Virginia, which are minutely described, and which seem to be parts or parcels of land laid out in town lots by the plaintiff, through which it was expected the road of the company would be located. This grant is expressed to be on the condition that in the event the property so conveyed should cease to be used for railroad purposes by the company, its successors or assigns, the estate thereby granted shall revert to the grantor, his heirs or assigns. There was also a covenant that the complainant was to have leave and permission to connect a single siding or branch with the track of the railroad at a point near the Ceredo Hotel, owned by him, and that the company would erect lawful fences and protect said tracks. There is no contract or covenant in this agreement, although it is signed by the railroad company, that it would build its road along and through the property so conveyed, and certainly no contract that it would continue it there, because one of the conditions is that if it should cease to use the road there the title to the land should revert to the grantor. Yet the main foundation of the relief sought in this action is based upon the allegation of a covenant in this contract that the railroad company would build their road over the grounds designated in this conveyance, and the relief asked is that the railway company shall now be compelled, although they have for 10 or 12 years been using the track through other grounds than these, to abandon that and construct their road through the lots mentioned in this contract and continue the same.
The prayer of the bill for relief is 'that the Chesapeake & Ohio Railway Company be made a party defendant to this bill; that process may issue; that defendant may be compelled to answer the same; that the contract of twenty-eighth July, 1873, be specifically enforced; that the defendant may be compelled to permanently maintain, establish, and run its road through the village of Ceredo, as specified in the contract, and to erect and maintain a depot and place for the convenient and regular receipt and delivery of freight and passengers in the town of Ceredo, near Ceredo Hotel; that it may be decreed to pay to the complainant the sum of $1,000, with interest from the date of the contract; that it may be decreed to do and perform all and everything covenanted to be done and performed by the railroad company by the contract aforesaid; that the defendant may be inhibited, restrained, and enjoined from all further proceedings in the condemnation case pending in this court in the name of the Chesapeake & Ohio Railway Company v. Hoard and al. And after the answer shall have come in, and the cause shall have been fully heard, that defendant be perpetually enjoined, inhibited, and restrained from running its cars, engines, and trains, over the complainant's land on the present location of their road, and as now constructed.'
It will be perceived by this statement of the case that the defendant in this suit is not the Chesapeake & Ohio Railroad Company, with whom the plaintiff made his contract, but the allegation of the bill on this subject is that the 'Chesapeake & Ohio Railroad Company' was sold out under a mortgage foreclosure, and that the purchasers, by virtue of the law of West Virginia, became a corporation by the name of 'The Chesapeake & Ohio Railway Company,' the present defendant, 'and entitled to all the works, property, estate, rights, franchises, and privileges, theretofore owned and possessed by the Chesapeake & Ohio Railroad Company, and subject to all the restrictions imposed by law upon said last-named company.'