Boise Valley Const. Co. v. Kroeger

• Decision Date: 11 December 1909
• Citation: 105 P. 1070,17 Idaho 384
• Parties: BOISE VALLEY CONSTRUCTION CO., Respondent, v. THEODORE KROEGER, Appellant
• Court: Idaho Supreme Court

105 P. 1070

17 Idaho 384

BOISE VALLEY CONSTRUCTION CO., Respondent, v. THEODORE KROEGER, Appellant

Supreme Court of Idaho

December 11, 1909

CONSTRUCTION OF CONTRACT-MATURITY OF OBLIGATION-COMPENSATION FOR RAILROAD RIGHT OF WAY-ACTION FOR COMPENSATION BY LAND OWNER-WAIVER OF TORT AND ACTION ON IMPLIED PROMISE-ACQUIESCENCE IN USE OF RIGHT OF WAY-ONE ACTION FOR PERMANENT INJURY-MEASURE OF DAMAGES TO REAL ESTATE.

1. Agreement sued on in this action considered, and held that it embodies two separate and independent contracts.

2. A contract, whereby the obligor promises and agrees to pay a railroad company the sum of $600 "as soon as said first parties [the railroad company], or their assigns, have constructed and put into operation an electric railway line from the city of Boise to the strip of land above described said first parties to give street-car service of intervals of not more than thirty minutes, and to charge a fare from the city of Boise to said strip of land of not more than five cents," is certain and definite as to the time the obligation becomes due; and, while parol evidence is admissible to explain what was meant by "other considerations" named in the contract, it cannot vary the specific terms as to the time at which the obligation becomes due. Held, also, that the term "to the strip of land above described" does not mean "upon or over the strip of land above described."

3. Where K.'s land has been appropriated by a railroad company for its right of way, and a road has been built thereon, K. may elect to waive his remedies in ejectment injunction, and trespass, and may sue as upon an implied promise and contract to pay rea- sonable compensation for the lands taken. In such case, the land owner has a right to assume that the company could acquire his land by proceedings in condemnation, and he may therefore waive such proceeding and assume that the railroad company will pay him reasonable compensation therefor. If it fails to keep its implied contract in this respect, he may have his action for the value of the land taken as upon contract.

4. Instruction given by the court as to acquiescence examined and held that, while the conduct set forth and enumerated in the instruction would preclude the land owner from thereafter resorting to the action of ejectment against the railroad company and also preclude him from obtaining an injunction against the company continuing its work and operations, still such conduct would not divest him of the title to his property, and would not be inconsistent with the assumption on his part that the company would pay him reasonable compensation for the land taken.

5. Held, that the following instruction was erroneous: "If you believe from the evidence, as alleged in the answer, that plaintiff committed injuries to the lands of the defendant in the building of the railway grade mentioned in the pleadings and the evidence, and you further believe from the evidence that since the commission of such injury, defendant has sold and disposed of his said lands, then the court instructs you that the defendant may not recover for any injuries to said lands, save such as may have accrued to the same, as you may believe from the evidence accrued thereto, between the building of such grade or embankment and the time of the sale of such lands."

Held further, that where the acts of the tort-feasor have been completed and consummated, and the causes from which the injury must necessarily flow are patent and obvious, that in such case the injury is of such a permanent nature that the whole damages, past, present, and prospective, may be recovered in one action, and that one recovery only should be allowed.

6. Actions against railroad and other public service corporations for damages committed by them in the construction of their roads differ from actions for damages sustained by reason of the maintenance of a nuisance, and should not be governed by the rule applicable to nuisance cases.

7. The rule in this state as to the measure of damages to real property is as follows:

"If land is taken or the value thereof totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction with legal interest thereon to the time of the trial.

"If the land is permanently injured but not totally destroyed, the owner will be entitled to recover the difference between the ac- tual cash value at a time immediately preceding the injury and the actual cash value of the land in the condition it was immediately after the injury, with legal interest thereon to the time of the trial.

"If the land is temporarily but not permanently injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial."

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action by the plaintiff for debt. Answer and counterclaim by defendant denying the maturity of the obligation and alleging damages to real estate. Judgment for plaintiff and defendant appealed. Reversed.

Judgment reversed, and a new trial ordered. Costs awarded in favor of appellant.

D. D. Williams, Gustave Kroeger, and J. C. Johnston, for Appellant.

The remedy of injunction and ejectment cannot be invoked after the road has been constructed and possession of the land taken by the company for railway purposes. Defendant's action then was only an action for damages. (Lawrence v. Morgan's etc. R. & Steamship Co., 39 La. Ann. 427, 4 Am. St. 265, 2 So. 69; St. Julian v. R. Co., 35 La. Ann. 924; Hall v. Pickering, 40 Me. 548; Baker v. R. Co., 57 Mo. 265; McClinton v. R. Co., 66 Pa. 404; Tompkins v. R. Co., 21 S.C. 420; Rio Grande etc. Ry. Co. v. Oritz, 75 Tex. 602, 12 S.W. 1129; International etc. Ry. Co. v. Juina & Benitos, 59 Tex. 326; Midland Ry. Co. v. Smith, 125 Ind. 509, 25 N.E. 153; Bloomfield R. Co. v. Grace, 112 Ind. 128, 13 N.E. 680; Evansville etc. R. Co. v. Grady, 6 Bush (Ky.), 144, 145; Chicago & Iowa R. R. Co. v. Davis, 86 Ill. 20; 16 Cyc. 768, note 95; Western Pennsylvania R. Co. v. Johnston, 59 Pa. 290, 291; Thornton v. R. Co., 84 Ala. 109, 5 Am. St. 337, 4 So. 197; Galveston etc. R. Co. v. Pfeuffer, 56 Tex. 66, 67.)

Where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having obtained a right of way by formal condemnation proceedings, and without having procured any title to the land over which it operates its railroad or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may maintain an action against the company for damages. (Cohen v. R. Co., 34 Kan. 158, 55 Am. St. 242, 8 P. 138; Zimmerman v. R. Co., 144 F. 622, 623, 75 C. C. A. 424; 18 Cent. Digest, sec. 729; United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L. ed. 846; 2 Elliott on Railroads, secs. 1048, 1055; Wichita etc. R. Co. v. Fechheimer, 36 Kan. 45, 12 P. 362; Knox v. R. Co., 58 Hun (N. Y. ), 517, 12 N.Y.S. 848; Southern Ry. Co. v. Hood, 126 Ala. 312, 85 Am. St. 32, 28 So. 662; Cowan v. Ry. Co., 118 Ala. 554, 23 So. 754.)

A land owner whose premises are entered by a railroad company without his consent and without condemnation proceedings is entitled to the value of the land when taken, and the injury or diminution in the value caused to the remainder. (Southern R. Co. v. Cowan, 129 Ala. 577, 578, 29 So. 985; R. Co. v. Combs, 39 Am. & Eng. Ry. Cas. 140; Donald v. R. Co., 52 Iowa 411, 3 N.W. 462; Daniels v. R. Co., 41 Iowa 52; Texas etc. R. Co. v. Matthews, 60 Tex. 215; Houston etc. R. Co. v. Adams, 63 Tex. 200.)

"If land is taken or the value thereof totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction, with legal intest thereon to the time of the trial." (Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296.)

The refusal to grant the amendment was an abuse of discretion, as it deprived the defendant in the court below of a substantial right. (Palmer v. Utah Ry. Co., 2 Idaho 382-384. 16 P. 553; Idaho Placer Min. Co., Ltd., v. Green, 14 Idaho 294, 94 P. 161.)

When a written agreement states a consideration in general terms, it is competent to show by parol the particulars included in the general description, in order to show that there has been a failure of consideration, and the extent of it. (Lufburrow v. Henderson, 30 Ga. 482; 6 Am. & Eng. Ency. of Law, 2d ed., 666, 767, 797; Railway Co. v. Doss (Tex. Civ. App.), 36 S.W. 497; Louisville etc. R. Co. v. Neafus, 93 Ky. 53, 18 S.W. 1030.)

Matters independent of the contract may be proven by parol, and oral testimony may be introduced to show a consideration additional to that expressed in the contract. (Windsor v. Ry. Co., 37 Wash. 156, 79 P. 613; L'Engle v. Ins. Co., 48 Fla. 83, 111 Am. St. 70, 37 So. 462, 67 L. R. A. 581; First National Bank v. Rothschilds, 107 Ill.App. 133; Barnes v. Black, 193 Pa. 450, 74 Am. St. 694, 44 A. 550; Huckestein v. Kelley & Jones Co., 152 Pa. 631, 25 A. 747; Martin v. Rotan Grocery Co. (Tex. Civ. App.), 66 S.W. 212; Trimmier v. Liles, 58 S.C. 284, 36 S.E. 652.)

If adjoining owners occupy their lands with reference to a certain dividing line, with intent to claim up to such line mere passive acquiescence will be sufficient to make such line binding, it being unnecessary that there be an express agreement, or act amounting to an implied agreement. (...