Cook v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 29 April 1912
• Citation: 146 S.W. 851,103 Ark. 326
• Parties: COOK v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

146 S.W. 851

103 Ark. 326

COOK v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

April 29, 1912

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; reversed.

STATEMENT BY THE COURT.

By an act of the Legislature the St. Louis, Iron Mountain & Southern Railway Company was required to build a steel or iron viaduct over its tracks along and upon College Street in the city of Texarkana to a point not to exceed 300 feet south of its right-of-way, and the city of Texarkana and the railway company were required to pay the abutting property owners all damages that might accrue to them by reason of the construction of the viaduct.

The appellants were each, separately, the owners of property abutting on College Street. They entered into a contract with the Railway Company and the city, by which, for a consideration of one dollar named in the contract, they agreed "to waive any and all right of action for damages to their respective properties by reason of the building of the viaduct." The waiver however was upon the condition that the owners, their heirs and assigns, should "have the right and privilege at any time to construct and maintain, at their own individual and separate expense, on a plane with such viaduct in front of their respective properties a bridge from the property line to a connection with said viaduct in such manner as to afford a safe means of ingress and egress to and from their respective properties to such viaduct for all purposes."

At the time the contract or waiver was executed the railway company exhibited to the abutting owners plans and specifications of the viaduct which showed that the viaduct would extend not more than 300 feet south of the railway company's right-of-way, and that it would be at an elevation in front of the respective properties not to exceed seventeen feet and would extend practically ten feet south of the north line of their lots. The abutting owners entered into a waiver agreement with the understanding that the railway company would build the viaduct in accordance with the plans and specifications.

The railway company filed condemnation suits to fix the amount of damages to be paid the abutting property owners by reason of the construction of the viaduct according to the plans and specifications which were then exhibited. When the railway company proceeded to build the viaduct, it changed the plans and specifications so as to continue the viaduct (at the greatest elevation) for more than 150 feet south of the original right-of-way and at an elevation of twenty-eight feet instead of seventeen feet. This construction also changed the viaduct so as to make it extend south of the right-of-way 500 feet instead of 300 feet, so as to pass by the entire frontage of some of the abutting property owners at an elevation of from ten to fifteen feet.

The various property owners each brought suit against the railway company and the city of Texarkana, setting up substantially the above facts, alleging the waiver agreement, that same was procured upon the exhibition of plans and specifications of the viaduct and the representation that the same would be constructed in accordance with those plans and specifications; alleging that the waiver agreement was based upon such representations; and further alleging that the railway company and the city of Texarkana altered the plans and constructed the viaduct in accordance with the change in the plans and specifications, which greatly damaged the property of plaintiffs, making the viaduct of an impracticable height and entailing upon them great expense in order that they might have ingress and egress to and from their property.

The railway company answered the complaint, denying all of its material allegations; denying that the changes in the plans and specifications of the viaduct were made for the purpose of damaging the property owners or that they were damaged in any manner by reason of the alleged change in the elevation and extension of the viaduct. And the answer averred that if the viaduct was built in front of plaintiffs' property at greater elevation than proposed at the time plaintiffs' waiver was obtained plaintiffs knew same was being done, and that with the full knowledge thereof they permitted the change to be made without objection and acquiesced therein and are now estopped to deny the right of the railway company to construct the viaduct, and are barred of any right of recovery of damages by reason of such change of such construction. The answer set up the contracts of release or waiver in defense of the plaintiffs' claims for damages.

Separate suits were brought, each plaintiff setting up his damages according to the manner in which he was particularly affected by the change in the plans and specifications for the construction of the viaduct, but the complaints were all substantially the same. The answers presented practically the same issues in each case. The cases were consolidated.

During the examination of a witness introduced on behalf of appellants, the court asked if the plaintiffs had knowledge or notice that the defendant railway company was in effect constructing the viaduct higher and longer than was represented to them in the obtaining of the releases or waivers. Plaintiffs' attorneys admitted that plaintiffs had such notice, but not until the material for the construction of the viaduct was on the ground and a portion of it up so as to show the elevation. They further admitted that they made no protest or complaint about the construction of the viaduct as it now stands until after the entire structure was completed and the railway company was in the council chamber of the city of Texarkana requesting that the viaduct be accepted under the law authorizing its construction.

The court thereupon refused to permit the plaintiffs to introduce proof upon the facts and contentions set forth in their complaints, and directed a verdict in favor of the defendants. The plaintiffs excepted to the ruling of the court.

In the case of one of the plaintiffs it was admitted that she had recovered judgment against the railway company for damages to her property, but the present suit was instituted for the recovery of additional damages by reason of the change in the plans and specifications under which the viaduct was finally constructed and completed. In the suit in which she had recovered judgment the change in the construction of the viaduct was not taken into consideration.

Judgment was entered in favor of the appellees upon the directed verdicts of the court. The appellants filed their motions for new trials, assigning, among other errors, that the court erred in instructing a verdict for the defendants.

Judgment reversed, and causes remanded.

J. E Cook and J. D. Cook, for appellants.

1. Under our Code, to support an estoppel in pais, or by record the same should be pleaded with particularity and precision, and nothing will be supplied by inference or intendment. Unless so pleaded, there is no...