Galveston, H. & S. A. R. R. Co. v. Ireland

• Decision Date: 29 November 1881
• Docket Number: Case No. 3718.
• Citation: 56 Tex. 66
• Parties: GALVESTON, H. & S. A. R. R. CO. v. PFEUFFER & IRELAND.
• Court: Texas Supreme Court

56 Tex. 66

GALVESTON, H. & S. A. R. R. CO.

v.PFEUFFER & IRELAND.

Case No. 3718.

Supreme Court of Texas.

Nov. 29, 1881.

APPEAL from Guadalupe. Tried below before the Hon. E. Lewis.

Suit by Pfeuffer & Ireland against appellant, alleging that appellant had forcibly taken possession of and evicted appellees from their land; that defendant had already greatly damaged appellees in cutting and filling said property and in divers ways destroying its value; that the line of the road was then located and established from east to west across the land the entire distance, thereby partially injuring the same in value and usefulness; that the company was then in the act of making another survey; in fact had run a line, and were in the act of cutting the property in two by running another line and establishing another railway at right angles with their other line, running from south to north, which, if accomplished, would well nigh destroy the value of the property. That the portion then seriously threatened by the company was the north half of the league; and if the purpose of the company was accomplished, it would damage petitioners in the sum of at least $10,000; that the damage already done to petitioners' property was at least $5,000, and they prayed judgment for their damages.

The defendant demurred generally, pleaded a general denial, and that Ireland, one of the plaintiffs, released in writing the right of way to defendant for its road.

Plaintiffs amended, and said that the deed from Ireland for the right of way, if there was any, was without consideration and void, and given, if at all, on the express condition and understanding that defendant would make no depot at the Guadalupe river west of Seguin, but that it would deliver all freight and passengers at Seguin until a depot could be established west of the river, and that this agreement was broken by the defendant as soon as it obtained the deed; that the deed never was intended to convey any but Ireland's interest in the land, which was a two-thirds interest; that the other third did not belong to Ireland, which defendant knew, but belonged to Lawler's heirs, but had since been bought by Pfeuffer.

Defendant moved to strike out the amended petition because it sought to set up an agreement different from that set up in the deed of release.

Demurrer of defendant overruled; also motion to strike out amended petition, and judgment for plaintiff for $650; the verdict reciting that $275 and $36.66 interest was for the land taken for right of way, $288.34 for damages to the land through which the road passed, and $50 damages for lineal surveys; and that if the judgment was not paid in sixty days after adjournment of court, for the clerk to issue a writ of possession to put plaintiff in possession of the land. No allegation of fraud was made.

The deed from Ireland dated August 3, 1876, “in consideration of enhanced value to be given and is contemplated to arise to his land and other property by location and construction of the road, and one dollar paid” to appellant for a strip of one hundred and fifty feet in width through the tract, was read in evidence.

Converse, an agent for defendant, testified that there was an agreement with a number of citizens of the county that they would furnish right of way to road through the county; that understanding under agreement still existed when deed was made; no consideration was paid or promised; witness was in employ and chief civil engineer of appellant, and never made statement to Ireland that Seguin should be terminal depot until station and depot at Santa Clara, west of Guadalupe river, should be established; nor did he make such statement to any one. Pfeuffer told him he was going north to get title to Clements' league; came to his office and told him whatever Ireland did in the matter would be satisfactory to him. Never said Seguin should be terminal depot; think Ireland would have seen him in purgatory before he would have given the right of way if he had thought a station would be established at Guadalupe river; proposed that one hundred acres be added to fifty acres donated to depots; the proposition was never accepted. Ireland asked this witness the question, “Do you not know that I would have seen your road buried before I would have signed the deed if I had not understood that Seguin was to be terminus until a depot was erected at the Santa Clara?” To which he answered, “I do.”

Pfeuffer testified that he had never given anybody right of way over Clements' league; had no recollection of saying he would agree to anything Ireland might do in the matter.

Ireland testified that but for the agreement with the people of Seguin about right of way, he would never have signed the deed; that he never knew about the lines running northwardly until it was done; nor had he been asked or consented that it should be done; Converse knew he would not have released had it not been understood that Seguin should continue terminal depot of the road until Guadalupe river was bridged and depot at Santa Clara west of river established; agreement or understanding not expressed in deed, because did not think it of sufficient importance; did probably agree to contribute whatever damages to his land might amount to, to secure right of way through the county. That it was expressly understood between him and Converse that Seguin was to be terminus of road until depot west of river was established, and he signed the deed with this understanding. Converse at the time was the only agent acting for the road there, and as soon as road reached the river it was made the terminus in violation of appellant's agreement.

The damages resulting from running trial lines and construction of road was estimated by witness at as much as $1,000.

W. E. Goodrich, for appellant.

W. J. Darden, also for appellant.

Ireland, and Jas. H. Burts, for appellees.

I. The ruling of the court on the motion to strike out amended petition was correct. Ranger & Co. v. Hearne, 14 Tex., 258; Thomas v. Hammond, 47 Tex., 43; Lewis v. Brewster, 57 Pa. St., 410; Holmes' Appeal, 79 Pa. St., 279; Taylor v. Preston, Id., 436; Davenport v. McCampbell, 17 B. Mon., 38;Wilkinson v. Scott, 17 Mass., 256;Horner v. Chicago, Milwaukee & St. Paul R'y Co., 38 Wis., 165.

II. The ruling of the court in refusing to give instruction No. 4, asked by appellant, was correct. Appellant asked the court to instruct jury as follows, to wit: “Parol evidence is not allowed to alter or vary the terms of a written contract, nor would a deed conveying the right of way on land be void because the grantee failed to pay the purchase money, unless it should be so expressly stipulated in the deed itself.” Thomas v. Hammond, 47 Tex., 42; Wharton on Law of Evidence, sec. 1044.

III. The judgment was warranted by the law and the evidence. Ranger & Co. v. Hearne, 41 Tex., 258;Thomas v. Hammond, 47 Tex., 42;Horner v. Chicago, Milwaukee & St. Paul R'y Co., 38 Wis., 165; Lewis v. Brewster, 57 Pa. St., 410; Holmes' Appeal, 79 Pa. St., 279; Boatman v. Savings Inst., 57 Mo., 553; Wilkinson v. Scott, 17 Mass., 256; Graham v. Connersville, 3 Mallory R. R. Cases, 28; Hush v. 1st Division, 4 Id., 204; Hampton v. St. Paul, 4 Id., 216; Daniels v. Chicago, 5 Id., 83; Wharton on Law of Evid., sec. 1044, and note.

QUINAN, J. COM. APP.

The second assignment of errors, that the court erred in refusing to strike out plaintiffs' amended petition, is in our judgment well taken.

The amended petition attempts to avoid the grant by Ireland to the railroad company of the right of way over his land, alleging that it was given “on the express condition and understanding that said defendant would make no depot at the Guadalupe river west of the town of Seguin, and that it would not deliver freight or passengers at said point, but...