Humphreys v. Richmond & M. R. Co

• Decision Date: 03 December 1891
• Citation: 88 Va. 431,13 S.E. 985
• Court: Virginia Supreme Court
• Parties: Humphreys v. Richmond & M. R. Co.

13 S.E. 985

88 Va. 431

Humphreys

v.Richmond & M. R. Co.

Supreme Court of Appeals of Virginia.

Dec. 3, 1891.

Right of Wat — Contract — Delivery — Parov Evidence.

1. An agreement to deed a right of way through certain land, in consideration of the construction of the road, may be shown by parol evidence to have been delivered to the president of the road, on condition that it should not be used unless the withholding of it would defeat the building of the road, or the board of directors of the road should make compensation for the right of way.

2. After the completion of the road, although there had been no necessity for using the contract, and although no compensation had been made by the directory, and none asked of them, the president turned "the contract over to the right-of-way agent of the road, who had knowledge of the conditions on which it was delivered to the president. Held, that the contract was void, and the owner might recover the damages to his land.

Suit by T. F. Humphreys against the Richmond & Mecklenburg Railroad Company for the enjoining of an action at law, to have a contract declared void, and for other relief. From a decree for defendant, complainant appeals. Reversed.

W. TV. Henry and Finch & A tkins, for appellant.

T. N. Williams and B. B. Mun-ford, for appellee.

Richardson, J. This is an appeal from a decree of the circuit court of Mecklenburg county, rendered on the 15th day of April, 1889, in the suit in chancery therein pending, wherein T. F. Humphreys was plaintiff, and the Richmond & Mecklenburg Railroad Company was defendant. The case, briefly outlined, is as follows: In the year 1803, T. F. Humphreys purchased a tract of land in the county of Mecklenburg, on Roanoke river, near the town of Clarksville, of one Joseph G. Snead. Subsequent to this purchase, in a suit brought to enforce a prior lien, the same land was sold on the 5th of July, 1870, under a decree of court, and was bought in by said Humphreys, and he thereby became the owner in fee of said land. Prior to the purchase by Humphreys, to-wit, in the year 1860, the Roanoke Valley Railroad Company had entered upon said land without taking the steps required by law for the purpose, and, without any title to same, had erected thereon earth-works and masonry for the purposes of its railway, and in the construction of said earth-works and masonry took or occupied and seriouslv damaged several acres of valuable river bottom land belonging to said tract. The Roanoke Valley Railroad Company became insolvent, and did not complete any part of its proposed line of railway, and some time in the year 1880 the Richmond & Mecklenburg Railroad Company became the owner of the property, rights, and franchises of said Roanoke Valley Railroad Company. Thereupon the Richmond & Mecklenburg Railroad Company entered into an agreement with the Richmond & West Point Railway & Warehouse Company, through the Richmond & Danville Railroad Company, which controlled said Richmond & West Point Railway & Warehouse Company, to build the proposed Richmond & Mecklenburg Railroad from Charlottesville to Keysville, in the county of Charlotte, and a point on the Richmond & Danville Railroad, for a certain amount of the first mortgage bonds of the Richmond & Mecklenburg Railroad Company; but upon the following conditions: (1) That the Richmond & Mecklenburg Railroad Company should acquire a perfect title to all the franchises, property, rights of way, and road-bed of the old Roanoke Valley Railroad Company, the same having been mortgaged and in the hands of trustees; the same to be purchased from said trustees for $300,-000, payable in the paid-up capital stock of the Richmond & Mecklenburg Railroad Company. (2) That the said trustees should transfer and assign to the said terminal and warehouse company the said $300,000 of paid-up stock of the Richmond & Mecklenburg Railroad Company. This arrangement having been effected, and the conditions aforesaid complied with, thereupon P. F. Howard was employed by the Richmond & Mecklenburg Railroad Company to acquire for it the rights of way along the line of the proposed road. In furtherance of that object, he and John B. McPhail, the president of the Richmond & Mecklenburg Railroad Company, approached T. F.Humphreys, and requested him to donate the right of way through his said land; but Humphreys declined to do so, saying he had already subscribed $1,000 to the capital stock of said company, which was as much as he was able to give it. It seems, however, to have been thought by McPhail that the refusal of Humphreys to donate the right of way through his laud, if known, would be injurious to the scheme for securing the donation of the right of way from others along the line. He therefore called on Humphreys again, and proposed a special arrangement. Land-owners along the line having been asked to sign a general paper binding them, respectively, to donate the right of way through their lands, Humphreys was asked to sign a separate paper, of similar import, which was to be held by McPhail, and not to be delivered to the railroad company unless compensation was allowed him or the construction of the road would be prevented by withholding such paper; and, McPhail insisting that the demand for compensation might endanger the building of the road, Humphreys signed and delivered to McPhail the paper, to be held by him subject to the conditions aforesaid. But, after securing said paper, under such circumstances, without securing compensation to Humphreys, or making any effort to do so, although the company had ample assets out of which to make the compensation, McPhail, long after the building of said road was assured, delivered the paper so executed by Humphreys to said P. F. Howard, the regularly employed agent of said Richmond & Mecklenburg Railroad Company, to acquire for it the rights of way along the line of its road, and who was present when said paper was executed and delivered by Humphreys to McPhail, and was fully cognizant of the condition aforesaid upon which it was executed and delivered. Subsequently, and prior to the institution of the present suit, the Richmond & Mecklenburg Bail-road Company brought an action at law in the circuit court of Mecklenburg county against said T. F. Humphreys, the object of which was to collect from him $700, the balance claimed to be due on his said subscription of $1,000; and at the October term, 1885, of said court, with the leave of court, said Humphreys filed his bill against said Richmond & Mecklenburg Railroad Company, setting forth substantially the facts above stated, and praying for an injunction to restrain said railroad company from proceeding in said action at law until thefurther order of the court; that said paper of October 3, 1881, be declared null and void; that the damages to the plaintiff's land be setoff against said subscription; and that the defendant company be required to answer, but waiving answer under oath; and for general relief. A temporary injunction waw accordingly awarded the plaintiff, but oncondition of Ids confessing judgment in said action at law for the said balance due on said subscription, which was done. The Richmond & Mecklenburg Railroad Company answered the plaintiff's bill, and claimed that while it may be true, as alleged, that the Roanoke Valley Railroad Company entered upon the land in question about the year I860, without any authority, and while it may be true that said corporation had no title to said right of way, yet insists that the plaintiff is estopped from raising a question of title as to that corpora tion, for the reason that about October, 1881, by a certain paper, he gave the unconditional right of way through his low grounds to Maj. John B. McPhail, then and now president of the Richmond & Mecklenburg Railroad Company, and with its answer exhibited said paper, or a copy thereof, marked "A." And the said company in its answer denies that it ever entered upon the lands of the plaintiff without permission and in disregard of his rights, but says "that the authority under the paper writing referred to was complete, and which authority was never questioned by the plaintiff, although it was a long time after the paper was executed by him and delivered to Maj. John B. McPhail before respondent began to work on that part of the right of way given by said paper, which intervening time afforded every opportunity for the plaintiff to make any demand he thought proper for compensation, or to object to a continuance of work, and yet said complainant never in any way objected to the work, or said one thing about pay, which, respondent submits, is very strange upon his part, if, under said paper, he was entitled to it." The defendant company denies having ever injured the lands of complainant, but say that said land, if injured, was injured long before by the same embankment placed there by another railroad company, and that, oven if the lands have been injured, it is by no fault of respondent, etc. Such is the answer, omitting its merely argumentative features, except that itconcludes with a prayer that the injunction awarded the plaintiff be dissolved, and that he be required to specifically perform his agreement to convey said right of way to respondent, etc. Depositions were taken by both parties, and on the 15th day of April, 1889, the cause came on to be heard, when a decree was rendered dissolving the injunction theretofore awarded in the cause, and dismissing the plaintiff's bill, and from that decree the case is here on appeal.

The case presented for our determination turns upon the legal effect of Paper A, executed on the 3d of October, 1881, by the appellant, T. F. Humphreys, and delivered to John B. McPhail, to be delivered by him to the Richmond & Mecklenburg Railroad Company upon certain conditions; which paper is as follows: " In consideration of the advantage to be derived from the construction of the Richmond &...