Jasper County Electric Ry. Co. v. Curtis

• Decision Date: 05 February 1900
• Citation: 55 S.W. 222,154 Mo. 10
• Parties: JASPER COUNTY ELECTRIC RY. CO. v. CURTIS et ux.
• Court: Missouri Supreme Court

55 S.W. 222

154 Mo. 10

JASPER COUNTY ELECTRIC RY. CO. v. CURTIS et ux.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

STREET RAILWAYS — RIGHT OF WAY — CONTRACT TO CONVEY — CONSTRUCTION — ESTOPPEL — SPECIFIC PERFORMANCE.

1. Where defendants agreed to convey a right of way 25 feet wide on either side of the center line of an electric railroad, on condition that the line should be constructed so as to pass not less than 25 feet north of defendants' house, and, if the line referred to the track, there would remain a space of only 14 feet 4 inches between the right of way and defendants' house, the "line" referred to the south line of the right of way, and not to the track, since it was the intention of the parties to reserve a space of not less than 25 feet between the right of way and the house, to allow defendants access thereto.

2. Where plaintiff's petition and reply in a suit to compel specific performance of a contract to convey a right of way showed that plaintiff did not claim compliance with the terms of the original contract, under which it was not to construct the south line of its right of way less than 25 feet from defendants' house, but alleged that the road was located nearer thereto at defendants' request, and with their assent and agreement, plaintiff was estopped to claim that the distance from the center of the track, and not from the south line of the right of way, was intended by the contract.

3. Where plaintiff suing for the specific performance of a contract, by which tenants in common agreed to convey a right of way through their land, provided the line should not be constructed nearer than a certain distance from their house, alleged that such line was constructed nearer to one of the houses at defendants' request, and with their consent and agreement, evidence tending to show that defendants did not object to the road as located, and that one of them assisted in its construction, did not estop defendants from setting up as a defense that the road was built nearer to such house than provided in the contract, since, plaintiff having relied on an express parol modification thereof, the question of estoppel was not in issue.

4. Where defendants agreed to convey a right of way to an electric railway on condition of the location of its right of way 25 feet to the north of defendants' house, on the representations of the company's agents, forming the principal inducement to the agreement, that the company would only charge a five-cent fare to an adjoining town, and, believing that such fare limited in the company's charter could not be changed, such provision was not inserted in the contract, and the company laid out its right of way less than 15 feet from the house, and, without defendants' assent, procured a change in its charter allowing it to charge a ten-cent fare, it was only entitled to specific performance of the contract to convey on changing its right of way and reforming the contract so as to provide for a five-cent fare.

Appeal from circuit court, Jasper county; Joseph D. Perkins, Judge.

Bill by the Jasper County Electric Railway Company against H. C. Curtis and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This is a proceeding in equity to compel the defendants to specifically perform a contract to convey to plaintiff a right of way over the property of the defendants. Prior to December 14, 1894, the plaintiff was projecting an electric railroad from Carthage to Carterville or Webb City, and was seeking a right of way over private property therefor. The defendants, H. C. Curtis and Eva E. Curtis, his wife, owned, as tenants in common, each an undivided half of certain land in section number 12, township 28, range 32, in Jasper county. On said date they executed an agreement, in writing, binding themselves, in consideration of the sum of one dollar, and the construction by plaintiff of an electric railroad over their lands, to convey to plaintiff a right of way 50 feet wide, "being twenty-five feet wide on either side of center line of said electric railroad," over the defendants' land: "provided, however, that the said line will be constructed not less than twenty-five (25) feet to the north of what is termed the old house, and not less than fifty (50) nor more than two hundred (200) feet north of the new house, located near the south line of the northwest quarter of the northeast quarter of said section"; and also provided that the plaintiff should construct necessary crossings and cattle guards. The petition alleges "that said line of electric railroad was so constructed that the south line of the right of way provided for in said contract was fifteen feet north of the old house, and the south line of the track of said road is thirty-five feet north of the old house, and was so constructed at the request and with the consent and agreement of defendants herein; that otherwise plaintiff has fully complied with the terms and conditions of said contract on its part, and has constructed its electric railroad over said land, and has the same now in operation." The prayer is for specific performance. The answer is a general denial, and two principal specific defenses, to wit: First, that, contrary to the agreement, the road was built less than 25 feet north of the old house, and less than 50 feet north of the new house; and, second, that the contract was procured by plaintiff from them by fraudulent representations, in this: "That, if defendants would execute said contract, said railroad company would make and give defendants a rate of five cents from their dwelling house to the city of Carthage, and a rate of five cents to return;" and that the plaintiff agreed to give defendants said rate as an inducement and consideration for making the agreement; and, further, that the plaintiff represented to defendants at and before the signing of the agreement that by the terms of its franchise it could not, and would not if it could, charge them a rate to exceed five cents from their house to Carthage, and the same amount to return, and that defendants were induced by such representations not to insist upon such rate being embodied in the agreement. The answer then alleges a breach of the agreement, and that the plaintiff has persisted in charging a fare of 10 cents each way. There is also an allegation that the plaintiff has not constructed the necessary crossings and cattle guards. The prayer of the answer is that the contract be declared void, and that it be canceled. The reply is a general denial and a special plea that the road was constructed as it is by the consent and agreement and at the request of the defendants; that the south line of the track is 35 feet north of the old house, and the south line of the right of way is 15 feet north of the old house. On the 31st of December, 1894, defendants executed to plaintiff an agreement to give plaintiff a bonus of six acres of their said land in consideration of plaintiff constructing the electric railroad aforesaid as specified in the right of way contract of December 14th, above referred to. The plaintiff assigned the bonus contract to Isaac Perkins, one of its directors, and he instituted a proceeding in equity to compel defendants to specifically perform that contract. The issues in that case are substantially the same as in this case. The facts will sufficiently appear in the opinion. The circuit court entered a decree for plaintiff in each case, devesting the title out of defendants, and vesting it in plaintiff for a right of way, and in Perkins absolutely as to the six acres, and defendants appealed.

Thomas & Hackney, for appellants. McReynolds & Halliburton, for respondent.

MARSHALL, J. (after stating the facts).

1. It is contended, first, that the center of the track as laid is 39 feet and 4 inches north of the old house, and that this is a compliance with the terms of the agreement; that the agreement refers to the location of the track, and not to the location of the right of way, because the contract provides "that the said line shall be constructed," meaning the track, which was to be constructed, and not the right of way, which was not constructed; that, if this is not so, then, second, the right of way was to be 50 feet wide, — that is, 25 feet wide on each side of the center of the track, — and that, deducting the 25 feet from the 39 feet and 4 inches, it leaves the south line of the right of way 14 feet and 4 inches north of the old house, and that it was so constructed at the request and by the consent and agreement of the defendants. It is perfectly plain that the first contention is untenable. The contract is to convey a right of way 50 feet wide, "being 25 feet wide on either side of center line of said electric railroad": "provided, however, that the said line will be constructed so as to pass not less than 25 feet north of what is termed the old house, and not less than 50 nor more than 200 feet north of the new house." The line to be constructed here referred to evidently means the south line of the right of way, and this was plainly intended so as to reserve to the defendants a space of 25 feet between the old house and the right of way granted to plaintiff to afford access to their house. That this was the understanding of the plaintiff is demonstrated by the allegations of the petition and of the reply. In the petition it is stated "that said line of electric railroad was so constructed that the south line of the right of way provided for in said contract was fifteen feet north of the old house, and the south line of the track of said road is thirty-five feet north of the old house, and was so constructed at the request and with the consent and agreement of defendants herein; that otherwise plaintiff has fully complied with the terms and conditions of said contract on its part," etc. In the reply it is alleged as a defense to the defendants' plea that the...