Knoxville, C. G. & L. R. Co. v. Beeler

• Decision Date: 01 September 1891
• Citation: 18 S.W. 391
• Parties: KNOXVILLE, C. G. & L. R. CO. <I>v.</I> BEELER.
• Court: Tennessee Supreme Court

18 S.W. 391

KNOXVILLE, C. G. & L. R. CO.v.

BEELER.

Supreme Court of Tennessee.

September Term, 1891.

Appeal from circuit court, Grainger county; W. R. HICKS, Judge.

Action by R. B. Beeler against the Knoxville, Cumberland Gap & Louisville Railroad Company to recover damages for trespass. Plaintiff obtained judgment, and defendant appeals. Affirmed.

Washburn & Templeton and G. McHenderson, for appellant. Shields & Shields and J. T. Essory, for appellee.

LURTON, J.

Action against the Knoxville, Cumberland Gap & Louisville Railroad Company to recover damages for a trespass by entering upon the premises of Beeler, and constructing its line of railway across his farm without having purchased or condemned the right of way. The company contested that the plaintiff, if entitled to anything, was damaged to the sum of $1,500. There was a verdict and judgment for this sum, from which the railway company has appealed. The company's defense was that the plaintiff, in consideration of public and private benefits, had, before its entry upon his premises, conveyed to it, by deed duly executed and delivered, a right of way across his farm, and that it, had entered under and in pursuance of said deed, and constructed its line of road. This deed was upon the condition that "this right is given provided the road runs at back of garden." The point in controversy was as to the meaning of this provision. Plaintiff insisted that the road had been constructed through and within his garden, and that the right of way conveyed depended upon the construction of the road without and back of his garden. The circuit judge, deeming the terms of this provision ambiguous, admitted evidence, not only of the situation of the plaintiff's premises, location of this garden with reference to his house and other improvements, but proof of all that was said and done by the parties at the time of the execution of the deed. The bill of exceptions shows a general exception to all this evidence. The exception is too general. Some of this evidence was clearly competent, and a general statement in a bill of exceptions that it was all objected to, without any statement of ground of such exception, is bad, and will not support an assignment of error.

Appellant assigns as error that the court, upon motion, failed and refused to strike out this evidence. This motion was that the court would "strike out all oral evidence in regard to the deed." This was too general, and was properly overruled. A motion of this kind, to be available on appeal, should point out explicitly the particular evidence which has been improperly admitted. If the motion covers competent as well as incompetent evidence, it will not be error to overrule same

Appellant moved the court to construe the deed to the jury, and to instruct them that the words "at back of garden" meant in or near the back part of the garden; "and a location of the railway at the back fence or line of the garden, or obliquely across the back line or fence, partly inside and partly outside, or partly inside the garden but near the back line, would be a compliance with the proviso." This was refused, and the jury instructed that these words were ambiguous, and they must look to the extraneous evidence admitted, "and to all that was said and done at the time of its execution," and from this determine whether the road was to be built entirely without and back of the garden, or within same, but at or near its back line. The refusal of the court to construe this deed to the jury, and its instructions that the jury might look to all that was said and done at the time of its execution to aid them in construing it, is assigned as error. The rule undoubtedly is that the construction of a written instrument introduced in evidence is matter of law for the court. Bedford v. Flowers, 11 Humph. 245; Railroad v. McKenna, 13 Lea, 288. But this court will not reverse for failure of the circuit judge to instruct the jury as to the legal effect of a contract submitted in evidence, if the finding manifestly evinces a correct...