Northwestern Public Service Co. v. Chicago & N. W. Ry. Co.

• Decision Date: 31 August 1973
• Docket Number: No. 10964,10964
• Court: South Dakota Supreme Court
• Parties: NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a corporation, Defendant and Appellant, and Fred E. Ellwein, Defendant and Respondent.

Page 158

210 N.W.2d 158

87 S.D. 480

NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation Plaintiff, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a corporation Defendant and Appellant and Fred E. Ellwein, Defendant and Respondent.

No. 10964.

Supreme Court of South Dakota.

Aug. 31, 1973.

William S. Churchill, Huron, Woods, Fuller, Schultz & Smith, Sioux Falls, for defendant and appellant.

Loucks, Oviatt, Bradshaw & Green, Watertown, for defendant and respondent.

DOYLE, Justice.

This case has been before this court on a prior occasion. Northwestern Public Service Company v. Chicago and North Western Railway Company and Ellwein, 1969, 84 S.D. 271, 170 N.W.2d 351; rehearing denied October 8, 1969. The facts as set forth in the above cited opinion will not be reiterated here. In accordance with this court's mandate, this action was remitted to the circuit court where the matter came to trial upon amended pleadings. In effect, the case, as amended, is now one on rescission of the agreement between the parties with restoration of the real property to the appellant, Railway Company, and restoration of the monetary consideration to the respondent, Ellwein.

In the trial to the court the evidence consisted of the testimony of Ellwein which, among other matters, indicated that he lived across the street from the premises for many years and was well acquainted with the location and nature of the power lines in question. In addition to the oral testimony of Ellwein, some thirty-seven exhibits were introduced into evidence. These exhibits consisted of the offer to purchase (the pertinent part of which is set forth in our prior opinion), letters from Ellwein to the Railway Company, and inter-department railroad memoranda, which were unknown to Ellwein until after the sale had been consummated. Based upon this evidence the trial court found that the Railway Company had made false representations deliberately as to the rights Ellwein would acquire under the Railway Company's deeds granting him two parcels of land, and that by reason of such false representations, knowingly made, Ellwein had rescinded the transaction and was entitled to recover the purchase price and expenses necessarily incurred as a result of the transaction. From the judgment in favor of Ellwein the Railway Company appeals.

In this court's prior opinion involving this case, it was stated:

'When considered in the light of the license agreement, the existing power line and the meaning of the terms under established law of this state, it is clear that the parties' intentions, as shown by the reservations and exceptions in the deeds executed by the defendant railway company, was to reserve from the operation of the deeds and retain in the grantor railway company the right to maintain, operate, use, reconstruct and replace the electric transmission line in existence across the lots conveyed. Defendant railway company retaining this right as to the electric transmission line, retained the right to continue the license to the plaintiff. Plaintiff Northwestern Public Service Company, by the exception in the deeds, retained, after the execution of the deeds, the rights which it previously had under the terms of the license agreement with defendant Chicago & Northwestern Railway Company. Defendant Ellwein, having acquired no interest in the subject of the license, could neither receive compensation therefor nor exercise the power of revocation, and his motion for summary judgment should have been denied by the trial court.'

It is our conclusion that the evidence obtained at the subsequent trial showed that Ellwein and the Railway Company negotiated the sale and purchase of the parcels in question over a considerable period of time; that the purchase and sale negotiations were both oral and written, as between Ellwein, his attorney and the agents and employees of the Railway Company; that, pursuant to these negotiations, two quit claim deeds were drawn; and that the...