Pfiffner v. Stillwater & St. Paul R. Co.

• Decision Date: 07 February 1877
• Citation: 23 Minn. 343
• Parties: FRANK PFIFFNER <I>vs.</I> STILLWATER & ST. PAUL RAILROAD COMPANY.
• Court: Minnesota Supreme Court

23 Minn. 343

FRANK PFIFFNER vs. STILLWATER & ST. PAUL RAILROAD COMPANY.

Supreme Court of Minnesota.

February 7, 1877.

Appeal by defendant from a judgment of the district court for Washington county, where the action was tried before Crosby, J., without a jury.

James Smith, jr., and H. R. Murdock, for appellant.

McCluer & Marsh, for respondent.

GILFILLAN, C. J.

Action in trespass for entering upon, taking possession of, and continuing to use for railroad purposes a strip of land belonging to plaintiff. The answer sets up, as a defence and counterclaim, and asks for the specific performance of, an oral agreement by plaintiff to convey the strip in question to defendant.

In 1869 defendant procured the condemnation to its use, in constructing its road, of a strip of plaintiff's land, near to that in question, but afterwards concluded to change its line, and run it over the latter, and thereupon, without the consent of plaintiff, ran its line and constructed its road over the latter strip — the strip in question. After the road was constructed across that strip, except surfacing, the parties made an oral agreement, by which it was agreed that defendant should abandon the line first adopted by it, and for which it had condemned the right of way, and adopt and use, in lieu thereof, the line over the strip in question; should pay as compensation a certain sum, larger than that awarded on the condemnation of the abandoned strip; should, as soon as the frost should be out of the ground the ensuing spring, fence its railroad across the strip in question, and construct for plaintiff a wagon and cattle-pass, with cattle-guards across its road, on said strip, at such place as plaintiff should designate, and that thereupon plaintiff should convey said strip to defendant. Relying upon said agreement, and pursuant to its terms, the defendant, at an expense of $300, constructed the fence, wagon and cattle-passes, and cattle-guards and crossings, at the places designated by plaintiff, and had the same completed by July 28th following the agreement; and it also, at an expense of $500, surfaced its railroad across said land. It afterwards tendered the compensation agreed on, and demanded a conveyance from plaintiff.

As the taking possession by defendant of the strip in question was before the agreement, and without the consent of plaintiff, such possession was not attributable to the agreement, and, therefore, no part-performance to take the case out of the statute of frauds. But as the court below has found as a fact that, relying upon the agreement, and pursuant to its terms, the defendant made the improvements...