Quanah, A. & P. Ry. Co. v. Cooper

• Decision Date: 21 December 1921
• Docket Number: (No. 1865.)
• Citation: 236 S.W. 811
• Parties: QUANAH, A. & P. RY. CO. v. COOPER et al.
• Court: Texas Court of Appeals

Page 811

236 S.W. 811

QUANAH, A. & P. RY. CO. v. COOPER et al.

(No. 1865.)

Court of Civil Appeals of Texas. Amarillo.

December 21, 1921.

Rehearing Denied February 1, 1922.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by the Quanah, Acme & Pacific Railway Company against A. J. Cooper and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Jno. P. Marrs, of Wichita Falls, for appellant.

Bouldin & Surles, of Mineral Wells, for appellees.

BOYCE, J.

The Quanah, Acme & Pacific Railway Company sued A. J. Cooper and others on a contract whereby the defendants, called subscribers, undertook to pay the railway company a bonus and secure certain right of way for its line of road. It was alleged that the subscribers had failed to secure right of way through two tracts of land included within the terms of the contract, and the railway company brought the suit to recover the amounts which it had paid in securing such right of way. A trial before the judge resulted in judgment for the defendants, and the plaintiff appeals.

The contract referred to was in writing, dated July 15, 1912, and the provisions thereof material to this decision are as follows:

"First. The company, for and in consideration that the several persons who have promised to pay to said railway company the several sums of money evidenced by several promissory notes, bearing even date and aggregating the sum of $15,000, shall comply with and pay said sums according to said several contracts, and the further consideration that the subscribers shall immediately procure free of cost to railway company right of way for its line as herein provided, through and across Motley county; the company promises and agrees that it will on or before September 1, 1913, construct a line of standard gauge steam railway from its terminus in Paducah, Cottle county, to a station on section 29, H. & G. N. Ry. Co. surveys in Motley county, Texas.

"Second. Subscribers promise and agree to procure deeds in fee simple from all landowners, excepting E. P. and S. A. Swenson and the Matador Land & Cattle Company, to right of way extending on either side, not less than 50 nor more than 100 feet from the center of the line to be selected by railway company. The 200 feet right of way to be obtained at such place as the engineer of company shall deem necessary for the proper construction of the railway track. Subscribers promise to furnish with deeds to such right of way an abstract of title to same showing good and sufficient title vested in the company.

"Third. In the event subscribers are unable to agree with owners of the land as to the price to be paid for such right of way, and the general attorney of the railway is of the opinion that owners of the land are demanding a greater sum than is reasonable, then railway company agrees that it will exercise its right of eminent domain, and condemn such right of way, and prosecute such suit to such extent as the general attorney of railway company deems profitable to railway company and subscribers: Provided, always, the judgment of the court, as well as all costs thereof, excepting attorney's fees, shall be paid by subscribers."

The railway company built its road within the prescribed time to the station on section 29, and the town located there was called Roaring Springs. It did not stop on section 29, however, but built the road on to McBain, 3½ miles beyond Roaring Springs. McBain was also in Motley county, and was itself several miles distant from the county line. The subscribers did not secure for the railway company right of way through two tracts of land over which it thus built. One tract is called the Collett tract, and the other the Hale tract. The railway company secured the right of way over said tracts at a cost of $1,737.63 for the right of way over the Collett tract and $105 for that over the Hale tract. A decision of the right to recover on the two separate claims calls for a conclusion as to different contentions in the application of the contract to different facts, and we will consider them from now on separately, taking up first the issues as to the Collett tract.

The Collett tract of land was between Roaring Springs and McBain, and the subscribers contended that they were not bound by the contract to secure the right of way beyond section 29. The railway company contended that the contract bound the subscribers to secure the right of way through, meaning thereby from side to side, of Motley county. The contract was drawn by the general attorney for the railway company, and he, in behalf of the railway company, conducted the negotiations leading up to its execution. Evidence was offered to the effect that in such negotiations nothing was said about building the road beyond Roaring Springs; that said attorney had a meeting with the interested parties, and stated in a speech at such meeting that "the purpose of the meeting was getting a bonus of $15,000 to build that road from Paducah to section 29 in Motley county"; that the parties were asked to meet such attorney and railway officials "to discuss building a railroad from Paducah to section 29 in Motley county"; that in such meeting "there was something said about how far they were going to build the road—to section 29. Nobody at that meeting said anything about extending it on through Motley county. It was the understanding that the road would be built to section 29, so as to put the town site on that section." The trial judge made this finding of fact:

"I find that at the time the contract dated July 15, 1912, was entered into nothing was said by any of the parties about the said railway being built any further than section 29, nor was it contemplated by the subscribers that said road should be built any further, nor did they know that it would be built further, until some time in 1913, and that said extension beyond said section 29 was not a matter in contemplation of the said subscribers at the time said contract was made, nor did they ever agree to secure any right of way for said company free of charge west of said section 29."

The judge concluded as a matter of law:

"That the expression `through and across Motley county,' taken in connection with the balance of said contract, is ambiguous in this: That it may mean (a) entirely across Motley county; (b) across that part of it that said railway company shall build on; or (c) that part of it then contracted to be built; that is to say, a line of railway extending from Paducah to said section 29. Therefore the testimony of defendant's witnesses, showing what was in contemplation of the parties at the time and all the facts and circumstances showing what was intended, is admissible to show, in connection with the other words used in said contract in that connection, what was the intention of the parties on which their minds met, I further find that, said contract having been prepared by plaintiff's agent for them, that fact should be considered. I therefore conclude that the contract contemplated the building of a railroad to section 29, and that the words `through and across Motley county' meant through and across all that part of Motley county through which the road contracted for, to wit, a railway from Paducah to section 29, would run."

We do not think there was any error in the admission of the oral testimony referred to or in the construction placed by the court on the contract. In the case of Provident Life & Trust Co. v. Mercer, 170 U. S. 602, 18 Sup. Ct. 792, 42 L. Ed. 1160, it is said:

"It is true the primary meaning of the word `through' is from end to end, or from side to side; but it is used in a narrower and different sense. Its meaning is often qualified by the context. Thus, if one should say that he had spent the summer traveling through New England it would not be understood as carrying an affirmation that he had been from one side clear to the other, or from one end clear to the other, but that his travels had been within the limits of New England. That book which is said to have a wider circulation than any except the Bible, Bunyan's Pilgrim's Progress, opens with this sentence: `As I walked through the wilderness of this world, I lighted on a certain place where there was a den, and laid me down in that place to sleep.' Does the writer mean that he passed from one end of the wilderness to the other, and at the further end found the den, or simply that as he traveled in the wilderness he lighted on the den? Obviously the latter. Many similar illustrations might be cited. They show that `through' does not always mean from end to end, or from side to side, but frequently means simply `within.'"

We apprehend that the same observations might be made as to the word "across." Does the context qualify the primary meaning of the words "through and across," as used in this contract? There is a qualifying clause in the same sentence — the subscribers contract to procure "right of way for its line as herein provided, through and across Motley county." Does the clause "as herein provided" refer to the "line of railway through and across Motley county," or does it refer to the character of the right of way to be provided, and thus relate to the second subdivision of the contract?

"The strict rule of grammar would probably require that the qualifying clause in the sentence should be held to modify the nearest word to which it is applicable in the context." Lemp v. Armengol, 86 Tex. 692, 26 S. W. 942.

So, by a strict grammatical construction the clause would perhaps be taken as referring to the line of road for which right of way was to be procured. As the contract only provides for a line of road from Paducah, in Cottle county, to section 29 in Motley county, its meaning if this clause is to have the relation indicated, would require the subscribers to furnish the right of way through and across Motley county to section 29, and no violence would...