Richmond & M. R. Co v. Humphreys.1

• Decision Date: 18 January 1894
• Citation: 90 Va. 425,18 S.E. 901
• Court: Virginia Supreme Court
• Parties: RICHMOND & M. R. CO. v. HUMPHREYS.1

18 S.E. 901

90 Va. 425

RICHMOND & M. R. CO.

v.HUMPHREYS.¹

Supreme Court of Appeals of Virginia.

Jan. 18, 1894.

Continuance—Want of Diligence—Eminent Domain—Evidence.

1. Upon a motion for a continuance on the second trial of a case, it appeared that, on May 28th, process was issued for a witness distant over 100 miles, and was served on May 31st, to appear June 2d; that the witness was not present; that he had done certain work, the value of which was in dispute, but that none of the attorneys had conversed with him, or knew what his evidence would be; that six months had elapsed since the court on appeal ordered the case to be tried, almost all of which time was allowed to elapse without effort to ascertain what his testimony would be. Held no error to deny the motion.

2. Upon a question as to the value of the property taken in condemnation proceedings by a railroad company, and the privilege of using certain earth and stone work, it is not error to refuse to allow a witness to testify that he had donated similar property to the company.

3. It is not error to refuse to interrupt counsel in the midst of an argument to the jury, in order to give instructions upon a question under discussion.

4. A railroad company, without lawful proceedings, entered upon certain property, and constructed expensive earth and stone work. This company became insolvent, and its franchise and property were bought out by another company. Held, that the purchaser was liable to the landowner for the land taken, without considering the benefit arising by the construction of the road, and for the damage to the residue of the tract, which was its difference in market value before and after taking, and that the amount to be awarded for the land taken, including the earth and stone work, is the fair. cash market value of the land and said improvement at the time of the taking, in view of the uses to which they had been put. Lacy, J., dissenting.

5. A verdict will not be disturbed where the evidence would have warranted a larger amount j of damages than that given.

Appeal from circuit court, Mecklenburg county.

T. F. Humphreys owned a tract of land upon which a railroad company had illegally entered and constructed expensive earth and \ stone work. The company became insolvent, and its entire property was purchased by j the Richmond & Mecklenburg Railroad Company, which was compelled, by a former order of this court, to condemn and pay for the right of way over the tract in question. Up-I on a trial of the issues as ordered by this court, Humphreys obtained a verdict for $7,079, with interest from January 1, 1882, and, from a decree approving said verdict, the company appealed. Affirmed.

B. B. Munford and Th. N. Williams, for appellant.

Finch & Atkins and W. W. Henry, for appellee.

RICHARDSON, J. This is an appeal from a decree of the circuit court of Mecklenburg county, rendered on the 6th day of June, 1892, in a suit in equity therein then pending, wherein T. F. Humphreys was plaintiff, and the Richmond & Mecklenburg Railroad Company was defendant. This is the second time this case has been before this court, and for a full statement of the circumstances under which the controversy arose, and the merits of the controversy, reference is made to the opinion of this court when the case was formerly here. See Humphreys v. Rail road Co., 88 Va. 431, 13 S. E. 985. For the purposes of this opinion it is sufficient to say that the appellee, Humphreys, was a subscriber to the capital stock of the Richmond & Mecklenburg Railroad Company in the sum of $1,000, which had been reduced, by payments, to $700. Humphreys was at this time the owner, by purchase, of a tract of land on Roanoke river, near Clarksville, over which, prior to the purchase of Humphreys, the old Roanoke Valley Railroad Company had erected costly stone piers in the Roanoke river, a stone abutment at the bank of said river, and an extensive earthwork or embankment from said abutment to the high ground south thereof, as and for a part of its roadway. This work was constructed without authority of law, the Roanoke Valley Railroad Company never having in any way acquired the right of way over this tract of land, though it had acquired the right of way through and over most of the other lands along its proposed railway. Before completing its road, the Roanoke Valley Railroad Company became insolvent, and, by purchase, the Richmond & Mecklenburg Railroad Company became its successor, and the owner of all the rights of way which had been lawfully acquired by it, but did not thereby become the owner of the right of way, nor of the stone and earth work aforesaid, on and over the tract of land owned by the appellee, Humphreys, which, as before stated, had never been acquired by said Roanoke Valley Railroad Company. Humphreys having subscribed, as aforesaid, to the capital stock of the Richmond & Mecklenburg Railroad Company, when that company was about proceeding to construct its road, its agents were directed to solicit the donations of the right of way by the landowners, respectively, along the proposed road, to the company. The president of the company, J. B. McPhail, after frequent and urgent importunities, representations, and promises, finally induced the appellee, Humphreys, to execute the paper known in the original record as "Exhibit A, " which upon its face was an unconditional obligation on his part to convey to the Richmond & Mecklenburg Railroad Company, when 1 hereto requested by the president of said company, the right of way through and over his said tract of land, and said paper was delivered to said McPhail, but upon the agreement and understanding between him and Humphreys that said paper should not be delivered to said company except upon just compensation by it to Humphreys for the stone and earth work aforesaid, including the land proposed, to be taken, and for damages to the residue of the tract of land, unless the withholding of the paper would endanger the construction of the road. McPhail, though ho had undertaken and promised to do so, and had thereby induced Humphreys to execute said paper "A, " never presented to the directory of his said company the claim of Humphreys to compensation, nor did he ever take any step to secure the same, but, on the contrary, long after the building and equipment of his

company's road was fully assured, and when

the company had ample means with which to make just compensation to Humphreys for his property, turned said paper "A" over to his said company, and thenceforth the company claimed that, by that paper, Humphreys had made an absolute and unconditional donation of the right of way over his said land, including the valuable stone and earth work aforesaid, and that he was bound to convey the same to the company, as provided on the face of said paper. This con-tention was denied by Humphreys, who insisted that said paper was executed by him, and delivered to McPhail as his agent, upon and subject to the conditions above named, neither of which conditions had been performed, and that, instead of delivering said paper to the company, he should, under the circumstances, have delivered the same up to Humphreys. in the mean time, and prior to the institution of this suit, the Richmond & Mecklenburg Railroad Company instituted an action at law in the circuit court of Mecklenburg county against said T. F. Humphreys, to recover from the latter the balance due on his said subscription of $1,000 to the capital stock of said company.

At the October term, 1S85, of said court, with the leave of court, Humphreys tiled his bill against the Richmond & Mecklenburg Railroad Company, setting forth substantially, but more in detail, the circumstances and facts above referred to, and praying for an injunction to restrain said railroad company from proceeding in said action at law until the further order of the court; that said paper "A, " executed on the 3d of October, 1881, be declared null and void; that the damages to the plaintiff's land be set off against his said subscription, etc., —and for general relief. A temporary injunction was accordingly awarded the plaintiff, Humphreys, but on condition of his confessing judgment in said action at law for the balance due on his said subscription, and judgment was accordingly confessed. The Richmond & Mecklenburg Railroad Company answered the bill, admitting, in effect, that it had not in any way acquired the right of way over the plaintiff's land other than by said paper "A, " and insisting that, by said paper, Humphreys made an unconditional donation of said right of way, including said stone and earth work, and that he was estopped thereby from raising any question as to the company's right to said property, and that it was entitled to have a conveyance of same from Humphreys, according to the terms of said paper. Being thus at issue, both parties took depositions, and the cause, having been matured, came on and was heard by said circuit court on the 15th day of April, 1889, when a decree was therein rendered, dissolving the injunction theretofore awarded in the cause, and dismissing the plaintiff's bill. From that decree, the plaintiff. Humphreys, obtained an appeal to this court. Upon the hearing of that appeal, this court held that said paper "A, " executed and delivered by said Humphreys to said McPhail on the 3d of October, 1881, was so executed and delivered upon certain conditions, neither of which had been performed, and that the same was nidi and void; and this court, so holding, entered a decree here, reversing and annulling the decree of the circuit court, of Mecklenburg county appealed from, to wit, the decree of April 15. 1889, and remanding the cause to the said circuit court, with instructions to restore the case to its place on the docket, to be proceeded in to a final decree, and with a further instruction that, when the case should be matured for hearing, the said circuit...