Shenandoah Valley R. Co. v. Lewis

• Decision Date: 12 October 1882
• Citation: 76 Va. 833
• Parties: SHENANDOAH VALLEY RAILROAD CO. v. JOHN R. C. LEWIS. SHENANDOAH VALLEY RAILROAD CO. v. H. L. D. LEWIS.
• Court: Virginia Supreme Court

76 Va. 833

SHENANDOAH VALLEY RAILROAD CO. v. JOHN R. C. LEWIS.

SHENANDOAH VALLEY RAILROAD CO. v. H. L. D. LEWIS.

Supreme Court of Appeals of Virginia.

October 12, 1882

These are appeals from two decrees rendered 23d January, 1882, by the circuit court of Clarke county, in the two causes therein pending, wherein the Shenandoah Valley Railroad Company is the complainant, and in the first named, John R. C. Lewis and Maria B. Lewis, his wife, and others, are the defendants; and in the last named, H. L. D. Lewis is the defendant.

The company claimed that in 1871 John R. C. Lewis, acting for himself and his brother, H. L. D. Lewis, had contracted with its agents to grant to it the free right of way through their respective lands in Clarke county for its railroad, in consideration that it should, upon the completion of the railroad through the said lands, establish, at a point convenient to the said land owners, to be designated by said John R. C. Lewis, on the line of the road through one of the tracts of land, a switch, and thereat a flag station, at which they should be entitled to stop, for their own convenience, any local passenger train; and that the contract was reduced to writing, and had been lost or mislaid, and could not be produced.

In 1879, the company took possession, under said contract, of a width of said lands, whereon the road had been located, of thirty-three feet on each side of the center line of the road, and of a length of 3,740 feet, containing 5.66 acres of the land of John R. C. Lewis, and of same width and of a length of 1,435 feet, containing 2.17 acres of the land of H L. D. Lewis, and had at considerable expense built its railroad on said lands, and since December, 1879, have been running over it, daily, passenger and freight trains. The switch and the flag station were not established, but the company contended that it was always ready to establish them whenever John R. C. Lewis should designate their location.

By deed dated 26th October, 1878, John R. C. Lewis conveyed his land whereon the railroad is located, to R. P. Page, in trust for his wife, Maria B. Lewis, and their children. In March, 1880 said John R. C. Lewis, on the law side of the circuit court instituted his action of ejectment against said company for the recovery of said 5.66 acres of land from the possession of the said company. And said H. L. D. Lewis, on the same day, instituted a similar action for the recovery of the said 2.17 acres of land from the possession of the said company. In October, 1880, the said company obtained two several writs of injunction from the judge of said circuit court, enjoining the plaintiffs in the said actions of ejectment, and set forth in its petition the foregoing statements, and prayed for decrees requiring of the said John R. C. Lewis and H. L. D. Lewis, respectively, specific performance of the said alleged contract of right of way. The defendants respectively answered the bills, and denied that any such alleged contracts had been made by John R. C. Lewis, either for himself or for his said brother.

Depositions were taken and exhibits filed. For the defendants, John R. C. Lewis was examined as a witness. The company, by its counsel, objected to his examination on the ground that his wife was a party and interested in the controversy between the parties to the first named suit. But his deposition was taken, and he was cross-examined for the company by its counsel.

At the hearing of these causes the circuit court decided that John R. C. Lewis was incompetent to testify in the first named cause, and that the said alleged contract had not been established by proof, and dissolved the injunctions and dismissed the bills with costs.

From those decrees the Shenandoah Valley Railroad Company obtained appeals, which were heard together by this court.

M. McCormick and William H. Travers, for the appellant.

S. C. J. Moore & Son, for the appellees.

OPINION

ANDERSON, J.

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