Theberge v. Canadian Pac. Ry. Co., No. 958

• Docket Nº: No. 958
• Citation: 119 Vt. 193, 122 A.2d 848
• Case Date: May 01, 1956
• Court: United States State Supreme Court of Vermont

Page 848

122 A.2d 848 119 Vt. 193 Ernestine V. THEBERGE
v.
CANADIAN PACIFIC RAILWAY COMPANY. No. 958. Supreme Court of Vermont. May 1, 1956.

Page 849

[119 Vt. 194] Raymond L. Miles, Newport, for plaintiff.

Pierce & Drown, Newport, for defendant.

Before [119 Vt. 193] JEFFORDS, C. J., and CLEARY, ADAMS, CHASE, and HULBURD, JJ.

[119 Vt. 194] HULBURD, Justice.

This case is here on exceptions to the overruling by the trial court of the defendant's demurrer to the plaintiff's complaint. As amended, the plaintiff's complaint, contains the following allegations which we will quote so far as is necessary to present the question raised by the defendant's demurrer.

'The plaintiff was on, to wit, the 1st day of August, 1944, ever since has been and still is the owner of certain lands and premises and the buildings thereon, and the appurtenances thereof, situate in the Town of Newport in the County of Orleans and State of Vermont, to wit: The Emile Brasseur farm, so-called, consisting of * * *.

[119 Vt. 195] 'On, to wit, May 2, 1951, said plaintiff entered into an agreement with said defendant whereby she, said plaintiff, for herself, her heirs, executors, administrators and assigns, in consideration of the sum of Six Hundred Dollars, ($600.00) and other valuable considerations, to her paid and promised by said defendant, granted to said defendant for the period of eight (8) years from the date of said agreement, the right to enter and remove dirt and gravel from the parcel of land described below and containing ten and sixty-four thousandths (10.64 [sic]) acres and being a part of said farm with the right to lay railway tracks to said parcel from the right of way of the said defendant, and to cut down and remove standing trees and branches on said parcel, and to do all acts necessary to remove said dirt and gravel from said parcel of land described in said agreement as follows, to wit: (Description of land omitted.)

'* * * There was on, to wit, April 2, 1951, a spring of water on the lands

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of the plaintiff, which said spring of water was several feet easterly of the last aforesaid parcel of land and which spring was fed by so-called veins of water lying and being in and upon the last aforesaid described parcel of land and which said spring of water supplied a sufficient and adequate supply of water for household and dairy purposes to the buildings on plaintiff's said farm by means of a pipe line between said spring and said buildings, and whereas a portion of said pipe line extended through or near said last described parcel all of which the defendant then and there well knew, and

'For that whereas the said defendant caused to be prepared the aforesaid agreement bearing date of, to wit, April 2, 1951 and caused the same to be executed by it by its agents, Duncan Ives McNeill, its Vice President, and James C. Bonan, its Assistant Secretary on, to wit, the 18th day of April, 1951 and whereas after said execution by the defendant as aforesaid and on, to wit, the first day of May, 1951 the defendant [119 Vt. 196] caused said agreement to be presented to the plaintiff for her signature and acknowledgement at the City of Newport, Vermont. Whereupon the plaintiff refused to sign the same because said agreement contained nothing protecting her from damage to or loss of her said water supply by reason of, or arising from the exercise by the defendant of the rights and privileges obtained by reason of said agreement, and the plaintiff alleges that upon her said refusal to execute and acknowledge said agreement for the reasons aforesaid, the said defendant as an additional inducement to said plaintiff to sign and acknowledge the same, and as a further consideration thereof, then and there orally promised the plaintiff that said defendant would pay all loss and damage suffered by said plaintiff by reason of any damage to or any loss of her said water supply, and in the event the same was lost or damaged to replenish and repair the same or to pay the damages in consequence thereof, whereupon, and relying thereon said plaintiff did, on, to wit, the first day of May, A.D. 1951, sign and acknowledge said agreement.

'And for assigning a breach of the aforesaid agreement of the defendant to pay all loss and damage suffered by said plaintiff by reason of any damage to or loss of plaintiff's said water supply and to replenish and repair the same, plaintiff alleges, that after said agreement was executed by the plaintiff and defendant as aforesaid the said defendant entered upon said described (10.64) acre parcel with machinery and by the use of dynamite thereon, excavated and removed dirt, gravel, stones, trees and bushes therefrom, whereupon and by reason whereof plaintiff's said spring of water and the veins of water supplying it were damaged and the plaintiff's said spring and water supply were greatly damaged and diminished so that the same became and have ever since continued to be insufficient, inadequate and of little or no value to the plaintiff whereby she suffered and continues to suffer damage as follows:' (Items of damage totaling $20,000 follow.)

[119 Vt. 197] At the outset, let us make it clear that in considering the defendant's demurrer to the foregoing declaration, we are confined to the allegations as they appear. The defendant would like to have us go further. It says in its brief that in the written instrument in question, the consideration was stated to be six hundred dollars and that 'there is no recital clause of 'and other valuable considerations' as the plaintiff has alleged' in his complaint. However this may be, a demurrer is not aided by facts not appearing in the declaration. Town of Randolph v. Lyon, 106 Vt. 495, 498, 175 A. 1. A demurrer admits for the purpose of its consideration facts well pleaded. Gignac v. King, 118 Vt. 413, 416, 111 A.2d 42. However, since it is alleged that the written instrument was drawn and executed by the defendant before it was presented to the

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plaintiff for her signature, it is obvious that the oral promises alleged to have been made at the time of presentation could not possibly have been referred to in the writing; hence the wording of the instrument in that respect and whether or not it contained the words 'and other valuable considerations' is without significance.

The defendant assigned the following grounds for its demurrer to the plaintiff's complaint:

'1.

'That under the said written agreement an interest in land was granted the defendant, any by virtue of this instrument the defendant acquired the legal right for a period of eight years to enter upon the parcel so conveyed and to do all acts necessary to remove said dirt and gravel from said parcel, including any percolating waters found in the designated area.

'2.

'(a) The legal effect of the alleged oral promise would be to reduce the entire agreement to the category of an oral contract which cannot be proven in that said contract and alleged promise relate to a contract for an interest in land, and is therefore contrary to the Statute of Frauds, V.S. § 1716(V).

[119 Vt. 198] '(b) The alleged oral promise to indemnify the plaintiff was an additional consideration for the signing of said written agreement. It is contrary to the parol evidence rule in that it places an additional servitude upon the defendant's right to take from the granted premises. Under the written agreement the defendant had the unrestricted right to take from the granted premises, but by the alleged oral promise the defendant's right was restricted to such taking as would not interfere with the defendant's water supply, thereby varying the grant of the written instrument. This amounts to a reservation and exception of all percolating waters found within the grant, thereby varying and contradicting the terms of the written contract.'

Passing over...