Va. Passenger & Power Co v. Patterson

• Decision Date: 05 June 1905
• Court: Virginia Supreme Court
• Parties: VIRGINIA PASSENGER & POWER CO. v. PATTERSON.

104 Va. 189

51 S.E. 157

VIRGINIA PASSENGER & POWER CO.

v.PATTERSON.

Supreme Court of Appeals of Virginia.

June 5, 1905.

1. Deeds — Escrow — Delivery by Depositary—Communication of Conditions.

Where a deed is delivered in escrow, and the depositary delivers the same to the grantee without any statement of the conditions imposed by the grantor on the delivery, the grantee is not bound by such conditions; but where the depositary, in delivering the deed, states the conditions to the grantee, the latter can claim no right under the deed without complying with the conditions.

2. Trial — Instructions—Superfluous Requests.

A request repeating questions submitted to the jury by the instructions given may be refused.

Error to Circuit Court of City of Richmond.

Action by R. A. Patterson against the Virginia Passenger & Power Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Bryan and Williams, for defendant in error.

CARDWELL, J. R. A. Patterson, defendant in error, plaintiff in the court below, brought this action in the circuit court of Henrico county against the plaintiff in error, the Virginia Passenger & Power Company, defendant below, as the successor in title to the rights, franchises, etc., of the Westhampton Park Railway Company, to recover damages for acts of trespass upon three separate portions of his lands, and at the trial of the cause in the circuit court of the city of Richmond, to which court it had been removed, recovered a verdict and judgment for $1,500, to which judgment a writ of error was awarded by this court.

Patterson was the owner of two certain tracts of land, two miles from the city of Richmond, at the western terminus of Grove Road—the first lying partly on the north side of Grove Road, running back eastwardly to Patterson avenue, and known as the "Mitchell Place, " and the second lying between the Westham or Cary Street Road and Patterson avenue, and known as the "Wrenn Place"— which two tracts are adjacent. and constitute together a single tract, of about 100 acres. Together with other landowners in that vicini ty, Patterson was one of the incorporators of the Westhampton Park Railway Company, chartered for the purpose of building an electric railway from the city of Richmond to the Green's Mill property, located at a point several miles in the county of Henrico. Efforts on the part of these original incorporators to finance and construct through a certain agency the contemplated electric railway line having failed, Patterson was approached by one Robertson, on behalf of the Westhampton Park Railway Company, with the request that he (Patterson) grant a right of way through his land, upon which to lay a track and operate electric cars between a point upon an established line near the city of Richmond and Westhampton Park, or the Green's Mill property, in Henrico county; and, as an inducement to Patterson to accept this proposition, various representations were made by Robertson as to the equipment and schedule of the proposed road, tending to encourage travel, the development of property along its line, and its enhancement in value. Relying upon these representations, Patterson executed a deed conveying to the "Westhampton Railway Co." a strip of ground 60eet in width, beginning at the Wrenn place, where the Grove Road terminates, and running through the Wrenn place to the tract known as "Reveille, " upon which Patterson resided. No money consideration was paid for this deed, it having been made solely in consideration of the representations made by Robertson, and the promise and agreement entered into at the time that the company constructing the railway line upon said 60-foot strip of land would also construct a substantial driveway on both sides of its tracks, satisfactory in all respects to Patterson, with such crossings and culverts as he might require, and without injury to, or material inconvenience in the use of, his property.

The declaration contains three counts, charging separate acts of trespass upon three distinct portions of Patterson's property, the first alone of which did the plaintiff in error, by virtue of the deed above mentioned or otherwise, have even the semblance of right to invade; the acts done upon the remaining two being wholly unauthorized.

The route first contemplated was westward from the city of Richmond upon the extension of Grove avenue, and along the Grove Road to Patterson's property, thence along rights of way through various tracts to what is known as the "Three Chop Road"; but it was afterwards determined to run out Floyd avenue, extended, as far as that was a public highway, then along rights of way forming an extension of Floyd avenue until Patterson's property was reached, then northwardly across the eastern end of his property (the Wrenn place) to the Grove Road. Lying in the way of this second selected route was the refusal of the Richmond, Fredericksburg & Potomac Railroad Company to allow theproposed electric road to cross its "Belt Line" track at grade, and it was thereupon concluded to go under that road, necessitating a cut of some 14 or 15 feet, at the bottom of which water was encountered in such volume that it could not be overcome by use of pumps, and ditching had to be resorted to a...