114 Ky. 934 | Ky. Ct. App. | 1903
Opinion op thf. court by
— Reversing.
The appellant railroad company undertook to construct and operate a railroad between Cadiz and Gra.cey, in Trigg county, Ky., for which purpose it received subscriptions in money and donations of right of way over the lands of divers citizens of that county. The appellee, C. J. Roach,, gave such right of way over his land, evidenced by the following writing, signed by him,and one L. A. Miller, who had likewise given appellant the right of way over his land: “Office of Cadiz Railroad Company. Cadiz, Ky., Feb’y. 21st, 1901. I hereby donate to the Cadiz Railroad Company a 60-foot right of way through my farm, according to surveys. L. A. Miller, C. J. Roach.” It appears from the record that the route for the railroad had previously been surveyed through appellee’s land, and marked by stakes. After the execution of the writing mentioned, appellant began the work of constructing its road; and, while engaged in cutting and removing timber and undergrowth from the right of way through appellee’s land, the latter met the foreman in charge of appellant’s workmen, and forbade the doing of any further work on his land, and soon thereafter instituted this action to obtain a cancellation of the writing whereby appellant had been granted the right of way
' It is proper to say that the charge of fraud in the procurement of appellee’s signature to the writing-executed by appellee was wholly disproved on the trial, and the .only remaining question for this court to determine is. as to the plea of no consideration.
■ We find that appellee, when asked by appellant’s agents,. Street & Gaines, to give the right of way, said he “wanted the road.” In thus expressing himself, appellees seem to have been actuated by the general desire that inspired his neighbors and friends to contribute to the one common object that- was expected to benefit the people of the county, which was the securing of a railroad. The undertaking originated with the citizens of Cadiz and vicinity, for they alone seem to have furnished by subscription the capital .necessary to the success of the enterprise — some giving money, and others the right of way over their lands. ■ “Where several promise to contribute to a common object, desired by all, the promise of each may be a good consideration for the promise of the others.” Parsons on Contracts, vol. 2, page 452; Twin Creek & Colmanville T. P. Road Co. v. Lancaster, etc., 79 Ky., 552, 3 R., 368; Stovall v. McCutchen & Co., 21 R., 1317, 54 S. W., 969, 47 L. R. A., 287. But whether we are to regard appellee’s grant to appellant of the right of way over his land as binding, •upon the principle of mutuality, or not, we can not regard it as a mere gift of his property to a public charity, for by the building of the road he will derive profit from the increase in the value of his land. Besides, it appears that
There is yet another ground which we think, in all fairness, should operate as an estoppel.to the plea of-no consideration made by appellee. We find from the record that no work had been done by appellant in constructing its road at the time appellee executed the writing granting the right of way over his land, which was February 21, 1901, but after that date work was begun, and continued down to June or July, 1901, during which time the roadbed had been graded from Cadiz, a--distance of seven miles, to a point near appellee’s land; and, as it then became necessary for appellant’s servants to grade and construct the roadbed on appellee’s land, they- went upon the same for that purpose, and had about finished clearing the roadway thereon of timber and other obstructions, when appellee met them, and for the first time advised them of his purpose to repudiate the writing granting the right of way, and by his command the work was then and there stopped. We know of no reason why the law of equitable estoppel should not be made to apply to a case like this. Indeed, we are told in the very admirable work of Thompson on the law of Corporations, vol. 4, sec. 5279, that it may be applied “where a landowner encourages, actively or passively, the appropriation of his land by a corporation for public use;” and we may add that a greater reason exists for its application where the landowner has, in writing, expressly consented to such use of his land.
There is yet another rule of law which holds that “any advantage to promisor or prejudice to promisee” is a sufficient consideration to support the contract. Stapp v.
For the reasons herein given, the judgment of the lower court is reversed, and cause remanded, in order that appellee’s petition may be dismissed. • •