65 Neb. 680 | Neb. | 1902
The plaintiff is the owner of the north half of the northeast quarter of section 32, township 8 north of range 6, and the west half, and the west half of the southeast quarter and the southwest quarter of the northeast quarter of section 8, township 7, range 6, in Lancaster county. These two tracts are a mile or more apart, and at the time of the contract hereinafter set out the appellant contemplated building its line of railway across the land, and sought to secure a right of way through the same from the appellee. The effect of constructing a railway over the premises without affording plaintiff any means of passing beneath the roadbed would be to prevent the appellee from going from one portion of his farm to another without crossing the railroad track, and he desired the company to enter into an agreement that it would, in addition to the money to be paid for the right of way, construct and maintain two under-track crossings on the premises above described, so as to afford him facilities for passing beneath the railroad track with ordinax*y farm wagons loaded with hay or
“Whereas Peter Gloe and wife have this day by deed conveyed to the Chicago, Rock Island & Pacific Railway Company, a strip of land for right of way purposes described in said deed for the consideration of $2,625, and whereas said railway company has also agreed as a part of the consideration for the sale of said strip of land, that it will, before its line of railroad over and across said line is completed and ready for use, construct and erect an under-track crossing on the N. \ of S. E. -‡ of section 32, township 8, range 6 east, and also an under-track crossing on the S. W. of section 8, township 7, range 6 east, said under-track crossings to be not less than 12 ft. wide at the bottom and the first of the above mentioned crossings to be not less than 14 ft., high in the clear and the second of the above-mentioned crossings to be not less than 12 ft. high in the clear, now if said company shall fall to construct and erect said under-track crossings as aforesaid, then it shall pay to the said Peter Gloe, his heirs or assigns the further sum of $1,000; and if said company shall fail to construct and erect either one of said crossings and shall construct and erect one, then it shall pay to said Peter Gloe, his heirs or assigns, the sum of $500. This agreement shall be taken and construed as a part of the purchase price of said land conveyed for right of way purposes. Dated this 23d day of September, A. D. 1892.”
The agreement was signed on behalf of the railway company by O. H. Thompson, who conducted the entire negotiation made on the part of the company, and who alone represented the company in procuring the right of way deeds. On the same day on which the contract was made Gloe executed deeds for right of way through said premises, and delivered them to the company, and thereafter the roadbed was constructed, the company putting in pile bridges, affording the appellee the under-track crossings provided for in the contract. These crossings were maintained as originally constructed until about August, 1899,
It will be observed that the land in section 32 is dé-, scribed as the north half of the southeast quarter, whereas the land actually owned by the plaintiff, and the land through which a right of way was granted to the defendant, is the north half of the northeast quarter, and it is alleged in the petition that “in reducing said agreement to writing, either by mistake or design on the part of the defendant, who wrote or caused to be written the agreement that was written it was provided that the said defendant should construct and erect an under-track crossing on the north half of the southeast quarter of section 32, township 8, range 6, when in fact this plaintiff did not agree' to convey a right of way over or across the north half of the southeast quarter of said reetion 32, nor did the plaintiff own, nor was he in possession of the north half of the southeast quarter of said section 32, but the under-track crossing which defendant did agree to construct and maintain as aforesaid was to be on the north half of the northeast quarter of section 32. And also by mistake or design on the part of the defendant, or its representative, who wrote or caused to be written said agreement, that portion
The appellant insists upon the well-established rule that in the absence of fraud or mistake, parol evidence is not admissible to vary or change the terms of a written contract, and that in pleading fraud it is necessary to set out the facts relied upon for relief; and it is urged that the
It is vigorously contended that the contract in question is of such a nature that a court of equity will not enforce its performance. It is said that the undisputed evidence establishes that the necessities of public travel, and a due regard for public safety, render it imperative that the bridges originally constructed, and which the appellee has used as under-crossings, shall be removed, and supplanted by constructions of the character of those proposed by the company; and it is said that, as a matter of law, contracts
In Storer v. Great W. R. Co., 2 Younge & Collyer, Ch. [Eng.], 48, the plaintiff had sold to the railway company the right of way through his pleasure grounds, and the company had agreed, in order that he might have the full use of his adjoining land, that it would make an archway under its road-bed large enough for a wagon loaded' with hay to pass witli facility. The court decreed that the archway should be made. The vice-chancellor said that it was competent for that court to enforce the specific performance of a contract by the defendant to do defined work upon its own property, in the performance of which the plaintiff has a material interest, and one which can not be compensated in damage.
Price v. Mayor, 4 Hare [Eng.], 506, is a case where the contract for certain improvements was specifically enforced. It Avas there said: “The contract Avas, that the corporation, having purchased the plaintiff’s land, should, at their oavu expense, make a street, and also a market. Under this contract, the corporation have taken possession of the land, and converted it, and, having had the benefit of the contract in specie, as far as they are concerned, I need not say that the court will go to any length Avhich it can to compel them to perform the contract in specie.”
And in Stuyvesant v. Mayor, 11 Pai. Ch. [N. Y.], 414, 427, Chancellor Walworth,in the course of his opinion, says: “The true rale on the subject of decreeing the specific performance of a coArenant in such cases, is, that where, from the nature of the relief sought, performance
The defendant procured from the plaintiff a conveyance of the right of way, covenanting as part consideration therefor to make these two under-track crossings to accommodate the plaintiff in the use vf his land. It has used the right of way and constructed its roadbed across the premises. The evidence is conclusive that the road-bed is so constructed that the plaintiff has to drive along the track a mile or more before he can cross it, and then return upon the other side to reach his own premises. Without these under-track crossings, his land is greatly depreciated in value, and he is put to serious inconvenience in working the same. He is irreparably injured in the enjoyment of his property unless the defendant performs its agreement, and affords him these under-track crossings for which he contracted in consideration of conveying away his land. Having taken his land and appropriated it to a gttasi-public use, the court will compel a performance of the agreement that induced the conveyance.
We recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.