| Ill. | Jun 19, 1894
delivered the opinion of the Court:
It is first claimed by the railroad company that the court had no jurisdiction to grant the relief sought by the cross-bill, — that the remedy is cognizable only at law. Where a railroad company is authorized to take private property for a public use, under its charter, the mode of procedure is laid down in our statute entitled “Eminent Domain.” Under that statute private property can not be taken or damaged without just compensation. Such compensation is required to be ascertained by a jury. Where the parties can not agree upon the amount to be paid, the party authorized to take private property is required to apply to the judge of the circuit or county court, either in vacation or term time, by petition, setting forth his or her authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested therein, etc. The statute provides for service of process, and for calling a jury, before whom the question of just compensation shall be tried. The proceeding authorized is one at law. In this case, as has been seen, the amount the land owner was entitled .to recover was determined in equity. In the first place, however, the land owner brought an action at law, but the defendant in that action, the railroad company, filed a bill in equity to enjoin its prosecution, and prayed for a specific performance of an alleged agreement, in which the land owner had agreed, upon certain terms and conditions, to convey the right of way. The jurisdiction of a court of equity was thus invoked by the railroad company. It sought a decree compelling the land owner to convey to it the right of way over certain lands owned by her, which the railroad company had taken for its right of way.
While it may he true that a court of equity has no jurisdiction to determine the compensation to be paid for lands proposed to be taken for railroad purposes where a bill has been filed for that purpose alone, yet where the land owner has been brought into a court of equity by the railroad company after it has taken and appropriated the lands for railroad purposes, and it prays for a decree requiring the land owner to convey the lands thus taken, may not the land owner insist upon being paid for the land taken and damaged, and ask the court, by cross-bill, to have the amount ascertained and determined, as was done here ?
The cross-bill, in express terms, charged the complainant in the original bill with fraud in procuring the agreement upon which it predicated its bill for a specific performance. It is a familiar rule that courts of equity have concurrent jurisdiction with courts of law on questions of fraud, and the court which first acquires jurisdiction will retain it until the litigation is finished. If, therefore, the agreement was procured by fraud, no reason is perceived why a court of equity might not investigate that question, and grant such relief as the equity of the transaction demanded. So, also, if the complainant, the railroad company, held a valid contract for a deed for the right of way, a court of equity was the appropriate tribunal to decree a deed in pursuance of the contract. Thus it appears that a court of equity had jurisdiction of the relief prayed for in the bill, and it also had jurisdiction of the question of fraud presented by the cross-bill. Being clothed with authority to adjudicate upon these matters, the court had the right, if necessary, to do complete justice between the parties, and to settle and determine legal as well as equitable rights, as held in Tunesma v. Schuttler, 114 Ill. 164.
The rule seems to be well established that where equity acquires jurisdiction it will retain the case, and settle all questions incident to the relief sought in the bill. Stickney v. Goudy, 132 Ill. 213" date_filed="1890-03-29" court="Ill." case_name="Stickney v. Goudy">132 Ill. 213, is a case in point. It is there said: “Where a court of equity has jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to a final determination of all the matters at issue. For this reason, if the controversy contains any equitable feature, or requires any purely equitable relief which would belong to the exclusive jurisdiction, or involves any matter pertaining to the concurrent jurisdiction, by means of which a court of equity would acquire, as it were, a partial cognizance of it, the court may go on to a complete adjudication, and may thus establish purely legal remedies, which would otherwise be beyond the scope of its authority.”
But it is claimed that appellee was not entitled to equitable relief, and a failure to establish equitable relief precluded a recovery of compensation for the land taken. It will be remembered that the contract signed by appellee, in which she agreed to convey the right of way, is silent in regard to the land upon which the road should be constructed, and appellee claims that a definite line was agreed upon between her and the agent of the railroad company before she signed the agreement, and the road was to be located on that line, and that the agreement for a release of the right of way was executed on the faith of that agreement. It appears that there was a slough, known as “Dry Slough,” running through appellee’s lands, and appellee’s son, who was in charge of her lands at the time, desired the road to be located on the banks of that slough. Winstead D. Walton testified that he had charge of the land. In February, 1889, he met Captain Nesmith, as- , sistant engineer, and others, to confer about the right of way. At that time a preliminary survey had been made. He testified : “I knew where it ran. I told them then, that in order to get the right of way they would have to be on the bank of the slough when they struck our farm from the south side, and keep the slough bank, and go out west of the house, at the north side of the farm. The engineer, Captain Nesmith, said that he knew exactly where I meant, and it was just about as good a location for the road and much better for the farm. We agreed to meet up here at town the next day and give them the right of way, with the understanding that they would make that change. I had a conversation with my mother before she signed the agreement. I told her that they had agreed to place the road on the bank of the slough, where I wanted it, and repeated to her what the captain said about that being the place for the road.”
Mrs. S. A. Walton testified: “I asked him (Nesmith) who represented the company, and who would be responsible for where the road went. Nesmith said he was. I told him I would not sign it if he did not put it where Winstead wanted it. Nesmith promised to put it where Winstead wanted it. I wouldn’t have signed it if he had not promised it. Nesmith knew where the road was to go, — we all understood it. He said that there’s where they would put it, because it would be as much to their advantage as mine. I did not give my consent to the company to locate the road where they did. My consent was only for it to go up the slough.”
Edward B. Walton testified: “Was present when my mother signed the agreement. Nesmith said it was to be up the slough bank, fifty feet from the center of the slough, or about that. A survey had been made and Nesmith had a plat with him. It showed the line out in the field, but he (Nesmith) said that did not make any difference about where it showed it, but said they would go up the slough bank. ”
There is other evidence in the record bearing on this question. Nesmith, the assistant engineer, who was acting for the railroad company, confirms the evidence of «appellee and her sons. Among other things he testified: “Was detailed to go with citizens’ committee to assist in procuring right of way. With them visited the complainant. The preliminary survey had been made at that time, and think the plat was shown her. The complainant wished the line of the road to be as nearly on the bank of the slough as possible, and I told her that I was instructed to change the line, keeping as near the Dry slough as possible without using reverse curves.”
From the evidence it is plain that appellee executed the agreement to release the right of way with the understanding and upon the express agreement of the railway company that tbe line of road should be changed, and that it should be located through her farm on the banks of the Dry slough, but after the written release was obtained the promises and agreement upon which it was obtained were disregarded, and the road was constructed on a different route, and the railroad company now seeks in a court of equity to compel the execution of a deed conveying the right of way for lands appellee never agreed to convey. The agreement for the right of way was obtained upon the express representation of Nesmith, the agent of the railroad company that the line of the road would be changed so that it would conform to her wishes, and be located along the line of the Dry slough. If this representation had not been made the release would not have been executed. The engineer testified that it would have been better engineering to have placed the road as nearly on the bank of the slough as possible without using reverse curves. This was not, however, done, and the evidence would seem to justify the conclusion that the railroad company did not intend to perform its agreement to change the location of the road at the time it was made. There is some evidence in the record that the route along the slough was impracticable, but the testimony of Nesmith in this regard is not overcome.
It is, howeverj claimed, that the representation made to appellee establishes only a failure of intention on the part of the railway company to make the change of route, and it is said a representation, although it may be false as to a matter of intention, does not constitute fraud, and in support of this position we are referred to Kerr on Fraud and Mistake, page 88, where the author says: “As distinguished from a false representation of a fact, the false representation as to a matter of intention not amounting to a matter of fact, though it may have influenced a transaction, is not a fraud at law, nor does it afford grounds for relief in equity.” It is, however, plain that the representations here involved do not fall within the rule here indicated by the author. Here was an agreement to locate the road at a definite specified place on the part of the railroad company. It was not a mere statement of an intention to do an act in the future, but a contract to change the location, in consideration of which the appellee agreed to give the right of way.
It is also claimed that parol evidence was not admissible to vary or change the terms of the written contract executed by appellee. Where parties have reduced their contract to writing, the rule is well established that parol evidence is not admissible to vary or change the terms of the contract. But this rule of evidence has no application here. Where it is sought to impeach a written contract for fraud, in a court of equity, parol evidence is admissible for that purpose. (VanBuskirk v. Day, 32 Ill. 260" date_filed="1863-04-15" court="Ill." case_name="Van Buskirk v. Day">32 Ill. 260 ; Race v. Weston, 86 id. 92 ; Wilson v. Hacker, 85 id. 352.) This rule is well established.
Complaint is also made in regard to the amount of damages recovered by appellee, but upon an examination of the record we find the decree sustained by the evidence. Indeed, under the evidence a much larger amount might have been found by the jury. Moreover, the theory upon which the damages were assessed was so favorable to appellant that it is in no position to complain. The court held, and on this theory the damages were awarded, that inasmuch as appellee had given the railroad company the right of way over her lands on a certain line, and the company having selected a different route, appellee was only entitled to recover the difference in damages, if any, between the two routes.
The decree of the circuit court will be affirmed.
Decree affirmed.