51 Ind. App. 159 | Ind. Ct. App. | 1911
— Appellant railroad company instituted condemnation proceedings to acquire a right of way for its railroad across the farm of appellee. Appraisers were appointed, who filed a report, awarding damages in the sum of $850, to which award exceptions were filed by appellee. Appellant paid the amount of the award to the clerk of the court, took possession of the right of way, and constructed its road thereon, and in so doing it built a grade of considerable height just east of the house located on appellee’s land. The orchard on appellee’s farm was located east of the house, as was also a valuable spring, which had been used in connection with the residence on the farm, and this grade was located between the spring and the house, and so as to leave the larger part of the orchard east of such grade.
Before the case was tried on the exceptions a compromise was reached, by the terms of which appellee conveyed to appellant by deed the right of way across his farm, and appellant paid to appellee $650 in addition to the amount already paid into the clerk’s office, making a total of $1,500. It is claimed by appellee that at the time the negotiations for the settlement were had, appellant agreed that, in consideration of the execution of the deed for the right of way, it would pay to him the sum of $1,500, and in addition thereto would construct and maintain stone or cement steps or approaches to its grade, immediately east of his residence, so as to enable pedestrians to pass over said grade in going between the house of appellant and the spring and orchard, which were located east of said grade.
This action was brought in the Monroe Circuit Court to recover damages on account of the failure of appellant to perform that part of the agreement relating to the construction of the steps. A trial was had, which resulted in a judgment in favor of appellee, from which judgment an appeal was taken to this court.
The complaint does not aver that the contract in reference to the building of the steps was in writing, and the
Several errors are assigned which present this question in different ways. The determination of this question will therefore be decisive of all questions presented by the assignment of errors, and a separate discussion of each is unnecessary.
It therefore becomes necessary to determine whether the alleged agreement in reference to the construction of the steps has the effect, if enforced, of creating an easement in favor of appellee in the land conveyed by him to appellant for right of way purposes.
It is claimed by appellant that the alleged agreement
The effect of this statute is to reserve to the landowner across whose land a right of way for railroad purposes has been acquired, the right to cross that portion of land occupied for such purposes. This right is given by statute, and exists in the absence of any contract on the subject. By virtue of this statute, appellee had a right to a passageway over and across said right of way leading from the portion of his land on one side of the right of way to that on the opposite side, and the agreement of the railroad company, alleged in the complaint, would not have the effect to create this right, but was simply intended to provide him with a convenient way by which it could be exercised. The contract did not, therefore, create any easement or interest in the land conveyed for right of way purposes, and was not required by the statute of frauds to be in writing.
It was said in the case of Levering v. Shockey (1885), 100 Ind. 558: ‘ ‘ The actual consideration of a deed may be shown by parol evidence. * * * Either party may show for any purpose, except to defeat its operation as a valid and effective grant, the true consideration of a deed, although it be entirely different from that expressed in the deed. * * *
Many other cases might be cited as sustaining this proposition, but the rule is so well settled that we deem it unnecessary. In the case of Hays v. Peck, supra, the court says: “It is an elementary doctrine that the consideration of a deed may be shown by parol, and it is impossible to give effect to this doctrine without permitting the parties to prove what agreement as to the consideration preceded the execution of the deed. The agreement as to the consideration necessarily precedes the execution of the deed, and the fact that the consideration was agreed upon some time prior to the delivery of the deed does not preclude the grantor from showing what constituted the consideration of the deed. To hold otherwise would be to run counter to the rudimentary doctrine that it is always competent to prove the actual consideration yielded for the conveyance of land. With few exceptions the rule is, that the preliminary negotiations are merged in the deed. * * * This doctrine, however, does not apply to the consideration, except, perhaps, where the deed specifically sets forth the consideration. Where, however, the consideration is merely stated in general terms, the doctrine does not apply. The case of Ice v. Ball, supra [(1885), 102 Ind. 42, 1 N. E. 66], is not to be considered as deciding that where the deed states the consideration in general terms, the grantee is precluded from proving the true consideration, even though it may have been agreed upon prior to the execution of the deed. It is,
The conclusion we have reached on this question is decisive on every question presented by this appeal. There was no error in overruling appellant’s demurrer to the complaint, and. the oral evidence was properly admitted, tending to prove the contract averred in the complaint. The sufficiency of the evidence to sustain the finding of facts is not questioned, and the facts found are abundantly supported by the evidence. The court committed no error in overruling appellant’s motion for a new trial. There was no error in the conclusions of law as stated by the court on the facts found, and the court properly refused to state other and further conclusions of law, as requested by appellant.
Finding no error in the record, the judgment is affirmed.
Note. — Reported in 95 N. E. 442. See, also, under (1) 20 Oye. 215; (2) 33 Cye. .301; (3) 17 Oyc. 653. As to the admissibility of outside evidence to vary deed, see 11 Am. St. 844. For a discussion of the admissibility of parol evidence to show an agreement between the parties at the time of the execution of a deed of land to a railroad for a right of way or depot purposes, see 17 Ann. Cas. 863.