39 Vt. 275 | Vt. | 1867
The opinion of the court was delivered by
The bill in this case asks for a perpetual injunction upon the action of ejectment which is pending in the county court in favor of said McAuley v. The Western Vt. R. R. Co. and Clark.
The case before us embodies and presents the entire subject matter of that action at law ; and, in the relation the orators sustain to that subject matter, it is conceded that they have properly resorted to the court of chancery for the adjudication and final determination of the litigation.
We adopt and reassert the doctrine propounded in the case of McAuley v. The Western Vt. R. R. Co. and Clarke, 33 Vt. 311, that if the land owner foregoes his right to have his damages ascertained
This is as far as we are called upon in the px’esent case to discuss1 or pronounce the law, in the view that we take of the evidence, and of the conclusions of fact that we educe from it.
McAuley agreed in writing to take his damages- in corporation! stock. It was-obviously the understanding of all concerned at the time he signed that agreement, that the ascertainment and payment of' his land damages Were not to he made before the work on the road through his land was to begin.
The evidence in behalf of the orators, standing by itself,, would leave no doubt that the work of making the road through, the defendant's land, was commenced and proceeded with for a considerable time with his consent ^ and that, when he first forbid the workmen to proceed with the work, it was not for the reason that he had not consented to the work being begun, and thus far proseeuted •, nor because he had been misled by Mr. Deming into the signing of the agreement to take his land damages in stock nor because he had not got his pay for his damages ;. but it was because the Irishmen were about'to spoil a valuable marble boulder that he wished and'claimed the right to save and work up for his own benefit.
The defendant claims and testifies that he was misled by Mr. Deming’s representations and conduct into signing that agreement j and that, as soon as he discovered the misadventure, he repudiated the agreement, and forbid to Mr. Deming anything being done on his land till his damages should be ascertained and paid.
The precise point of the alleged imposition is, that the road was to run the west side of a certain elm tree, instead of the east, as an indispensible condition to his agreeing to take his land damages in
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( The analysis and discussion of the evidence is omitted by order of the judge.)
The contradiction the defendant encounters in Hill; the disparity between his account and that of Canfield and Cochrane as to material facts ; the fact, shown by the evidence, that, aside from his own testimony, he never claimed to any body that he had been deceived as to the location of the road as bearing on his agreement to take his pay of land damages in stock ; the fact that, by his own testimony, he does not appear to have made that the ground of forbidding the work on his land to proceed; the character of some parts of his testimony already commented upon ; and the singularity of some of the facts testified by him in their relations and combinations, lead us not to find that he was procured to sign said agreement by any falsehood or fraudulent withholding of facts by Mr. Deming as to the location of the road.
Our belief, from all that appears in the case is, that the only point made by the defendant or condition talked about, upon which he would agree to take his land damages in stock, was, that the railroad should be located through the west village instead of East Arlington ; that the word sent by Mr. Deming through Mr. Brown meant this, and the defendant so understood it, and, with this understanding.
In the view we take of the law as applicable to the facts shown by the evidence, it becomes needless to consider rights that might appertain to, and be asserted by, the present orators, by reason of the relation they hold as mortgagees in trust, under a forcelosed and unredeemed mortgage. It is sufficient for the purposes of this case to permit them to stand upon the same rights as might be asserted by the corporation if the mortgage had not intervened. We hold that Mr. McAuley became obligated by valid agreement to take his land damages in stock, and that, as concurrent with said agreement, it was understood between himself and the railroad company that the making of the road through his land might be prosecuted before the appraisal and payment of the damages were made ; that at some convenient time thereafter said damages were to be duly appraised in the mode prescribed in the charter and statutes ; and when so appraised the amount was to be paid to him in the stock of the corporation ; that in pursuance of said agreement and understanding, and with the consent of the defendant, McAuley, the making of the road through his land was commenced, prosecuted and completed, and that he became thereby entitled and bound to have his pay in said stock, and was not, and is not, entitled to any lien or claim upon the road way', as the same has been surveyed and located through his land as security
The decree of the chancellor is reversed, and the case is remanded to the court of chancery, with a mandate that by decree of said court the said defendant, McAuley, be perpetually enjoined from the further prosecution of said action of ejectment, and from all further interference with or occupation of said land, and from all disturbance of the complainants, and those holding or entitled under them, in their possession and occupation thereof for the purposes of said road, on account of any right or claim for land damages accrued by reason of the location, construction and use of said railroad through the land of said McAuley. And that the orators recover their costs of this suit, to be duly taxed and allowed against the said McAuley.
