Louisville, Railway Co. v. Taylor, 96 Ky. 241

Louisville, Railway Co. v. Taylor

96 Ky. 241 | Ky. Ct. App. | 1894

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

May 17, 1887, E. P. Taylor conveyed to Louisville, 3t. Louis and Texas Railway Company a right of way over a strip of land through three adjacent tracts of 197, 180 and 98 acres, upon which its railroad, extending from Louisville to Henderson, was located. But May, 1891, he brought an action to recover said strip, although the entire line of road had then been completed and was in operation.

In his petition he stated substantially that the consideration for the conveyance expressed in the writing was that defendant agreed to build and keep in repair a fence through his land on both sides of the railroad made of slats and wire; to build and keep in good repair stock-gaps at reasonable distances apart; to build within a reasonable time, and keep in repair, a good substantial depot and switch on his land where the railroad intersects the Iceland road, at which all passing trains should stop when flagged or signaled ; and that he and his family were to have the right to travel on the line of road free of charge. But that though defendant, in virtue alone of that conveyance, entered and built upon said strip and has since used the railroad, it has refused to perform either undertaking which constituted consideration of the conveyance.

As the railroad was completed and put in operation from one terminal point to the other with knowledge of and without objection by plaintiff, it is manifest the action for recovery of the strip of land could not have been maintained. And he, abandoning it in the *245form it was originally brought, filed an amended petition in which, after setting up the same alleged facts, asked judgment for specific performance of the contract, but if that could not be rendered and enforced, then judgment for damages for the alleged breach. And on his motion the action was transferred to equity, when, May 2, 1891, judgment was rendered which, in substance, gave defendant until August 1, 1891, in which to perform the undertakings stipulated in the contract, and the master commissioner was directed, in case of its continued failure, to ascertain and report the damages sustained by the plaintiff by reason thereof.

From that judgment an appeal was prosecuted to this court, but dismissed because prematurely taken. Upon return of the case an order was made directing ■the commissioner to take further proof as to amount of damage sustained by the plaintiff, and upon the whole evidence a final judgment was rendered in favor of plaintiff for six thousand four hundred and six dollars and fifty-five cents.

It appears that the conveyance of May, 1887, was signed by E. P. Taylor, and by R. R. Pierce and A. D. Powers as attesting witnesses. But it was averred in answer of defendant and attempted to be proved that, though it was, after being so signed, left by plaintiff in possession of Powers, it was a mere proposition, never accepted by the company, and consequently not binding on it. Both Pierce and Powers were agents of the company to procure release by land-owners of right of way for the railroad, and it seems to us the evidence shows they were general agents, authorized to make *246contracts, like the one in question. But whether they were or not, we are satisfied plaintiff Taylor permitted the company to enter upon and appropriate the slip of Hand, which was done soon after he made the conveyance, believing and induced by conduct of the company and its agents to believe the conveyance was accepted and would be treated as a completed contract binding upon both parties. For it was, after being signed, kept in possession of the company for- about six months, and until the road had been graded over the entire strip of land, without any notice whatever to Taylor that it was not accepted. It seems to us, therefore, the company was estopped to disaffirm the contract or evade its own undertakings, which constituted the consideration. Whether specific performance might have been enforced by the chancellor is not now necessary to decide, because neither party asks for such decision. And the only question before us, or about which there could, as the record stands, be any serious discussion, is as to amount of damages found and adjudged by the lower court.

It appears that in pursuance of the judgment of May, 1891, the master commissioner, September 15, 1891, filed a report showing amount of damages sustained by plaintiff to be six thousand dollars, differing from the sum finally adjudged only four hundred and six dollars and fifty-five cents.

In the estimate of the master commissioner was included the sum of two thousand seven hundred dollars, damages to the three tracts of land, and counsel now argue that the amount finally adjudged by the court was made up partly of the same items, and notwith*247standing they were held in Louisville, &c., Railroad Company v. Neafus, &c., 93 Ky., 53, to be proper elements of damage in such case as this, the judgment appealed from is erroneous in that respect, and ought to be reversed and that case overruled. As the report of the commissioner mentioned was made pending appeal to this court from the judgment of May, 1891, it ought to have been, and was, in fact, disregarded by the lower court. So upon return of the case from this court it was re-referred to the commissioner to hear and report additional evidence, which he did, without undertaking to estimate amount of damages sustained by plaintiff; and upon the whole evidence the lower court rendered the judgment now appealed from. It does not, therefore, follow the sum of damages to the three tracts was included in or forms part of the amount so adjudged. For the evidence shows that independent of those elements, plaintiff was damaged by failure of defendant to perform its undertaking more than the sum actually found and adjudged by the court.

Only a portion of the fence the company agreed to build and keep in repair was ever made; it refused to transport the plaintiff and his family over the road free of charge, and all that has been done in compliance of its undertaking to erect and keep in repair a good substantial depot and switch at the place mentioned, has been the building of a short uncovered platform, costing not exceeding twenty-five dollars. It is .true a side-track has been made there, but that is of no advantage to plaintiff without a permanent depot for passengers and freight; and the conduct of the *248company gives no assurance there ever will be a depot, permanently established; lor not only has it denied its obligation to do so, but when given by the lower court an election to comply with the contract, it either stubbornly, or with intention to retain the right to abandon the place as a station, refused to erect a depot building, which might have been done at a cost not exceeding eight hundred dollars. It seems to us this can not be regarded otherwise than a case where-the owner is deprived of his land for use of a railroad track by means of deliberate promises and undertakings by a company, which it never intended to perform unless compelled to do so after tedious and useless litigation.

We do not think we are authorized to disregard the judgment of the chancellor, and reverse because the amount found is too little, nor because it is too-much, even if the elements of damage in question were included in his estimate; for either party might have had the issue tried by a jury, and as neither-moved for such trial, the finding of the court must be treated in accordance with previous decisions of this court construing section 10, Civil Code, as finding of a properly instructed jury.

Judgment affirmed.