McAulay v. Western Vermont Railroad, 33 Vt. 311

McAulay v. Western Vermont Railroad

33 Vt. 311 | Vt. | 1860

Redfield, Ch. J.

The commencement of the construction of the defendant’s road was before damages were appraised, which was on the 4th of September, 1851. The location and survey of the road was of course before work began, and so is the date of the writing signed by the plaintiff. But it was not, in fact, signed by the plaintiff until about the time of the first appraisal. The construction of the road was completed in 1851, and it immediately went into operation and has so continued until the present time.

The first question which arose in the trial of the action was *320in relation to the declarations of Martin C. Deming, a director of the company, as to his knowledge of the claim of the plaintiff, that the road should be located in a particular place, or else, that he would not take stock for his land damages, and that it had not been so located, and his consequent expectation that he would not accept the stock, the declarations being before the alleged fraud and deception practiced by said Deming, in inducing the plaintiff, as he claims, to sign the agreement to accept stock. We do not regard these declarations as mere admissions of the agent of the company. They are facts in themselves, that is knowledge of the location of the road, and that it was in a place, where the plaintiff did not desire it, and that if its location there was known to him, he would not accept the stock of the company for damages. If, instead of these admissions or declarations, it had been shown that some person gave Deming notice of these facts near the time of his alleged fraud practiced upon the plaintiff, there could be no question of the importance and competency of the evidence. But the real inquiry is whether the fact that at the time he induced the plaintiff to sign the agreement he knew that the road was located where the plaintiff did not desire it, and represented to the plaintiff that it was laid in another place, and where he did desire it, in order to obtain the plaintiff’s signature to the agreement, is competent to go to the jury. The most satisfactory evidence of such knowledge is his own declaration to that effect. Some one might have informed Deming of this fact, and he not understand them, or he might possibly understand them precisely contrary to the fact. But there is no possibility that he would state a fact of which he had no knowledge.

II. It being admitted, as it seems to be, that the plaintiff had full knowledge of the pi’oceedings of the company to locate and construct their road upon his land, before and during all the time of the construction, and that he did not interfere in any way to prevent the occupation of the land for the purposes of the road, otherwise than by forbidding the hands working on the road until his damages were paid, and that on a single occasion, it becomes an important inquiry, whether he can now maintain ejectment for the land, by reason of the non-payment of his damages. This is certainly a question of some practical importance, *321but does not appear to have been distinctly submitted, in any form, to the jury, although the requests of the defendants’ counsel sufficiently point towards the question. ‘

There can be no doubt, upon the state of facts detailed in the case, that the jury must have come to the conclusion that the plaintiff made no objecfion to having the road constructed where it was located, except to the workmen upon a single occasion. This is not sufficient objection, for two reasons. First, it was not made in the proper quarter to the proper agents of the company. These workmen were in no sense either the agents or the servants of the company; they were the mere servants of the contractor. And in addition to this, being upon a single occasion, it is quite susceptible of the construction, that upon all other occasions, the» plaintiff not only made no remonstrances, but that he virtually assented to the construction and operation of the road. The fact that no effectual steps were taken either to stop the proceedings of the company, or enforce the payment of land damages, for a great number of years and even for a considerable period after the final assessment, confirms this view. Under this state of facts the question arises, can the plaintiff maintain ejectment until his land damages are paid, or the company have acquired title by the statute of limitations ? This seems to have been the view of the plaintiff in bringing the action, and it seems to have been viewed much in the same light at the trial. But we are unable to adopt this conclusion.

It is undoubtedly true that according to our general railroad statutes and the special charters in this State, .the payment or deposit of the amount of the land damages, assessed or agreed, is a condition precedent to the vesting of the title, or of any right in the company to construct their road, and that if they proceed in such construction without this, they are trespassers, and this has been repeatedly so held by this court.

This may have led to the misapprehension in the present case. But it is certainly a very serious misapprehension. In these great public works the shortest period of clear acquiescence, so.as fairly to lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form as to stop the company in *322the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire important interests in its continuance. The party does not, of course, lose his claim or the right to enforce it, in all proper inodes. He may possibly have some rights analogous to the vendor’s lien in England, and here, until the legislature cut it off. But it is certain, according to the English decisions, that he cannot stop the works and especially the trains upon the road, if he has, in any sense, for the shortest period, clearly given the company, either by his express assent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation.

« And laying the written agreement wholly out of the case, there is a good deal in the case which looks as if the company were fairly justified in supposing the plaintiff did not object, and was therefore willing that they should go forward in the construction of their road, if they would only agree to pay him the money for his land damages. He does not seem to have insisted that the first appraisal should be deposited during the pendency of the appeal, and before the work proceeded farther. His great desire seems to have been that the damages should be agreed upon and that he should be released from all claim under the written agreement to accept stock. To this extent his remonstrances were loud and sufficiently intelligible. And if it should appear that he also made himself well understood by the company, or their proper agents, acting on their behalf in these matters, at the time, in regard, to insisting upon the payment or deposit of his land damages, according to the statute and before the works proceeded, and that the company understood, at the time, that they were proceeding in defiance of his remonstrances, and upon their own responsibility merely, from first to last, it is certainly not necessary to assert here that they are not liable now in trespass and ejectment. The English courts, certainly those of equity, do not give much countenance to the idea of stopping the operation of a railway, for any mere informality in the organization of the company, or in the construction of their road, or in taking land. Lord Cottenham, Chancellor, says, in Duke of Leeds v. Earl of Amherst, 2 Phill. ch. cases 117, 123: “If a *323party, having a right, stands .by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain.”

In the present case it is not precisely a parol license under which the company claim to have built the road. Their record title to the land would be complete, with the addition of the tact of payment, or the deposit of the amount of the appraisal. That is a fact resting always in pais. And being so, although a condition precedent, it may be waived by the party in whose favor it exists, and this by parol merely. The waiver may be by parol as well as the performance. And the waiver may be partial as well as total. If there was then a waiver in fact, either express or implied by acquiescence in the proceedings of the company, to the extent of not insisting upon pre-payment as a condition precedent, but consenting to let the damages be and remain a mere debt, with or without a lien upon the road bed, as the law may turn out to be, then it is impossible to regard the defendants, in any sense, in the light of trespassers, or liable in ejectment. One might as well expect to assert a mechanic’s lien upon railway structures, which cannot be done. In Dunn v. North Missouri Railw., 24 Missouri 493, it is decided that such lien pannot exist, both on account of the nature of the works and the public interest in them ; Redfield on Railways 231, 510.

Judgment reversed and case remanded.