An appeal from the circuit court of Wood County, taken by Wm. Johnson, Jr., to a decree rendered on the 27th day of April, 1899, in a chancery suit wherein appellant was defendant and the Ohio River Railroad Company was plaintiff.
In its bill and amended bill the plaintiff alleges that in April, 1882, its right of way for a railroad was obtained from the defendant, through his farm, fifty feet wide, with necessary ground for cuts and fills, according to the original line of such road as surveyed by engineer Wharton. The grant was reduced to writing, signed and acknowledged by the defendant. Afterwards there was a slight addition added thereto as follows: “It having become necessary in the construction of above railroad to use certain ground to deposit waste dirt and also- to move the fence along the line of same and also being necessary to destroy some fruit trees in the grading and protecting the gravel bank mentioned above: Now, therefore, as a consideration of the same the said railroad company have paid to said Johnson the sum of
The plaintiff claims that this judgment was a satisfaction for the failure to perform its covenants, and that by reason of the payment of the damages and the possession, of the road outside of the line surveyed by engineer Wharton, it acquired the absolute title to the fifty feet of land of which its railroad as constructed formed the center line without regard to the Wharton line, and that it was entitled to a deed therefor from the defendant, and that the defendant also agreed thereby to the change in its right of way thus made; that the change thus made was the mere shifting of the center line of the entire right of way, to the extent of the change aforesaid against said gravel bank from the former location on the bottom on the river side of said center line. That at the north end of the farm of the defendant is an orchard, that plaintiff instituted a suit to condemn a portion of the same for the sand and gravel, that it had the damages estimated by commissioners and paid the amount three hundred dollars thereof into court, the defendant demanding á jury trial, plaintiff while such condemnation proceedings were pending entered upon such land and removed such sand and gravel. The proceedings were dismissed and abandoned because the court held that an orchard could not be condemned. The defendant then instituted a suit to recover the value of the sand and gravel taken from his land during the pendency of the condemnation
There are but two propositions presented by this controversy, the establishment of both of which is on the plaintiff, and they must be cleared of all doubt before specific performance should be granted.
1st. Is the center line of the railroad track as now located on the original Wharton line or substantially so ?
2d. If it is materially off of that line, did the defendant agree to the change and thereby agree that the whole right of way' should be shifted so as to make the center line of the track as now constructed the center of such right of way ?
As to the first proposition there can be no doubt. The vast-preponderance of’ evidence, the confessions and admissions of the plaintiff by record and outside of the record fully establishes the fact that in the construction of the road the Whatron line
In that suit this plaintiff could have the very questions tried how involved in this litigation, to-wit: the true location of the Wharton line, and the right of the plaintiff to take the gravel and sand. If taken from plaintiff’s land, such fact could have been as well established then as now. Plaintiff cannot complain that it did not then have the title in fee. For it could have just
The plaintiff and defendant, through their attorneys, entered into a stipulation in the circuit court that if this cause resulted in favor of the defendant the court was to ascertain the amount of sand and gravel removed by the plaintiff since the former recoyery and the value thereof at five cents per cubic yard, and judgment was to be entered therefor in the suit at law. The defendant insists that this Court should make such ascertainment and enter a decree for the same. There is no prayer for affirmative relief in the defendant’s answers, and this Court is without jurisdiction to enter such decree, but must leave the matter of enforcing the stipulation with the circuit court.
The decree of the circuit court is reversed, and the bills are dismissed.
Reversed.