169 P. 342 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
It appears from a transcript of the evidence that Mrs. Reed is the owner in fee of lots 1 and 2, section 26, T. 1 N., R. 4 E., in Multnomah County, Oregon. Her predecessor in title, Frederick Wilier, in consideration of $70 executed on May 28, 1881, to the Oregon Railway & Navigation Company, one of the plaintiff’s predecessors in interest, a deed conveying a strip of land 100 feet in width, being 50 feet in width on each side of and parallel with the center line of the grantee’s railroad, as the same was staked out and located over and across such lots. That deed contains a clause which reads:
“Provided, that said railway company agrees to provide and maintain two wagon road crossings for the use of said Wilier, one of which is to be the county road, and to permit said Wilier to construct a wood chute under said track and to leave an opening therefor.”
The lots so described border for a distance of 160 rods upon the Columbia River, along the left bank of which the railway was originally constructed as surveyed. A mound on this real property, generally known as “Table Rock” extends into the river, the cape of the hill being nearly in line with the division between these lots. A tunnel 614 feet in length was cut through the rocky point at an expense of more than $75,000. From a blue-print received in evidence it is disclosed that the right of way conveyed by Wilier was surveyed as a tangent extending northeasterly from the west boundary of lot No. 2, about 600 feet; thence the line slightly curved southerly a short distance; thence the survey sharply curved northerly to about
The plaintiff’s predecessor in interest, desiring to reduce the curvature of its railway, which had been constructed and was operated on the line, as originally laid out, caused another survey to be made across these lots, and on July 11, 1906, in consideration of $500, secured from Mrs. Reed and her husband, who had succeeded to the estate of Wilier in the premises, a deed conveying
“A strip of land 100 feet wide, being 50 feet in width on each side of and parallel with the revised center line of the main tract of the Oregon Railroad & Navigation Company’s railroad, as the same is stated out and located over and across the lands of the said grantors, ’ ’
particularly describing the lots. This deed contains the following clause:
“This instrument is intended as a deed of right of way for the construction of the railroad on said revised line, and is conditioned that upon the change of the railroad from the present to the above location, all that part of the original right of way not included in the above granted strip shall revert to and become the property of the grantors. The grantee will construct and maintain for the use of the grantors a private crossing at grade with gates.”
It further appears from the blue-print mentioned, that the north boundary of the right of way last conveyed, begins at a point on the west line of lot No. 2, about 30 feet north of the right so granted by Wilier, and extends by a long curve to the east line of Lot No. 1, at a point about 70 feet north of the right of way originally conveyed. About midway of the excavation of the tunnel mentioned, the north boundary of the new right of way coincides for about 200 feet
“This deed is in lieu of and a substitute for a deed of bargain and sale made by the grantors herein to the grantee herein, dated July 11, 1906, and recorded at page 328 of Book 362 of the Records of Deeds of Multnomah County, Oregon. The grantee herein shall not excavate more earth from said premises hereby granted (about an acre where the slides had occurred) than is necessary for the proper and safe protection of its railroad. The consideration herein is in full satisfaction for any and all damages that may in any manner result to the adjacent lands of the grantors by virtue of the construction of said railroad on the grantee’s revised line through said premises. All crossings and other privileges set forth in the deed of July 11th, above referred to, are hereby waived and held to be null and void, but grantors, their heirs and*406 assigns-, or any of them, may construct and maintain one private road or trail over the land secondarily described herein, (the acre mentioned) and maintain thereat a private crossing with gates over grantee’s railroad at the west end of the tunnel on said premises. Together with all and singular the trees, wood and timber thereon, and the stone, gravel and material therein, but the trees on top of the tunnels shall not be unnecessarily cut or removed by the grantee herein. ’ ’
Pursuant to the last conveyance so made, the grantee therein named completed the revised line of railway, cut the new tunnel at an expense of more than $100,000 and moved the ties and rails from the old track to the new, finishing the work about September, 1908, when trains were then and thereafter operated through the new tunnel. The plaintiff herein on December 23,1910, by mesne conveyances, secured a transfer of all the right, title, interest and estate in and to the premises so granted by Wilier and the defendants to its predecessors, the Oregon Railway & Navigation Company and the Oregon Railroad & Navigation Company. Thereafter the defendants, asserting that under their deed of July 11, 1906, they were entitled to the old tunnel, took possession thereof without permission of the Railway Company, built at the west end of the new tunnel a retaining wall of logs, earth and brush, and their tenant removed from the old tunnel many of the timbers and supports therein. This suit was thereupon commenced and terminated as hereinbefore set forth.
At the trial Mrs. Reed as a witness in her own behalf testified that having secured the services of an attorney to protect her interests in the matter, she relied upon his advice and, with her husband, executed the conveyance April 2, 1907, without carefully examining the deed or knowing that it purported to
“You see, the Eeeds were getting $1,000 for a slope, you understand, that came down there [referring to the acre at the west end of the new tunnel]. Of course, it took this trail or road, which they talk about, (passing over the one acre) but so far as the commercial value of what the O. E. and N. (plaintiff’s predecessor) got there, you understand, it was worth very little, and a $1,000 was an immense price to be paid for it, and that is the truth, and I told the Eeeds so at that time and advised settlement, of course. I*408 think the railroad company offered a small amount; they offered something like $100 at first, and when we could get $1,000 there was no hesitancy on my part. We held and squeezed until we got the $1,000 and they were at work there and they had to have this right of way, and that is the way we got it.”
In adverting to the final adjustment of the matter which was consummated by the deed of April 2, 1907, the witness further testified:
“But at this time we were settling differences that had existed between these people for a long time, and it was settled. And when these people say that they didn’t understand this instrument, it is too ridiculous for anything.”
Mr. Joseph again referring to such settlement and to the defendants herein, also stated upon oath:
“Well, when I got $1,000 for them there wasn’t no two happier people in the United States than they were to get the $1,000 under that deed. ’ ’
The witness further referring to the defendants also testified:
“They understood that they were giving up,—that that second deed was wiped out, and that the railroad company got what it had under this old deed, and that acre of ground that had slipped down. That is what they thought they were giving up, and when they got that $1,000 they were getting paid big. And they got the right to construct a road there and have a crossing. ’ ’
In answer to the question, “And Mr. Joseph, when you approved this deed and had them sign it, you understood that they were conveying to the railroad company what you have just testified, is that right?” The witness replied, “That is right.” Thereupon the defendants’ counsel, addressing the witness and the court, announced: “That is all. If your Honor please,
Notwithstanding such asseveration, the trial of the cause was continued as to the remaining issues, namely, the right of the defendants to have crossings constructed and maintained by the Railway Company across its tract for their accommodation, as evidenced by the grant made by Wilier, and as to the damages resulting to their premises by reason of trespasses alleged to have been committed thereon by the Railroad Company. The defendants’ counsel, referring
The rules of law thus firmly established in this state preclude an examination of the questions of damages alleged in the cross-bill when the proof shows there was no equity therein. It follows, from these considerations that the decree is modified, so as to exclude any determination of the damages alleged to have been sustained.
Modified. Rehearing Denied.
Supplemental Petition for Rehearing Denied.
Rehearing
Rehearing denied January 29, supplemental petition for rehearing denied February 19, 1918.
Petition for Rehearing.
Department 2.
delivered the opinion of the court.
In a petition for a rehearing it is maintained by plaintiff’s counsel that in refusing to consider the question of damages alleged to have been sustained by the defendant, Minnie T. Reed, when it was found she had suffered no injury, the rule of law governing the cause was misapplied by this court. It is. argued that the complaint in her suit against the plaintiff herein not only sought a reformation of her right of way deed, on the ground of fraud practiced in procuring . it, but such pleading also averred that the plaintiff’s agents had trespassed upon her land by destroying fences, tearing out culverts, diverting water from its natural'channel and cutting brush and leaving it upon her premises to her damage, for the redress of which injuries she had no plain, speedy or adequate remedy at law; that such statements of fact constitute separate grounds for equitable interference; that issues were .joined thereon and evidence received in respect thereto; that because it was found the charge of fraud had not been established, that conclusion did
It also appears that the fences alleged to have been destroyed were the protecting inclosures put up along the lines of the original right of way by the plaintiff’s servants, which fences were removed and rebuilt by such employees along the revised lines. The authority thus to move these fences seems to be unquestioned, and if Mrs. Reed sustained any injury in consequence of the alteration, no reason has been dis
A text-writer in speaking of the equitable remedy in a case of that kind, remarks:
“To entitle one to relief by injunction against the_ construction of a railroad over his land, he must use due diligence in the assertion of his rights, since the relief will not be granted in favor of one who has been guilty of laches, and who has by his own conduct given an implied assent to the construction of the work which he afterwards seeks to restrain”: 1 High, Inj. (4 ed.) §618.
“The courts may, it seems, take into consideration the fact that companies are common carriers and quasi public in their nature, and refuse to grant an injunction for slight cause where it would prevent or obstruct the operation of the road and not only cause great injury to it, but also inconvenience the public”: 1 Elliott, Bailroads (2 ed.), § 628.
Modified. Rehearing Denied.
Supplemental Petition for Rehearing Denied.