Oregon Railway & Navigation Co. v. Day

Mr. Justice Turner

delivered the opinion of the court.

The appellant — a railroad corporation — appropriated a strip of land one hundred feet wide through the farm of appellee, for the right of way of a railroad which it proposed to build thereon. The appellee, finding himself unable to agree with the' company as to the compensation to be paid for said right of way, instituted proceedings before a justice of the peace to have his compensation determined agreeably to the provisions of chapter 188 of the Code. The case proceeded to a determination before said justice, and subsequently found its way into the District Court, agreeably to the provisions of the chapter before referred to. In the latter court pleadings were filed as in an adversary civil action; and among other defenses interposed by the appellant to the claim of the appellee was one averring a contract in writing, made by the appellee and wife with Jay Lynch and W. E. Wilson, trustees of the Pataha Railroad Company, in which appellee and wife agreed to convey to the persons last named a strip of land one hundred feet wide, through said farm, for the purpose of constructing a railroad thereon. The answer averred due assignment of this contract to appellant, and prayed that appellee be enjoined from further prosecuting his action for damages, and that he be required to execute and deliver to appellant a conveyance as called for by said agreement. The issues made by this equitable defense were first tried by the district judge, sitting as chancellor, and said issues having been found for the appellee, the cause proceeded to trial before the court and jury upon the question of damages, as in an action at law.

The only rulings of the court to which the appellant adverts in the brief of its counsel as error are those made by the judge in the trial of the equitable defense, and as the case is here by appeal, pure and simple, none others could probably be urged. Coming then to the merits of the case, we do not deem it necessary to examine and pass upon the various findings of facts and conclusions of law made by the learned judge in the court below. These findings relate principally to the sealing and acknowledgment of the agreement pleaded in the answer’of appellant, and to the validity of the assignment of said agreement to appellant. Admitting the validity of the agreement, and we may say in passing, that we see no necessity that an agreement to convey land should be sealed or acknowledged, and admitting that the interest of the Pataha Railroad Company therein passed to the appellant by the assignment, the facts disclosed in the record present an insuperable obstacle to the equitable relief which the appellant seeks.

The appellant entered on the land of the appellee and surveyed its right of way thereon, about November 1, 1885, and early in November its graders were at work thereon. These facts are deposed to by the engineer of the company, and are not denied by any witness examined. Thereupon, the right of the appellee to compensation under the statute became fixed. "Without deciding what right, if any, appellant took by virtue of the contract as signed to it, on November 11, 1885, eleven days after it had appropriated the land, we are clear that it took no right thereunder to have conveyed to it by the appellee the land which it had already appropriated under the power of eminent domain.

The consideration moving to the appellee for the agreement to convey his land was the building of a railroad through his premises, from some point to some point not disclosed by the agreement, but which no doubt the parties had in mind. Appellant having built its road without reference to that agreement, to now give it the benefit of the agreement as a defense to the suit for compensation would be to give it something for nothing. When it proposes to build a new line of road through the lands of appellee on the faith of this agreement, and shows that its line is one substantially like that which the original parties to the agreement had in mind, something not shown of its present line, it may have some rights under the agreement; it will then be time enough to determine what they are.

This view of the facts disposes of the contention of counsel for appellant, that if the contract be one upon which specific performance may not be decreed, yet its execution by the appellee, and the contention by the appellant of its line of road partly on the faith of it, raise an equitable estoppel against the appellee to claim compensation. We have seen that the lands of appellee were appropriated before the appellant took any rights under the agreement. It did not, then, construct its road partly on the faith of said agreement, and no estoppel against the appellee arises.

A different coloring might be given to this branch of the case if the testimony offered in the lower court and rejected were before us. But it is not before us, and appellant has not contended that it was prejudiced by the action of the lower court in respect to said testimony. Nor are we prepared to say that it was prejudiced.

The judgment of the lower court is affirmed.

Greene, O. J., and Hoyt, J., concurred.