Louisville & Nashville Railroad v. Willbanks

Holden, J. Willbanks brought suit against the railroad company for damages alleged to have been caused by reason of its failure to build three crossings on its right of way acquired from him by deed. The plaintiff alleges: “Petitioner further shows that in the contract made with him by the defendant for the right of way for the construction of a railroad through his said lot of land, No. 308, 9th and 3rd, and as a part of the consideration moving him to convey said right of way to said railroad company, the said railroad company, acting through its agents C. N. King and W. M. Cox, who took said conveyance, promised him to construct three crossings as mentioned in paragraph five of the original declaration. This was done to enable plaintiff to go from one part of his farm to another, and to enable him to reach his timber land lying across the railroad from his house, and to enable him to haul his crops and such timber as he needed across the railroad. This agreement was in parol, and does not appear in the deed he gave to said railroad company, conveying it the right of way. . . In the agreement aforesaid petitioner agreed that he would furnish the timber necessary to construct the said crossing; and pursuant to the said contract, the said railroad company, through its said agent, did construct one of the said crossings, and it began the construction of another one, but before finishing the second crossing it abandoned the same and tore it up, together with the first and complete crossing, carried away the timbers furnished for the construction of the said crossing, and used them on another part of the line of said railroad company.” To this petition general and special demurrers were filed, which the court overruled, and the company excepted. One ground of demurrer was as follows: “The plaintiff’s petition as amended sets forth no cause of action against defendant, for the reason that the alleged parol agreement was contemporaneous with the written agreement between the parties, and it is not permissible to vary or add to that written agreement by parol proof. The law conclusively supposes the entire contract to be merged into writing; and it appearing that the matters complained of are not contained in the written agreement, there is no right of recovery in favor of plaintiff. [17] The deed wherein the plaintiff conveyed to the company the right of way is not attached to the petition, but it is alleged that the plaintiff did make a deed to the company wherein he conveyed to it the right of way. Construing the allegations in the plaintiff’s petition to mean that a part of the consideration of the deed was an agreement on the part of the company to build the three- crossings to which reference is made, if no such consideration was expressed in the deed, could it be established by parol? The plaintiff alleges-that in this deed he conveyed to the company the right of way. The company under this deed acquired the right of way and had unconditional ownership thereof. Parol evidence of an agreement that the defendant was to erect crossings on such right of way, and give the plaintiff the right' to travel over the same, would vary the legal import of such deed. A contract for the right to have crossings permanently maintained on the right of way, and the right to permanently travel thereupon, would mean the reservation of an interest in the grantor in the right of way to which he had conveyed the fee-simple title,' and would be inconsistent with the unconditional ownership thereof and its free and unrestricted use by the grantee. If the plaintiff had an agreement by which the company, in consideration of a deed being made to it, conveying the right of way, was to erect crossings and give the plaintiff the right to pass over the same, such agreement should have been incorporated in the deed. If the agreement was made and was a part of the contract, but left out by fraud, accident, or mistake, the deed might be reformed upon proper proceedings for this purpose. If parol evidence of such agreement could be admitted to contradict the terms of the deed, other agreements which would more seriously interfere with the use, right, and title of the company would also be admissible; and this might be carried to such an extent as to practically destroy the company’s use of the right of way. The purpose for which the company acquired the right of way was for the construction of a railroad thereon. While as a general rule it is competent to inquire into the consideration of a deed and to show the real consideration by parol (Civil Code, §3599), this rule has its limitations. Where there is an absolute conveyance of a right of way, with no reservations in the deed, a reservation of a permanent-easement over such right of way and a requirement that the grantee erect and permanently maintain cross [18] ings on such right of way for the use of the grantor can not be shown by parol; Cook v. North & South R. Co., 50 Ga. 211. In Mattison v. Chicago &c. R. Co., 42 Neb. 545, 552 (60 N. W. 925, 927), it was said: “By the evidence of the parol agreement in the case at bar, it was not the object to show a separate, distinct contract from the one contained in the deed, but to show one by which the terms of the deed, as the contract of the parties, would be changed by reading into it a reservation or condition by which the appellee would be given a right of a permanent crossing over the right of way of the appellant; not showing the purpose for which the deed was made, but changing the terms of the grant of the right of way from a full and complete conveyance to one upon which was imposed the servitude of the appellee’s right of crossing, thus varying it and modifying it in a very material portion of it. This, we think, was clearly in direct violation of the rule, not only in its terms, but in the reasons upon which it is founded. The evidence was inadmissible and incompetent, and the contract, resting as it did in parol, could not be allowed to alter the terms and conditions of the deed.” In Schrimper v. Chicago &c. R. Co., 115 Iowa, 35 (82 N. W. 916, 87 N. W. 731), a case involving similar facts, a like ruling was made. In this connection, see also Hiers v. Mill Haven Co., 113 Ga. 1002 (39 S. E. 444); Charleston &c. Railway Co. v. Fleming, 118 Ga. 699 (49 S. E. 664); Louisville &c. R. Co. v. Holland, 132 Ga. 173 (63 S. E. 898); Hawkins v. Bevel, 61 Ga. 262; Muller v. Rhuman, 62 Ga. 332 (3); Anderson v. Continental Ins. Co., 112 Ga. 532 (37 S. E. 766); Williams v. Smith, 128 Ga. 306 (57 S. E. 801); Nelson v. Spence, 129 Ga. 35 (58 S. E. 697); Chapman v. Gordon, 29 Ga. 250; Southern Bell Tel. Co. v. Harris, 117 Ga. 1001 (44 S. E. 885); Sawyer v. Vories, 44 Ga. 662; 2 Devlin on Deeds, §850a, pp. 1147, 1148; 4 Enc. Ev. 199. No question in regard to the right of a way of necessity is involved in this ease. In our opinion, the trial judge should have sustained the 7th ground of demurrer, above set out. In view of the ruling made, it is unnecessary to consider the other grounds of the demurrer. Judgment reversed. All the Justices concur, except