Guess v. South Bound Railway Co.

The opinion of the court was delivered by Mr. Chief Justice McIyer. As is stated in the “Case” prepared for argument here: “This action was brought by the plaintiff to set aside and declare void a certain deed, made by the plaintiff to the defendant, conveying a right, of way for defendant’s road through the land of the plaintiff, on the ground that the said deed was procured from the plaintiff by artful devices, misrepresentations, fraud, and deceit.” It is also alleged that the plaintiff has sustained damages by reason of the throwing out large quantities of earth taken from the deep and long cuts or excavations made for the track of the railway on to the lands of plaintiff, for the removal of which the plaintiff has had to pay the sum of twelve hundred dollars. The prayer of the complaint is that said deed be delivered up can-celled, that the clerk of the court be required to empanel a jury to ascertain a just compensation to be paid by defendant company to plaintiff for the right of way taken, and for other relief appropriate to the case made. The case was heard by his honor, Judge Fraser, upon the testimony taken and reported by the master, who rendered his decree, holding that no fraud in obtaining the deed for the right of way had been proved, and that the testimony did not show that any of the earth taken from the deep cuts was deposited, or would have been deposited, [455] outside of the one hundred and fifty feet covered by the deed, and he, therefore, rendered judgment dismissing the complaint with costs. He, however, also held that even if the deed for the right of way could have been held fraudulent and void, the plaintiff could not, in this proceeding, obtain damages for the land taken for the right of way, but he must resort to the special statutory proceeding provided for such a case. 1 From this judgment plaintiff appeals upon theseveral grounds set out in the record ; but as the case, in our judgment, turns largely, if not entirely, upon questions of fact, we need not repeat the several grounds of appeal. In deference to the zeal and ability with which these grounds have been pressed by counsel for appellant, we have carefully examined the testimony set out in the “Case,” and we must say, that so far from there being no testimony to sustain the conclusions reached by the Circuit Judge, or that any of such conclusions are manifestly against the weight of the evidence, we think that there is quite sufficient testimony to sustain all of the conclusions of fact reached by the Circuit Judge. Indeed, the Circuit decree furnishes its own vindication'; and for that reason it should be incorporated in the report of this case. 2 3 Some question has been raised as to the delivery of the deed, but we think the plaintiff is precluded from raising that question in face of the express allegation in the sixth paragraph of his complaint; but even if it could be raised, the plaintiff’s own testimony is quite sufficient to show that the deed was actually delivered, for he says that the deed was executed (which, of course, implies delivery) in the presence of two subscribing witnesses, and there is no dispute as to the fact that the deed was then handed to the agent of the defendant, employed to obtain releases of the right of way. The fact, even if it be a fact, about which there is a direct conflict of testimony, that the deed was returned to the'plaintiff afterwards, though subsequently found in the possession of defendant and placed upon record, cannot affect the question, for there is nothing to show that the agent had any authority to cancel the deed; for the fact that the agent, Slade, had authority to obtain releases for the right of way does not [456] imply an authority to cancel such releases. Adrian & Vollers v. Lane, 13 S. C., 183. 1 Nor does the fact that the deed was executed upon an alleged condition affect the question ;' for, waiving the question whether such condition could be proved by parol, it is very obviousfrom the testimony of the plaintiff himself that the alleged condition was complied with ; for he says, speaking of the deed : “I told him (Slade) that I would give it to him with one understanding, and that would be the final solution of the matter, and that the railroad would have to locate the road through my land according to the deed, and that there should be no further trouble, no condemnation service.or any thing else, aud Mr. Slade,agreed to that, I understoodand there can be no doubt that the road was located as contemplated by the deed, and there was no further proceedings for condemnation. 4 From a review of the whole case, we think it clear that the plaintiff, finding that the railway was to be laid out through his laud, and that two lines had been run, one much nearer to his dwelling house than the other, and, therefore, much more objectionable than the other, and fearing that the company might adopt the more objectionable line, and have the land over which it ran condemned for the right of way, determined to give the right of way over the other line, in order to prevent the adoptiou of the more objectionable line, just as has been done by many other landholders, through whose lands railroads have been projected and laid out. And as the Circuit Judge has found as matter of fact that there was no fraud or misrepresentation on the part of defendant, it follows that the plaintiff’s claim to have the deed for the right of way set aside, cannot be sustained. Under this view it becomes unnecessary to consider the question as to whether the plaintiff could, under this proceeding, demand that a jury be empaneled to ascertain the compensation to which he is entitled for the right of way which he has already, by a valid deed, conveyed to defendant. The judgment of this court is, that the judgment of the Circuit Court be affirmed. •