Burrton Land & Town Co. v. Handy

[18] The opinion of the court was delivered by Horton, C. J.: The principal question involved in this case is, whether the deed executed by Ruth A. Tarr and her husband, Smith R. Tarr, to the Burrton Land & Town Company, on or about the 20th of May, 1887, purporting to convey the following premises, situate in Ellsworth county, in this state, to wit: “All that portion of the north half of the southeast quarter and the south half of the northeast quarter of section 19, township 15 south, of range 8 west of the sixth principal meridian, lying north of the center of the Smoky Hill river, being 80 acres, more or less,” may be reformed so as to except the right-of-way of the Union Pacific Railway Company over the premises described in the conveyance. The deed contains covenants of general warranty. The right-of-way of the railway company contains 200 feet in width on each side of the railroad. (12 U. S. Stat. at Large, 491, § 2.) At the time of the purchase of the land from the Tarrs, the railway was in operation, and the land and town company must be presumed to have purchased with full notice thereof. The evidence and findings of the jury show that the land and town company submitted two propositions to the Tarrs to buy the land, one proposition being to measure the tract, and deduct the amount of land taken by the right-of-way and the river, and pay $65 an acre for the land remaining; the other proposition being to pay $3,000 for the land without measurement, subject to the right-of-way of the railway company. The Tarrs accepted the last proposition. The deed was executed, but omitted to make any exception of the right-of-way. The complications in the case grow out of the fact that the width of the right-of-way seems to have been unknown to all the parties at the time of the conveyance, yet the railway, which was constructed under the provisions of the act of congress of July 1, 1862, providing for a railroad and telegraph line from the Missouri river to the Pacific ocean, was [19] entitled to a right-of-way to the extent of 200 feet in width on each side of its road, where it passed over public laud. The evidence is sufficient to show that the land and town company purchased the land subject to the right-of-way. We think it is immaterial in this case whether the right-of-way was known at the time to be 50 feet, 100 feet, or 400 feet. All the parties had the same knowledge as to the width of the right-of-way as the other. The Tarrs did not intend to convey and warrant the title to the right-of-way, and the land and town company did not expect to purchase and obtain a good title to the same. Before the purchase there was much discussion among the parties as to the extent of the right-of-way. The secretary and general manager of the land and town company figured out that 100 feet of right-of-way would take something over six acres of land, and when the offer of $3,000 was made for the 80-acre tract, and $1,000 each for the two blocks, the right-of-way was taken into consideration. 2. Grantor entitled to have deed reformed. [20] 1. Equity jurisdiction—mistake in deed—correction. [19] The counsel for the land and town company admit that, if the right-of-way had been only 100 feet in width, there would have been no trouble between the parties. This is a concession that the company did not in its purchase expect to obtain a good title to the right-of-way. That the Tarrs did not intend to convey and warrant the title to the right-of-way of the railway company • that the land and town company knew that there was a right-of-way of the railway upon the land ; that it made its offer in view of such right-of-way, and purchased the land subject to the right-of-way, are sufficient, in our opinion, to permit a reformation * L t r of the deed, and relieve the Tarrs from any damages for the breach of their covenants of warranty on account of their want of title to the right-of-way. The covenants of warranty were never intended by the Tarrs to embrace the right-of-way, and the land and town company did not purchase the land with that understanding. The rule is, that where property has been included by mistake in a deed [20] which the parties never intended should be conveyec[ which the grantor was under no legal or moral obligation to convey, and which the grantee in good conscience has no right to retain, a court of equity will interfere and correct the mistake. (2 Pom. Eq. Jur., § 843; Benson v. Markoe, 33 N. W. Rep. [Minn.] 38; Canedy v. Marcy, 13 Gray, 373; Stedwell v. Anderson, 21 Conn. 139; Clayton v. Freet, 10 Ohio St. 544.) The evidence shows that the land and town company knew that the right-of-way was 400 feet in width a few weeks after its purchase of the land; yet with full knowledge of this, the general manager of the company, in the fall of 1887, wrote several letters promising to pay the notes, but wanting time. This evidence was properly received as tending to show that the company accepted the deed subject to the right-of-way, and made no complaint when it learned that the width was 400 feet instead of 50 or 100 feet. In view of the special findings of the jury and the evidence supporting the same, the other alleged errors concerning the evidence of the 80-acre tract of land are immaterial. The two blocks of land purchased for $1,000 each were conveyed by a separate deed. It does not appear from the evidence that these blocks, or either of them, were conveyed or accepted subject to any right-of-way; therefore the jury properly allowed $100 damages on account of the breach of the covenants of warranty in the conveyance of block 32. The land and town company had some expenses in defending the action brought by the Union Pacific railway to eject it from a part of block 32. One witness testified that $75 or $100 were paid in looking up the matter. On account of this evidence, $100 will be allowed as additional damages, to be deducted from the judgment rendered. The judgment will be modified accordingly. All the Justices concurring.