Wilczinski v. Louisville, New Orleans & Texas Railway Co. , 66 Miss. 595 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

This is a controversy between the appellant and appellees, touching the rights of the respective parties under a contract made between the appellant and the railroad company for a right of way over his plantation in Washington county. The contract is in writing, and recites that the appellant is the owner of a certain plantation known as the “ Matilda plantation,” in Washington county, across which the right of way of the railroad had been laid by a preliminary survey, on a line known to both parties; that the company contemplated building another road which would also run across said plantation on a line not yet fixed, but that the intersection of the two roads would be upon said plantation. In consideration of the advantages to accrue to him by the location of said roads and the establishment of a depot on his farm, the appellant contracted to convey the necessary rights of way and lands upon which to place all needed switches, Y’s, and side tracks and also two acres for a depot site. There are many stipulations and limitations in the contract as to what was to be done and not done by the company, but it is unnecessary to recite them since they cast no light upon the point in controversy, and serve only to show that the grant by appellant was not a donation to the company, but that he received valuable and sufficient consideration therefor. The contract contains the following clause, which is the foundation of the present controversy : “ Said right of way and two acres of ground are conveyed for, and are to be used for railroad purposes only and none other, and are to revert to the party of the first part when said company ceases to use them.”

It appears in evidence that cotton-seed is one of the articles transported by the company in large quantities; the usual modes ■of shipment are in bulk in car lots, and in sacks in car lots or less. The rates of freight for car lots are the same whether the seed is in bulk or in sacks, but the cost of sacking makes it cheaper to the shipper to ship in bulk. The company refuses to handle seed in bulk in less than car lots, and has made no provision by which one desiring to ship in bulk cau deliver a part of a carload, or deposit the same at the station until the quantity necessary for shipment shall be secured. It, however, habitually permits any one desiring so to do, to erect on its right of way at its depots or along its lines, houses in which seed may be deposited until car lots are secured, and furnishes cars, which, being loaded by the shipper, are received by the company for transportation.

The appellees, Weis & Golstein, obtained permission from the company to erect such house on the two acres granted by appellant for depot purposes and were about to build the house, when appellant enjoined them from so doing, and enjoined the company from permitting any house to be there erected by Weis & Golstein or any other person.

The bill charges and the evidence shows that at and before the-making of the contract between appellant and the company, he was the owner of the Matilda plantation, and had, located thereon, a country store where he transacted a lucrative business, a part of which consisted in buying cotton-seed from the planters and shipping the same to market. The right of way of one of the railroads had been located across his plantation, and a jury had awarded him damages at the rate of one hundred dollars per acre for the land taken. Appellant was anxious to have a depot on his place, ■and since the other contemplated road would, or might conveniently intersect the located road on his farm, the company could accede to his wishes.

To secure the location of the depot the appellant was willing to renounce his claim for damages, but it was especially important to him that the location of the depot should not bring him in competition with rival merchants, and, since he was the owner of the adjoining land, no rival establishment could be set up unless a place of business could be secured on the ground granted to the company. Preliminary to the execution of the contract the appellant made a memorandum containing the terms upon which he proposed to grant the right of way and depot grounds, and carried it to the attorney of the company as a guide in drawing the contract. This attorney (W. A. Percy) was the general attorney of the road, and .stood as its representative in making the contract between the parties.

The memorandum furnished by appellant contained this stipulation : “ The R. R. Co. is to establish a regular depot, the two acres donated to be used for depot purposes only (J. Wilczinski reserving the right to locate a store and seed-house at such point as J. W. may designate alongside of R. R. depot or track; he to have the exclusive right to erect any and all buildings to be used for transaction of any business or trade of any kind). In the event of the R. R. Co. should abandon the line of road through the lands hereby donated should revert to, J. Wilczinski.”

Upon examining this memorandum, Mr. Percy objected to the clause inclosed in brackets, and drew his pencil across it, declining to accede to its provisions. Wilczinski testifies that Mr. Percy stated the provision to be unnecessary, saying that the contract as he then prepared it included the same privilege by the limitation of the use of the land “ for railroad purposes and none other.”

Percy testified that, “ Wilczinski was very anxious to secure the depot and junction upon his Matilda plantation. As the company was taking a large amount of his land for its right of way, it desired, if possible, to accommodate him in that way, and secure the right of way without charge. The chief engineer (Mr. Elliott) and I had several conferences with Wilczinski, and finally came to a definite understanding, that if the company would locate its depot and junction on the plantation, and make certain agreements which are embodied in the contract in regard to the same, he would convey the right of way, and the necessary depot grounds free of charge. Wilczinski’s idea at the time was frequently expressed, and concurred in by the engineer and myself, that the location of the depot aud junction on his place would probably build up a little village of some importance, and he would derive considerable profit from it. He was engaged in merchandising in the vicinity, and expressed himself as very desirous of retaining the monopoly of that business, and being able to control it. My recollection is that he brought me a paper embodying the conditions and reservations he desired to have made in the contract. I went over it very carefully to see if we could agree to it, and then explained to him that we could not grant the right to him, or to any one else, to locate stores or any other buildings at any point alongside of our depot or track on the right of way. I explained to him that it was absolutely necessary that the company should have the exclusive right to control its own depot grounds and right of way, and that our policy was never to make any agreement with regard to the use of those grounds that would deprive us of that exclusive right. I explained to him fully' that the expression in the contract, ‘ for railroad purposes only, and none other/ would deprive us of the right of allowing the location of stores upon the depot grounds by other persons, or of putting them there ourselves; that under that expression we could only use the depot grounds and right of way for legitimate railroad purposes for the business of the road, and could not allow the use of them by individuals for their own private use for mercantile establishments, or anything similar, nor could we use them ourselves for such purposes. As I recollect very distinctly, Wilczinski’s apprehension was that the company might permit other parties to go there and locate stores on the depot grounds, and thereby become rivals of his in the mercantile business. In addition to the explanation I have already stated, I reminded him that he was the exclusive owner of all the ground around the depot, and, as we would have no right to permit such building to be constructed, or such business to be carried on on the depot grounds, it would give him the control of the situation. I do not think the question of seed-houses entered into the discussion at all, or was contemplated by either party as being material. I certainly should never have agreed myself to a contract which would preclude the company from constructing seed-houses for the shipment of cottonseed in bulk, if he had intimated such desire. I ran my pencil through that portion of the memorandum, reserving to him the exclusive right of locating stores and seed-houses at such points as he might designate, in his presence, I think ; I certainly showed it to him afterward, as that part of the memorandum to which I could not agree, and explained to him very fully why.”

The appellees, Weis & Golstein, have rented an adjoining plantation, on which, and within two hundred and fifty yards of the depot, they are conducting a mercantile business in rivalry with Wilczinski. Apart of this business is dealing in cotton-seed, and to facilitate their shipments of seed, they desire to erect the seed-house on the depot grounds. By storing the seed in such house they will be relieved of the expense of sacking them, or of handling them in bulk a second time. The custom of parties having seed-houses on the railroad right of way is to store the seed as bought in small lots in the houses, and to load them directly on the cars when car lots are secured. The saving by this course is about fifty cents-per ton.

The appellant seeks relief, first, by reformation of the contract by inserting in it the words which were struck from the memorandum by the attorney of the company, and a specific compliance' with the contract thus reformed. But, if this be denied, then, he' contends that it is a violation of the contract as executed for the' company to permit a seed-house to be erected on the depot grounds by Weis & Golstein for the uses contemplated by them. For the appellees it is asserted that no fraud, accident, or mistake is shown in the execution of the contract by reason of which it ought to be' reformed ; and that the contemplated use of the grounds'is a “ railroad purpose,” and being such is within the terms of the contract.

The facts disclosed, even by the testimony of appellant, are wholly insufficient to justify a reformation of the written contract. The exclusive privilege sought to be thus secured of the right to erect private buildings on the depot grounds and right of way, as noted in the memorandum made by him, is one which by no sort of construction of the language of the contract he signed is found to be reserved. He at least knew that he had employed apt words to-reserve the right, and these words were, as he himself states, erased from the memorandum by Mr. Percy, and a contract prepared in which the stipulation was omitted. It is inconceivable that the attorney should state or the complainant believe that a limitation preventing the company from permitting the property to be devoted to any other than “ railroad purposes ” was the equivalent of a reservation of a right of private use by the complainant himself.

By no possible construction, however liberal, could such meaning be found within the import of the words used. In view of the history of the transaction, given by the attorney of the road, it is manifest that a reformation of the contract in accordance with the prayer of the bill would impose on the company a contract it did not intend to make, that it would not have made, and the very one it distinctly declined to make. Courts cannot impose on one contracting party the burden of an agreement into which he did not intend to enter, to protect the other in supposed rights he intended to reserve or acquire, when the exercise of the slightest care would have discovered that by his contract as written such rights were not only not reserved, but by necessary implication were denied. It would be a waste of time to refer to those settled rules governing the reformation of written instruments; to the limitations under which equity proceeds, .to the clearness of proof of mistake required. On this branch of the case complainant fails to reach a position from which argument can be made.

The real controversy is whether the use to which the land is about to be devoted is a “ railroad purpose and none other.”

If it is such purpose, plainly and exclusively, it is within the use permitted by the grant, and relief must be denied. On the other hand, if the nature of the use is of doubtful character, and is not necessarily included in the language employed, it is competent to look to extrinsic circumstances to determine whether it falls within or without the intention of the parties as expressed by the contract.

We cannot make a contract for the parties ; we must find the one made by them, and this must be found in, the words they have employed. But if the words are of doubtful import, and may mean indifferently either of two things, they are to be taken as meaning that which the parties intended and understood them to mean, to discover which the evidence of attendant circumstances is competent. The court, informed of the circumstances, puts itself in the situation of the parties, and from that standpoint discovers what is the meaning of the words of the contract.

We might rely upon the elaborate and able briefs presented by counsel as demonstrating the uncertainty of what is a “ railroad purpose,” and whether the contemplated use of the seed-house is or is not of that character. The subject takes color from the direction in which light falls on it. It is primarily a railroad purpose or a private use as viewed from the office of the company, or from the store of its co-appellees. The company permits the building to be erected primarily to furnish a convenience to the shipper, and views as an incident the convenience it will afford to the business of the merchant. The merchants desire the building, primarily as an adjunct to their mercantile business, as an incident to which they supply the seed acquired for shipment. In one sense the use is for railroad purposes, for under the license of the company, Weis & Goldstein could not conduct the business of buying and selling seed in the building on the depot grounds; they could use it only as a place in which to deposit the seed intended for shipment. In this view, the building would be accessory to the business of the company.

But until the seed should be delivered from the house, the company would have no custody of, nor responsibility for them. The building would be the private property of Weis & Goldstein, which neither the railroad, nor other shippers could of right use. The seed deposited in the house by Weis & Goldstein though intended for shipment would continue in their possession, and subject to be shipped or otherwise disposed of as they might elect.

Placing ourselves in the attitude of the parties, the question involved is not difficult of solution. The testimony of Mr. Percy, the attorney for the company, discloses beyond doubt that the company understood that Wilczinski was stipulating for a depot on his plantation, and the preservation of the monopoly of the business in which he was engaged at that place, and which, being owner of the surrounding soil, he could retain if the company should be restrained from permitting a rival to establish his buildings on the ground granted for depot purposes and right of way. Without doubt this was the substance of the right he intended, and the company understood him, to reserve. As a convenience to his business he desired to secure the right to place his store and seed-house on the grounds of the depot, but this the company refused to permit, and Mr. Percy explained to him the rule the.company had adopted of reserving full control of its grounds. But he stated that by restricting the use to that of “ railroad purposes and none other ” the company could not itself erect, or permit others to erect buildings on the premises in which private business could be transacted. In other words, that the privilege of putting store and seed-houses on the premises could not be left to Wilczinski, but that under the language of the contract such right could not be given to another; wherefore, under the contract, and by reason of his ownership of the adjacent land, Wilczinski could maintain his monopoly in the business in which he was engaged.

That such was the intention of the parties we think is shown without doubt. The language employed was meant to carry out this intention, and is susceptible of that construction by which it will be upheld.

Interpreting the words of the contract in. the light of the circumstances, we discover the thing agreed on between the parties : the substance is found beneath and within the words employed and without violence to them. We are therefore of opinion that the contemplated use of the land is not a “ railroad purpose and none other,” within the meaning of the words of the parties, and that complainant is entitled to relief to the extent of an injunction against the erection of a seed-house on the depot grounds or right of way, within the limits of the Matilda plantation, by the appellees, Weis & Goldstein.

Wherefore the decree is reversed, and the injunction restored and perpetuated.