North & West Branch Railway Co. v. Swank , 1884 Pa. LEXIS 143 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court, March 81, 1884.

By the contract Swank agreed that the Railway Company should have -the right of way through his land, and if the parties could not agree as to the amount of damage, it should be referred to E. M. Tewksbury; and furthermore agreed to sell the right of waj along the river bank for two hundred dollars per acre for tillable land, and release the river bank ; or for two hundred and fifty dollars per acre if they go back from the river.

No part of this contract is rendered immaterial or insensible by giving the other parts their legal and ordinary interpretation. The sale of the right of way is absolute, with the privilege on the part of the purchaser to choose one of two locations. If the way along the river- bank be taken the price shall be less per acre, exclusive of untillable land, and the bank be released; if the one back from the river, a higher price per acre for all the land. In case of dispute respecting the land whether tillable or untillable on the river bank, or whether the land occupied is on the. bank or back from the river, or about any other matter, causing a disagreement as to the amount of damage, the decision of Tewksbury shall be binding upon both parties. It is manifest that a real difference could arise involving more than a measurement of land. The road might be so located that one party would claim it was on the bank and the other that it was back, each in good faith. So, difference might arise whether land taken is untillable. On its face the agreement is full and complete, and the several parts sensibly related to each other. Its form is of no consequence ; the meaning is precisely the same as if the terms of the Solomon Shuman grant had been written at length in the paper signed by Swank.

An agreement between a landowner and a railroad company to sell the latter a right of way across the premises of the former, covers all damages of whatever sort suffered by the landowner, all for which he is legally entitled to compensation. This principle, recognized in the charge of the learned Judge of the Common Pleas, is so well settled and so reasonable that it has not been controverted. But the court held that the parties to the agreement in question contemplated compensation for other damages than the mere taking of land for the right of way, and that the general rule is not applicable; to this we are impelled to dissent. The parties contracted for “ the right of way ” for compensation to be ascertained at a certain rate per acre for the quantity of land occupied. No word or clause indicates a reservation by the landowner of the right to recover damages ,t° other land, or to recover for the vines, trees and shrubs on the land taken for the way. Nothing is excepted out of the grant. The way defined in the contract is entire and within the general rule. So far as advised, the popular understanding of a grant of right of way for a railroad is, that it includes all the company may lawfully and adversely take from the grantor for use as a way. We are of opinion that the second assignment of error must be sustained.

Parol testimony is admissible to reform a written contract by varying or.ad'ding to its terms, on the ground of fraud or mistake. Previous negotiations of the parties are presumed to be merged in the written instrument. The court well remarked that tit is competent for the maker of a contract to show by parol testimony that it would be a fraud upon him to take his land without the performance of the conditions on which he agreed to part with it. But the conditions ought to appear in the writing. If by mistake, or by design of the agent of the company, this contract does not fully express the agreement, it can be reformed in equity, and the reformation, according to the rules of evidence in equity proceedings, can be made at the trial of this action. Swank was the only witness who testified in support of the alleged “representations or misrepresentations” which, if established, change the terms of the written contract, or as submitted, actually set it aside. His testimony is uncorroborated — the allegation is denied by the other party and some testimony adduced of its untruth. Were the defendant in error in a court of equity, asking that the contract be reformed, or set aside, by reason of the alleged fraud, and the allegation denied, upon such testimony as adduced here, his bill would be at once dismissed. His testimony could not be. considered by the chancellor, unless corroborated by another witness, or the equivalent of another. Unless there be such testimony as a chancellor could consider upon a question of this nature, it ought not to be submitted to a jury in a proceeding at law. In this State equity can be administered in actions tried in the law courts, but the rules of evidence in an equity case, and in a case at law, should not be confounded: Juniata B. & L. Association v. Hetzel, 7 Out., 707.

The ninth assignment of error raises the question of the sufficiency of the testimony to establish the fact that the agent of the company induced Swank to sign the agreement, by agreeing to locate the track on other land than that on which it is located, or to build an arch under said track at the old passage-way of Swank to the river. As already shown, it is insufficient, and the sixth point of the plaintiff below should have been refused. The same error also pervades the matter complained of in the third and eighth assignments.

We think the court rightly ruled on all the points raised, which have not been remarked.

Judgment reversed, and venire facias de novo awarded.