Galveston, H. & S. A. R. R. Co. v. Pfeuffer & Ireland, 56 Tex. 66

Quinan, J. Com. App. The second assignment of errors, that the court erred in refusing to strike out plaintiffs’ amended petition, is in our judgment well taken.

The amended petition attempts to avoid the grant by Ireland to the railroad company of the right of way over his land, alleging that it was given “on the express condition and understanding that said defendant would make no depot at the Guadalupe river west of the town of Seguin, and that it would not deliver freight or passengers at said point, but that it would deliver all freight and passengers traveling over or transported over its said road for the west, at Seguin, until a depot could be established west of said river; that this understanding and agreement was at once violated and broken, . . and so said deed is null and void.” That the matters pleaded here could not be proved by parol, or if proved would not make void the deed from Ireland to the railroad company, would seem to be quite too clear for discussion.

The rules of law applicable to the subject are merely elementary. That parol evidence cannot he received to contradict or vary the terms of a written contract, in the absence of fraud or mistake, is a universally recognized rule of law and of reason. Mr. Wharton says: “To deeds the rules . . are eminently applicable, for the reason that the more solemn are the formalities prescribed for a dispositive document, and the more permanent are meant to be the dispositions it makes, the more unjust is its variation by any agency so liable to careless or fraudulent- falsification as is unwritten speech.

Hence it is that the courts are uniform in their refusal to admit, except in cases of fraud or gross concurrent mistake, parol evidence to contradict or to vary the terms of a deed between the parties. To deeds also with peculiar rigor is the rule applied, that to what is written no new ingredients can be added by parol. ” § 1050.

Surely to permit proof of what is here alleged of these conditions and understandings between Ireland and the railroad company in respect to the establishment of its depot, and the delivery of passengers and freight, to be supplemented to his absolute conveyance of the right of way, would be to alter, vary and enlarge its terms, and add new ingredients to what is written. East Line R. R. v. Garrett, 52 Tex., 139. The conditions mentioned are, moreover, conditions subsequent.

And while it is said that parol evidence may be admitted to prove the existence of any oral agreement precedent to the attaching of any obligation on any contract, a condition subsequent cannot be proved by parol. Id., § 928. So “parol evidence is not admissible to prove any conditions which would defeat or control the legal effect and operation of a deed delivered.” Wallace v. Baker, 1 Binn. (Pa.), 610. An inquiry into the consideration of a deed will always be permitted, but the recital of consideration existing precludes the grantor from disputing generally the fact of consideration. §§ 1040, 1042.

He cannot avoid Ms deed which recites a consideration by proving that he received none. If, however, as we have said, the plaintiffs here were permitted to prove the facts alleged, the result claimed would not follow. The deed was an absolute grant of the right of way, an executed contract; and the failure of the railroad company to comply on their part with their promises and undertakings made would not defeat it. Mr. Washbume says: “If one makes a feoffment in fee, that the feoffor shall do or not do such

an act, these words do not make the estate conditional, but it is absolute notwithstanding. . . . So if the supposed condition of an executed grant amounts to an agreement on the part of the grantee to do certain things, it will not be held to defeat the estate if he fails to perform. In order that the condition in such case should defeat the estate, the grant must be in its nature executory.” 2 Wash. R. P., 6. See H. & T. C. R. R. Co. v. McKinney, Austin term, 1881, for a full discussion of this subject in its relation to grants of the right of way to railroad companies.

Our conclusion that there was error in refusing to strike out this amended petition renders' unnecessary a particular discussion of the other assignments of error.

From this first erroneous ruling of the district judge sprang all the other errors in the case,—the admission of illegal testimony, the erroneous charge “that if the deed from Ireland was without consideration, or that the consideration has failed, then said deed does not bind Ireland and is void,” and the refusal of proper charges asked by defendant as to the validity of the deed, and the incompetency of parol testimony, in the absence of any allegation or proof of fraud, to alter or vary its.terms.

Eeplying briefly to other questions presented in the case we say: The release of the right of way by Ireland was a release only to the extent of his interest. It did not affect Pfeuffer’s right to recover compensation from the railroad company for the taking and appropriation of the land for the purposes of their road to the extent of his interest in it. Nor is his right of recovery barred by the fact that they may have located their road or thrown up their roadbed before he acquired title to the land.

The appropriation of the land without pursuing the course pointed out by law for the condemnation of the right of way did not divest the owners of- their title to it. The wrong done is a continuing injury. They acquired no title to the land taken simply by' taking it. It became Pfeuffer’s by his grant from the former owners; and the railroad company continuing to retain it and appropriate it to their uses, cannot avoid their liability to Pfeuffer to compensate him in such damages as the law according railways, on certain conditions, the right to take lands, allows.

The right .to compensation is not waived by standing by and permitting the company to lay the track over the land. McAuley v. Western Vt. R. R. Co., 33 Vt.., 311; Western P. R. R. Co. v. Johnston, 59 Pa. St., 290. Nor is his right to recover the land itself lost if the railroad company will not make such compensation. Id.; B. B. & C. R. R. Co. v. Ferris, 26 Tex., 606.

In respect to the damages claimed from running trial lines to New Braunfels, while the company are permitted to enter upon lands for the purposes of making preliminary surveys, they are nevertheless bound to respond to the owners of the land for any injury done their property. In such case the party entitled to damages is the one who owned and was in possession of the land when the injury was committed, and not a subsequent purchaser. Furbish v. Goodwin, 25 N. H., 425; May v. Slade, 24 Tex., 205. The judgment of the court in this case is not warranted by the pleadings.

It was a simple action of trespass for injury to the realty, and damages. There was no prayer for the recovery of land, or the enforcement of any hen upon land, and it was clearly erroneous to adjudge that plaintiffs should be put in possession of the land in default of payment of the money. 3 Tex., 308; 15 Tex., 159; 28 Tex., 219; and see H. & T. C. Railroad Co. v.

McKinney. [Opinion delivered November 29, 1881.] It may be added to what we have said upon the subject of the alleged agreement between Ireland and Converse in reference to the non-erection of a depot at the Guadalupe, etc., that if Ireland could, upon the breach of that agreement, maintain any action upon it as a separate collateral agreement against the company, made by one authorized to make it, so as to bind them, it would be one personal to himself, and in which it is not perceived that Pfeuffer would have any interest, or would be a proper party.

And the measure of his damage would have no relation to the value of the land released, but would be determined by the injury resulting to him from the erection of a depot at the river and the non-delivery of passengers and freight at Seguin — whatever that may have been. The judgment ought to be reversed and the case remanded. Reversed and remanded.