
    Railway Company et al. v. Williams.
    
      Landowner selling right of way to railroad company — Indefinite description of land — Grantor estopped to deny right of way as constructed, when.
    
    An owner of land who sells to a railroad company a right of way for its road by a written contract in which the description of the land is indefinite, and after the road is constructed, accepts, with full knowledge of the facts and without objection, the compensation agreed to be paid, and acquiesces for a period of six years in the occupancy by the company of the right of way on which the road is so constructed, is estopped to deny that such location is the location originally agreed upon and to demand additional compensation.
    (Decided June 25, 1895.)
    
      Error to the Circuit Court of Perry county.
    On July 10, 1889, the defendant in error filed a petition against the plaintiffs in error in the probate court of Perry county, under section 6448, Revised Statutes, to compel the appropriation of a strip of land described as being seventy feet in width and about one-half mile in length, extending through the farm of the petitioner, and such proceedings were had thereafter that a verdict and judgment thereon were rendered in favor of the petitioner. On error the judgment was affirmed by the common pleas and circuit courts, and to reverse those judgments this proceeding is brought.
    
      Ferguson & Johnson and W. F. Guerin, for plaintiffs in error.
    We think our demurrer in this petition and amendments should have been sustained and action dismissed, and that the court erred in overruling it. This action was worse than erroneous; it was upholding a void proceeding. Spoors v. Coen, 44 Ohio St., 497; 33 Ohio St., 562; 24 Ohio St., 345; Cook v. Andrews, 36 Ohio St., 174.
    Where a petition is defective by the omission of material allegation, the case will be reversed notwithstanding there was no demurrer to the same, and judgment will be given against the party who committed the first error in substance. Trott v. Sarchett, 10 Ohio St., 242; Trimble v. Doty, 16 Ohio St., 119.
    We will next call the attention of the court to the overruling of our demurrer to Williams’ reply to our answer, as we have said, he did not deny the. grant of right of way by the writing pleaded. Did not deny that after the same was located and constructed on the right of way purchased, he received his pay for it, etc. These undisputed facts vested a complete title in the company. A person is not allowed to at once benefit by and repudiate an instrument. Hermon on Estoppels and Resjudicata, vol. 2, pages 1176, 1177 and 1178; Wash-burn on Easements, page 441, section 25; 13 Ohio St., 373; Mills on Eminent Domain, section 122.
    Under the statutes all the jury could do was to find the value of designated and described land pointed out to them. Revised Statutes, section 6427. The statutes, section 6448: When a land owner brings proceedings, requires his petition to give a pertinent description of the lands sought to be appropriated, and all the courts hold that a full and accurate description of the lands sought to be appropriated, is necessary in the petition, and to go to the jury as a fixed thing for them to find, and whether the proceedings are instituted by the land owner or the corporations. American and English Ency. vol. 6, page 610, note 11; Wood on Railways, vol. 2, page 892;. 54 Ind., 121; Railroad Co. v. Newson, 54 Ind., 121.
    It is beyond our comprehension how a jury, in this case, could know what property they were dealing with and for which they returned a verdict. We wish to further observe that our title must come through that description, and the means of knowing what property the jury were finding in regard to must also come by that description, and if that property cannot be ascertained from the description it is void as a conveyance, and also impossible for a jury to estimate ■value or damages, and consequently the verdict is contrary to law and evidence and void. Lewis on Eminent Domain, sections, 290, 350 and 511. This rule has been long settled in Ohio, and such a description has uniformly been held void. 10 Ohio, 43; 2 Ohio, 255; Wright’s Rep., 766. Actual damages only are to be paid on a relocation, that is in the excess of damage suffered in consequence of the new road over that of the old road; if this damage falls below that, no judgment could be given for damages. Mills on Eminent Domain, section 321. The damages for the .relocation of a road are the difference between the damages for the former location and the present one, taking into consid- , eration the fact that the old road is given up, of the former were greater than the latter, nothing can be given. Sedgwick on Measure of Damages, vol. 2, page 570.
    
      Butter v. Butter, for defendant in error.
    A deed of right of way, as then located through the lands of the grantor, will not justify the location and construction of the road subsequently in-a different place. Rorrer on Railroads, vol. 1, page 318; Railroad Company v. Railroad Company, 2 W. L. B., 187; Clark, Chr. 118.
    A company does not lose its right by non-user, under a grant by a deed. Milis on Eminent Domain, section 320.
    As to judicial sales under the statute of Ohio, sections 3419,3420, the rig-ht of way does not pass by a judicial sale when not paid for. Rorrer on Judicial Sales, section 534: 2 Rorrer on Railroads, page 924.
    Sale of a railroad does not divest the purchaser with unpaid for right of way because the land owner’s right is paramount. 2 Rorrer, 917; Jones on Railway Securities, section 655. Such new company has thus adopted the taking and is liable, and the old company is not a necessary party. Rorror on Railroads, 327, 328.
    
      The company using the land, wrongfully taken and not paid for by its predecessor, is liable, and the remedy is by appropriation. 1 C. C. Rep.,. 428. And when the company enters without locating it is trepass, and the party may have condemnation ; and the railway company is estopped to deny the land owner’s right to do so. Rorrer, 331, 342; Mills E. D., 114.
    No assent to use will estop the owner from claiming compensation in damages. Mills Eminent Domain, section 141. In this case the railroad company took by purchase in fee in the land covered by the old contract, which was in writing. 56 N. Y., 526; Mills Eminent Domain, section 110. A deed may convey title although not acknowledged. 3 Washburn, Real Property, 288. Land obtained by a written contract does not revert. Mills Eminent Domain, 110.
    But we insist that the question of the description of this land or the question taken by the railway company were neither of them proper to be heard or determined by the probate court on the preliminary examination; no jurisdiction was conferred upon the probate court so to do. Section 6420 ; 33 Ohio St., 429.
    Where a demurrer to a petition omitting a material fact, is erroneously overruled, but the defendant, by answer, supplies the fact omitted and the case is disposed of on issue joined upon the answer, the judgment will not be reversed for error in overruling the demurrer. Louderman v. Judy, 2 C. C. Rep., 351; 24 Ohio St., 345; 33 Ohio St., 555; 48 Ohio St., 177; 1 Bates, 170; Revised Statutes, section 5115; Pomeroy’s Rights and Remedies, section 575 ; Bliss, section 437; 19 W. L. B., 258; Williams v. Rockoman, 46 Ohio St., 416.
    
      In this case it may be claimed that the verdict is quite uncertain. 1 Sutherland on Damages, 816.
   Spear, J.

A number of errors are alleged, but the view taken by this court of the principal one makes it unnecessary to consider the others.

By its answer the railway company took issue with the averment of the petition that it was in occupancy of land ’ without right, and alleged in substance that it acquired its rights in the year 1887, by purchase at judicial sale from a corporation known as the Columbus and Eastern Railroad Company, which corporation, in the year 1883, constructed a railroad; that in the month of July, 1883, the said railroad company located and constructed its line of railroad.upon the lands of plaintiff described in the petition; that the same was done under and in pursuance of a written contract with plaintiff by the terms of which the plaintiff, for the consideration of $375.00, granted to said company said strip of land for said railroad; that after said railroad had been located and constructed on said strip as aforesaid, the company paid plaintiff for the said right of way, the said sum of $375.00, and thereby acquired title to said right of way. Á copy of the contract is set out in the answer.

By its reply, the petitioner denied that he ever sold the railroad company the right of way sought to be appropriated herein, and averred that said land was never purchased or paid for by the said company.

At the preliminary hearing- the probate court found that in the year 1883 the plaintiff sold to the railroad company a right of way for its railroad across his premises described in the petition by a written contract, and that on August 18, 1883, the company paid him the sum of $375.00 therefor, and that the defendant company purchased of the railroad company as alleged. The court further found that in the construction of its road the company deviated a part of the way a short distance from the line' described in the written contract, and that a part of the road is on the right of way described in the contract and part of the same, but the court is unable to find how ’much of the road is on the location described in the contract and how much is of?; and as to the portion not on the location described in the contract, the company does not hold the same by said written contract. A jury was thereupon ordered.

It will be noted that the reply does not take issue upon the allegation of the answer that the contract price, $375.00, was received by the plaintiff, as and for right of way, after the construction of the road; nor is there anything in the evidence, all of which is set out in the bill of exceptions, to negative this averment. Indeed, the plaintiff, in his testimony, says that he received that money, and has kept it, and does not attempt to deny that it was so received by him after the road was constructed. It is further to be noted that the company had no occasion to desire ownership of or interest in any land other than that upon which its road-bed was constructed, and that this fact was known to the plaintiff. The inference follows, therefore, that when the consideration was paid by the company and received by the plaintiff, the land concerning which the parties were dealing was perfectly understood by both of them, as being the strip of land on which the road had been constructed, and that the plaintiff took the money-with the full knowledge that the purchaser was paying it upon the under standing, that it was compensation for that precise land, and none other.

The question, therefore, is whether, in view of the circumstances, the plaintiff can now be heard to claim that the payment which he accepted and has kept, was in part for some other land, and to insist upon opening up the subject for the purpose of demanding further compensation? We think the question will be answerd by the application of well understood equitable principles.

The description given in the contract was indefinite. One of the recitals was that “ Whereas, the Columbus and Eastern Railroad Company may desire to locate its railroad through my lands and premises,” and the agreement following was to release to the company “a* strip of land sixty feet wide through my entire property on such route as said company has located it road. ’ ’ There was no attempt to describe the exact land. This indefiniteness of description, doubtless, was the principal difficulty which confronted the trial court in its efforts to ascertain what deviation had been made from the original line, and prevented that court from finding how much of the road is on the location described in the contract, and how much is off. The land actually occupied by the company in the construction of its road, and the action of the parties in regard thereto, therefore, became of prime importance in determining- what land the owner intended to part with and the company intended to buy.

If, at the time of constructing the road,'there was a deviation in some particulars, from the lines original^ made by the company’s engineer, it was optional with the plaintiff to affirm or disaffirm that change.

He might object to it and refuse to take the money, or be might assent to it and accept the compensation. But could he adopt the part which was for his own benefit and reject the rest? It is said in Hermann on Estoppel, p. 1166, and following: “One entitled to a benefit under an instrument, must, if he claims the benefit of the instrument, abandon every right the assertion whereof would defeat, even partially, any of the provisions of that instrument.” “If a voidable contract, or other transaction, is voluntarily acted on with a knowledge of all the facts, in the hope that it may turn out to the advantage of a party who mig'ht have avoided it, he cannot avoid it when after abiding that event, it has turned out to his disadvantage.” And upon page 1167: “Where a party whose land is taken by a railroad company under the right of eminent domain, .and in whose favor damages are assessed and deposited to his credit, who knows of irregularities in the proceeding, and receives the money without objection, and sees the company construct its road over his land, cannot thereafter maintain any proceedings on account of such irregularities, as by accepting’ the damages he waives all right to object to the proceeding’s. He cannot have the money and litigate with the company as to their right to occupy the land.” The author cites to the last proposition. Burns v. Railroad, 9 WIs., 450: Town v. Town, 29. Ill.., 137, and Kile v. Town of Yellowhead, 80 Ill., 208, which appear to sustain the text.

In Bannon v. Angier 2 Allen, 128, which was an action in tort for obstructing a right of way over land of the defendant, the court, by Bigelow, C. J., declares that: ‘ ‘Where a right of way, or other easement, is granted by deed without fixed and definite limits, the. practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor at the time of the grant and for a long time subsequent thereto, operate as an assignment of the right, and are deemed to be that which was intended to be conveyed by the deed, and are the same, in legal effect, as if it had been fully described by the terms of the grant.” And the same learned- judge, speaking for the court in Jennison v. Walker, 11 Gray, 423, 'says: “Where an easement in land .is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained,-the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee.” See, also, Onthank v. Railroad, 71 N. Y., 194. Coming to our own state we find the following in Railroad Co. v. Prentice, 13 Ohio St., 373, opinion by Sutliff, J.: “It certainly is not an unreasonable presumption, after proof of the fact that a road or canal had been surveyed and staked out, that when worked and in operation as a public thoroughfare, without any objection to the locus in quo, it should, if afterward questioned, be presumed to have been opened where surveyed and located.” And in Warner v. Railroad Co. 39 Ohio St., 70, the holding is: “Where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described in the terms of the grant. ’ ’

The principles stated in. the above citations we believe to be applicable to the case at bar, and as conclusion we are of opinion that, by accepting the consideration money after the construction of the road, and acquiescence for six years in the occupancy and use by the company of the land on which its road was thus practically located, the plaintiff is estopped to now deny that such location is the true location, and demand additional compensatiou.

Upon the whole case, as shown by the record, the plaintiff was not entitled to recover.

The judgments below will, therrefore be reversed, and the action dismissed.  