Dorsey, J.,
delivered the opinion of this court.
The real question in dispute in this case, looking to the merits of the matters in controversy, is, whether agreeably to the contract between the parties, the appellee was bound to pay any thing to the appellant for the use made of his springs, and the water conveyed from them ?
According to the contract alleged in the bill, no such payment was to be made. But this allegation is positively denied by the answer, which asserts, that the appellee applied to the appellant for permission to collect said springs into one reservoir, on the land of the appellant, and thence to conduct them through his lands by suitable pipes, to the intersection of the Washington branch of the Baltimore and Ohio Railroad, and the turnpike between Baltimore and Washington, and there to furnish a supply of water to the tank or water station, there proposed to be built; offering at the same time to the appellant, to pay him so much as he reasonably deserved to have for said privilege r to which proposition the defendant acceded; but that the appellant, being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which he might thereby [120]*120be subjected, it was agreed and understood between the said appellee and appellant, that the former might enter on the lands of the latter, and thereon erect a reservoir for the purpose of collecting said waters, and lay pipes through the appellant’s lands for conveying said waters to the tank or reservoir, to be erected at the water station of the said company as aforesaid, and that at a future day, the appellant and appellee should ascertain and fix the sum to which said appellant should be entitled, as aforesaid.
The argument on behalf of the appellant appears to assume, that it is requisite not only to remove the effect of the appellant’s denial of the agreement charged in the bill, by the proof of two witnesses, or that of one witness and pregnant circumstances; but that it is requisite by like testimony to disprove the agreement, and its concomitant circumstances set out in the appellant’s answer. The correctness of this assumption may well be questioned, when by adverting to the bill, it appears that the appellant was not called on to state whal. was the contract between the parties, but to admit or deny whether he made the agreement charged in the bill. To such a bill it can hardly be assumed, that the appellant’s statement of the contract was simply responsive to that which he was called on to admit or deny.
There having been no exceptions taken in the court below, either to the admissibility of testimony or insufficiency of the averments in the bill, to which the testimony, is to be applied, let us see whether the appellee has proved a case in its general outlines or essential parts, correspondent with that stated in the bill: and in the next place let us inquire, whether the proof so offered is sufficient, also, to countervail the positive denial in the appellant’s answer ?
The nature of the transaction in question, makes it apparent, that the inspection of the springs by Samuel Sprigg and Amos A. Williams, two of the railroad directors, and the conversation then held with the appellant, was prior in point of time to any definite contract between him and the appellee; as- the sole motive of the appellee to enter [121]*121into the contract, was to carry into effect a contract in regard to the erection of a water station by the Rail Road Coi/tpnny, which, of course, and as the testimony shews, it would not enter into, until it had ascertained that the supply of water was adequate. Until then, the company agreed to contract with the appellee, it cannot be presumed that he entered into any definitive contract with the appellant. The testimony of Sprigg, shows, that for the construction of the reservoir anu use of the water, the appellant desired no compensation, unless he sustained an actual injury thereby; and at that time he could not conceive how he could be thus injured. Under such impressions, that he should in this respect have made the contract stated in the bill of complaint is in a high degree probable. But we think there is no room for conjectures or probabilities on the subject, when we advert to the appellant’s exhibits JJJ No. 1, and JJJ No. 2, which in the view of a court of equity, constitute one written agreement between the parties in relation to the matters now in controversy. Instead of one written agreement, signed by both parties, each gave to the other an instrument of writing, containing the stipulations by which the subscribers were to be respectively bound. JJJ No. 1, enumerating the acts to be done by the appellant, and JJJ No. 2, the duties required of the appellee; in execution of their agreement, JJJ No. 2, disproves the statement of the agreement as made by the answer, sustains the allegation in'the bill, that nothing was to be paid by the appellee to the appellant, for the use of the springs and the water, and of itself outweighs the positive denial of that fact by the answer. It is not pretended by the answer, nor has any proof been offered to establish it, that there was any separate stipulation for the payment of the amount of damages done to the springs, and of the value of the abstract privilege of using the water. The answer itself repudiates such an idea. If then, it were the design of the appellant to insist on such a claim, for what conceivable reason was such a stipulation left out of JJJ No. 2. There is no allegation that it was done by fraud or mistake. We must there[122]*122fore regard such a claim as forming no part of the contract between the parties.
Having expressed our opinion as to the merits of this controversy, we will now consider some of the objections, taken by the appellant to the chancellor’s decree, most, if not all of which, are rather of a technical character, than otherwise. And first, as to the appellant’s objection to the decree, that it has been passed against the positive denial in the answer of the contract stated in the bill, which denial has not been contradicted or outweighed by the proof of two witnesses, or one witness and pregnant circumstances, according to the well established principles of a court of equity. In answer to this objection we have only to say, that the principle on which it is predicated is not one of universal application, though undeniably true as a general rule; yet to the circumstances of this case it has no application. Here the two papers which this court have declared constitute the agreement of the parties were exhibited, and admitted, in the. appellant’s answer, and are sufficient to control the denials in the answer, without the aid of any oral testimony in their support. The cases, to which the rule was intended to apply, must be those in which the facts denied, depended on oral only, or oral and circumstantial evidence; not where they were conclusively proved by the production of the written contract of the parties. Nor are the exceptions to the rule confined to cases where the contract denied has been formally signed and executed by the parties.
Free access — add to your briefcase to read the full text and ask questions with AI
Dorsey, J.,
delivered the opinion of this court.
The real question in dispute in this case, looking to the merits of the matters in controversy, is, whether agreeably to the contract between the parties, the appellee was bound to pay any thing to the appellant for the use made of his springs, and the water conveyed from them ?
According to the contract alleged in the bill, no such payment was to be made. But this allegation is positively denied by the answer, which asserts, that the appellee applied to the appellant for permission to collect said springs into one reservoir, on the land of the appellant, and thence to conduct them through his lands by suitable pipes, to the intersection of the Washington branch of the Baltimore and Ohio Railroad, and the turnpike between Baltimore and Washington, and there to furnish a supply of water to the tank or water station, there proposed to be built; offering at the same time to the appellant, to pay him so much as he reasonably deserved to have for said privilege r to which proposition the defendant acceded; but that the appellant, being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which he might thereby [120]*120be subjected, it was agreed and understood between the said appellee and appellant, that the former might enter on the lands of the latter, and thereon erect a reservoir for the purpose of collecting said waters, and lay pipes through the appellant’s lands for conveying said waters to the tank or reservoir, to be erected at the water station of the said company as aforesaid, and that at a future day, the appellant and appellee should ascertain and fix the sum to which said appellant should be entitled, as aforesaid.
The argument on behalf of the appellant appears to assume, that it is requisite not only to remove the effect of the appellant’s denial of the agreement charged in the bill, by the proof of two witnesses, or that of one witness and pregnant circumstances; but that it is requisite by like testimony to disprove the agreement, and its concomitant circumstances set out in the appellant’s answer. The correctness of this assumption may well be questioned, when by adverting to the bill, it appears that the appellant was not called on to state whal. was the contract between the parties, but to admit or deny whether he made the agreement charged in the bill. To such a bill it can hardly be assumed, that the appellant’s statement of the contract was simply responsive to that which he was called on to admit or deny.
There having been no exceptions taken in the court below, either to the admissibility of testimony or insufficiency of the averments in the bill, to which the testimony, is to be applied, let us see whether the appellee has proved a case in its general outlines or essential parts, correspondent with that stated in the bill: and in the next place let us inquire, whether the proof so offered is sufficient, also, to countervail the positive denial in the appellant’s answer ?
The nature of the transaction in question, makes it apparent, that the inspection of the springs by Samuel Sprigg and Amos A. Williams, two of the railroad directors, and the conversation then held with the appellant, was prior in point of time to any definite contract between him and the appellee; as- the sole motive of the appellee to enter [121]*121into the contract, was to carry into effect a contract in regard to the erection of a water station by the Rail Road Coi/tpnny, which, of course, and as the testimony shews, it would not enter into, until it had ascertained that the supply of water was adequate. Until then, the company agreed to contract with the appellee, it cannot be presumed that he entered into any definitive contract with the appellant. The testimony of Sprigg, shows, that for the construction of the reservoir anu use of the water, the appellant desired no compensation, unless he sustained an actual injury thereby; and at that time he could not conceive how he could be thus injured. Under such impressions, that he should in this respect have made the contract stated in the bill of complaint is in a high degree probable. But we think there is no room for conjectures or probabilities on the subject, when we advert to the appellant’s exhibits JJJ No. 1, and JJJ No. 2, which in the view of a court of equity, constitute one written agreement between the parties in relation to the matters now in controversy. Instead of one written agreement, signed by both parties, each gave to the other an instrument of writing, containing the stipulations by which the subscribers were to be respectively bound. JJJ No. 1, enumerating the acts to be done by the appellant, and JJJ No. 2, the duties required of the appellee; in execution of their agreement, JJJ No. 2, disproves the statement of the agreement as made by the answer, sustains the allegation in'the bill, that nothing was to be paid by the appellee to the appellant, for the use of the springs and the water, and of itself outweighs the positive denial of that fact by the answer. It is not pretended by the answer, nor has any proof been offered to establish it, that there was any separate stipulation for the payment of the amount of damages done to the springs, and of the value of the abstract privilege of using the water. The answer itself repudiates such an idea. If then, it were the design of the appellant to insist on such a claim, for what conceivable reason was such a stipulation left out of JJJ No. 2. There is no allegation that it was done by fraud or mistake. We must there[122]*122fore regard such a claim as forming no part of the contract between the parties.
Having expressed our opinion as to the merits of this controversy, we will now consider some of the objections, taken by the appellant to the chancellor’s decree, most, if not all of which, are rather of a technical character, than otherwise. And first, as to the appellant’s objection to the decree, that it has been passed against the positive denial in the answer of the contract stated in the bill, which denial has not been contradicted or outweighed by the proof of two witnesses, or one witness and pregnant circumstances, according to the well established principles of a court of equity. In answer to this objection we have only to say, that the principle on which it is predicated is not one of universal application, though undeniably true as a general rule; yet to the circumstances of this case it has no application. Here the two papers which this court have declared constitute the agreement of the parties were exhibited, and admitted, in the. appellant’s answer, and are sufficient to control the denials in the answer, without the aid of any oral testimony in their support. The cases, to which the rule was intended to apply, must be those in which the facts denied, depended on oral only, or oral and circumstantial evidence; not where they were conclusively proved by the production of the written contract of the parties. Nor are the exceptions to the rule confined to cases where the contract denied has been formally signed and executed by the parties. As for example; suppose a verbal contract were made, to which no witness could testify, and never had been reduced to writing, and executed as the agreement of the contracting parties, and a complainant charging and seeking the performance of such contract, were to exhibit with his bill twenty letters written by the defendant to third persons, stating the contract in every particular: all of which letters were admitted to be genuine by the answer; which however denied the contract. Could it be contended that such letters would be less satisfactory than the proof of twenty witnesses who may have heard the defendant, on one [123]*123occasion only, state or admit the same facts that were contained in the letters? Or that although the proof of two such witnesses would be sufficient to entitle the complainant to the decree he sought, yet that the twenty letters would not? The absurdity of applying this Chancery rule to such a case is too glaring to be countenanced for a moment.
Another objection urged to the Chancellor’s decree, is that it enjoins the execution of a conveyance by the appellant before be has acquired a legal title to the premises to be conveyed; upon the acquisition of which title only he bound himself to convey. If this objection as to want of title were made by a vendee, against whom a decree for the specific performance of a contract of purchase was sought, it would be insuperable in ordinary circumstances. As ordinarily a Chancery court would not compel a purchaser to pay the purchase money, and accept a defective title. But what interest the vendor has in setting up a defect in his own title, as a bar, to a conveyance called for by a vendee, who is willing to accept such defective title, it is difficult to conceive. He certainly cannot be prejudiced by such a conveyance, and consequently it forms no ground for the reversal of the Chancellor’s decree at his instance. And such a defence comes with a bad grace from the appellant, after having nine or ten years before executed his exhibit J J J, No. 1, and without having assigned any reason or apology for his having so long neglected to perfect his title.
The next objection raised to the decree is, that it is too vague and uncertain in defining the thing to he conveyed, and that it directs the conveyance of the title of the appellant to all the lands mentioned in the complainant’s bill.
We do not think the decree, upon a fair interpretation of it, obnoxious to the exceptions thus taken to it. It refers to the bill, as showing the lands on which the conveyance was to operate, and the extent of the right or interest intended to be transferred. From the nature and circumstances of this whole transaction, it is mani/est, that it was not necessary nor intended that there should be a conveyance of the land itself; but of a mere [124]*124privilege or easement exercisable upon, or flowing out of the land to which it was applicable. As this contract was made for the purpose of securing a beneficial easement to the rail road company, and as the rail road company, by its agents, have contracted with the appellant, that one half of the reservoir should be left open for the use of the appellant, to which the appellee hath assented, it is right and proper that the conveyance directed by the said decree, should make provision for the same; and should also secure to the appellee the privilege of entering on the lands of the appellant, for making all necessary repairs to the pipes conveying the water from the reservoir to the water station, upon the said appellee, his heirs, executors, administrators or assigns, thereafter paying to the said appellant, his heirs and assigns, for the damage done to him or them, as the case may be, by the making of the said repairs; and should also secure to the said appellees, his heirs and assigns, an entry upon the said lands of the appellant for the purpose of making the necessary repairs to the said reservoir, and rendering it effective for the purpose for which it was constructed. And for the purpose of providing for these objects and removing all doubt as to the nature of the interest in the lands of the appellant, designed to be conveyed to the appellee, this court will sign a decree affirming the decree of the Chancellor, with costs, and making the appropriate additions thereto, to accomplish the objects aforesaid. For the recovery of the damages, if any, which the appellant has sustained by the laying down of the pipes by which the water is conveyed from the reservoir to the water station, he is left to his remedy upon his exhibit J J J, No. 2.
DECREE AFFIRMED.