78 Ind. App. 115 | Ind. Ct. App. | 1922
— Action by appellant against appellee to enjoin appellee from erecting a building upon a described tract of land and for a mandatory injunction requiring appellee to remove therefrom so much of said building as had theretofore been erected on such real estate.
The amended complaint is in one paragraph to which appellee’s demurrer for want of facts was sustained. Appellant failed and refused to plead further and judgment was rendered on demurrer. The court’s ruling on demurrer is the only error assigned. The substance of the complaint is: That on and' prior to February 1, 1849, there' was existing in the State of Indiana a private-corporation known as the American Cannel Coal Company. Said coal company was incorporated under the act of the general assembly of the State of Indiana, approved February 7,1837, and was thereby constituted a corporation for the term of fifty years from February 7, 1837. On February 1, 1849, said coal company was the owner in fee simple with other real estate in
“The American Cannel Coal Company for themselves, their successors, assigns and present lessee James Boyd shall have the right of way over a part of said out lot for a railway and cart road from the coal banks to the Ohio River, said roads together not to occupy more than forty feet in width and to run in nearly or quite a straight line from the outlet or discharging point of said coal bank to the Ohio River at the inclined plane where coal is now shipped, said roads entering out lot about 160 feet from its northerly corner, and running west a few degrees south until they pass out of said -lot about two hundred and fifty feet from said northerly corner, and it is further understood that it is a part of the consideration of this conveyance that an area of at least 195 feet in width of the lots above conveyed from the front of the main factory building including and extending to the Front street on the river shall always be left (open) for a (public) promenade, to be however, always under the control of said Cotton Mill Company and improved and protected in such manner as they shall deem advisable.”
At and prior to the time of said conveyance said Cannelton Cotton Mills had arranged to erect on said real
•The charter of said coal company afterwards expired by reason of the expiration of the time for which it was incorporated, but its business never was liquidated in any way. All of its property passed by operation of law to its stockholders, who, August 22, 1905, sold and by their deed conveyed to appellant herein all of the property and assets of said coal company including its interest and title in and to said condition and reservation contained in said deed to said Cannelton Cotton Mills, and appellant is now the owner and holder of the same.
In July, 1918, and before appellee commenced the erection of any building on said real estate appellant caused to be served a notice on appellee not to encroach on said real estate, nor to begin the erection of a building thereon, nor to use it in any way other than contemplated in the reservation. From the time of the execution of said deed up to within ninety days of the filing of this action said Cannelton Cotton Mills and appellee herein its successor in interest, observed and lived
Appellant prays that appellee may be enjoined and restrained from the further erection of said building on said area so reserved in said deed; that appellant may have a mandatory injunction compelling the removal from said area of so much of said building as may be already erected and for other proper relief.
In Van Duyn v. Chase & Co. (1910), 149 Iowa 222, 128 N. W. 300, the court says: “Moreover, it is not to be overlooked that the law favors the utmost freedom in dealing with real property. It is recognized as an article of commerce. As new wants develop and business increases and expands, the uses to which devoted are constantly changing. To tie up realty with restrictions and prohibitions, where the fee is conveyed, is opposed to the settled business policy of the country; and for this reason, in construing deeds containing restrictions and prohibitions as to the use, doubts are to be resolved in favor of the free use of the property.” In the consideration of this case we shall be governed by these principles.
The complaint avers that the grantee in the deed had arranged to erect a main factory building, and that within one year it did erect such a building, but there is nothing in the complaint that indicates that it was an extensive building such as it was authorized to erect under the conditions of the deed. If, when it had finished this building, it had exhausted its rights, and could not enlarge, then it was not a building which was' capable of being extended. For aught that appears the building now contemplated may be the appendage mentioned in the deed. Surely it was not contemplated by' the parties at the time that the deed was made that the country would not further expand, that there would be no growth in commercial affairs, and that, as the years go by, there would be no occasion for greater operation of such mill industry. The words of the deed seem rather to contemplate a growth of the industry to larger quarters in keeping with surrounding commercial conditions. To so hold as to prevent appellee from enlarging its plant to meet present commercial conditions and requirements, of necessity inflicts upon appellee a substantial injury. To avoid this if possible, appellee is certainly entitled to equitable consideration. If appellant will suffer any injury by the construction
Other reasons are presented to justify the trial court in sustaining the demurrer to the complaint, but the foregoing are sufficient to warrant us in holding that the court did not err in its ruling. The judgment is affirmed.