157 Ind. 228 | Ind. | 1901
It appears from the record that appellant owned a tract of land near tire city of Elkhart, Indiana, known as “Barney’s driving park” which was fitted up and maintained by him as a driving and racing park at an expense of $15,000; that on and prior to August 25, 1895, the Indiana Electric Railway Company owned and was operating a street railway in said city, and that the said driving
In accordance with said contract appellant paid for sufficient steel rails to make said extension and the same were delivered to said company, $500 of the cost and value of said rails being donated by appellant. The company placed said rails and laid said track so as to extend said railway to said park, and began to operate the same on or about September 5, 1895, as provided in the contract, and continued to operate the same until it sold said road to the Indiana Railway Company. The last named company continued to operate said road and the part extending to said driving park until about the 25th day of July, 1899, when said company without the consent and over the protest of appellant took up the rails and ties of said railway track constructed under said contract and removed them and wholly abandoned and ceased h> use that part of its railway.
The complaint is in two paragraphs, the first, in addition to the foregoing facts, alleges “that it was the intention and understanding of the parties in making said contract that said railway track should remain and be operated permanently and perpetually; that the Indiana Railway Company at the time it purchased said road had full notice and knowledge of said contract and the rights of appellant; that his damages are great and irreparable; that with said railway extending to said driving park the latter is worth $75,000, and that the removal of said railway track caused a decrease of $70,000 in the value of said driving park.” The second paragraph is the same except it alleges “that it was the intention and understanding of the parties in making said contract that said railway track should remain and be operated a reasonable time; that a reasonable time would be twenty-five years.” The prayer is for a mandatory injunction “to compel appellees to replace and operate said track; and if that relief cannot be had, for $70,000 damages, and if this relief cannot be had, for
The ground upon which appellant seeks a recovery is that after operating the road for about four years, the company ceased to operate it and removed the part of the track described in the contract. By the terms of the contract sued upon the company was to' “place said rails, lay said track and operate it, and have it ready for operation as early as the 5th day of September, 1895”. The allegations of the complaint show that this was done in conformity with the provisions of the contract, and that the company and its successor continued to operate the same until July 25, 1899. These allegations do not show any breach of said contract by appellees. Appellant advanced the money to purchase the iron, and made the donation of $500 out of the money so advanced to have the track built and operated by a certain day. It was a gift executed when the company built and operated the road by the day named. The donation for the construction of the track cannot be held to constitute a consideration for operation for any definite period.
If the company was willing to operate the part of said road mentioned for any definite period, and appellant so desired, such a clause should have been incorporated in the contract. As the contract does not fix any definite time during which the company should operate the road, the right to determine that question, so far as appellant is concerned, remained with the company. It may be that appellant believed that if he secured the construction of the road to the park that the profits of the company on that part of the road .would be such as to secure its perpetual operation. It is true that the contract sued upon may be x*ead and construed in the light of the position and surroundings of the parties in regard to the subject of the contract (Ransdel v. Moore, 153 Ind. 393, and cases cited), but the same cannot
It will be observed that the rights and interests of the public are in no way involved in this action.
Pierce v. Tennessee, etc., R. Co., 173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591, is the only case cited by appellant, but that case does not sustain his contention. Judgment affirmed.
Baker, J., did not participate in this decision.