175 Ind. 554 | Ind. | 1911
Appellee successfully maintained an action for an injunction to prevent appellants from removing a railway switch from the real estate of appellant Elizabeth Barth. The special findings show that appellant Elizabeth Barth owned certain real estate in the city of New Albany on the south side of, and abutting on State street, between Eighth and Ninth streets in said city. The street upon which appellee maintains its main track runs in a general easterly and westerly direction. Appellant Elizabeth Barth owned real estate on the south side of, and abutting on Macbeth street, which begins at Ninth street, at a point some distance south from the street upon which appellee’s main track
“at any time after notice in writing to the second party-manufacturing company — to discontinue the use of said side-track, to remove the connections, switches and frogs, - * * * and to enter upon the property of the second party, and take up and remove [its own tracks].”
On September 2, 1903, Elizabeth Barth executed to appellee a written instrument reciting the execution of the agreements with the leather company and the manufacturing company, and designating track No. 6 as
“beginning at a point in the southerly main track of the aforesaid railway east of Eighth street, * * * and extending southeasterly to the west line of Eleventh street produced southerly to the Ohio River, * * * the route of said track being shown on plan attached hereto, marked exhibit A, and made part of this conveyance.”
“granted, bargained and sold * * * to appellee the right to enter upon said premises, and to construct, maintain and operate thereon said side-tracks, provided said side-tracks shall not be used for the storage of cars, and no cars shall be allowed to remain thereon longer than is necessary for loading and switching purposes, where the same now is or may be surveyed and located. * * * The width of land to be occupied for this purpose, however, not to exceed fourteen feet. * * * To have and to hold the above-described rights and privileges unto said * * * company, its successors and assigns for so long a time only as such company its successors or assigns shall elect to continue the existence and use of said side-track No. 6, and for so long a time only as said company shall maintain said side-track No. 23 for the use of the August Barth Leather Company, its successors or assigns. * * * Upon removal, all right in the railway company to cease and determine.”
The plat, made an exhibit of this instrument, shows one main red line from the main track at Eighth street to the east line of Eleventh street, with a line on each side in red, shaded between, so as to show a heavy line from the north line of Elizabeth Barth’s property near Eighth street to the west line of Tenth street, with a single red line marking spurs No. 23 and No. 24, and a white line in continuation of track No. 6, from the east line of Eleventh street, in the same general southeasterly direction.
On March 3, 1907, appellee entered into a written agreement with the leather company, concurred in by Elizabeth Barth, for the construction and maintenance of side-track No. 23, intended, as stated therein, to connect with a proposed side-track No. 6; and appellee was to furnish all the material and labor, and construct and maintain such side-track, with ownership vested in the railway company, with
“the right to use without cost the whole or any part of said siding No. 23 in connection with other business*558 than that of the second party [the leather company] when said siding is not occupied by the second party, providing such use of siding No. 23 will not interfere with the handling of the business of the second party. The second party agrees that without the written consent of the first party it will not direct or authorize the use of said track No. 23 by or for the benefit of another party, not one of the parties hereto. * * * The second party agrees that the first party, its successors or assigns, shall have the right at any time, after securing consent from the second party, to discontinue the use of side-track No. 23, to remove the connections, switches and frogs upon the property of the first party, and to enter upon the property of the second party and take up and remove so much of side-track No. 23 belonging to the first party as may be located thereon; the first party, in such case, to commit no unnecessary injury to the property of the second party.”
During the year 1903 appellee constructed a switch across the land between Eighth and Ninth streets and through a portion of Macbeth street to a point east of the east line of Tenth street, where it diverged southeasterly through the plant of the New Albany Manufacturing Company to the east line of Eleventh street, known as switch No. 6, and from a point near the west line of Eleventh street constructed a spur westwardly through the plant of said manufacturing company, nearly to the east line of Tenth street, known as switch No. 24, and had constructed a spur from a point near the west line of Ninth street, southeasterly into and through the property of Elizabeth Barth between Ninth and Tenth streets, occupied by the leather company plant, nearly to the south line thereof, known as switch No. 23. Concurrently with the construction of said side-tracks, appellee took up another side-track connection between its main track and the premises of the New Albany Manufacturing Company. The system of side-tracks was completed and set in operation in the year 1903, and has ever since been maintained and operated. It is the purpose of appellee to extend track No. 6 from its easterly terminus on the premises of the New Albany Manufacturing Company
There was a motion to modify the decree by striking out thereof the portion before referred to as not being within the issues, nor warranted by the facts found or the conclusions of law stated, which was overruled. The questions here presented arise upon exceptions to the conclusions of law and the motion to modify the decree. The evidence is not in the record.
Appellants’ contention is, that the court erred (1) in its conclusion of law that the agreement was a license and not a lease; (2) that the agreement created a tenancy at the will of appellee, and equally a tenancy at the will of Elizabeth Barth; (3) that the agreements between Elizabeth Barth, the leather company and appellee were void for want of mutuality; (4) that the court erred in holding that the frequent storage of cars, as found, was not a breach of the contract authorizing rescission by Elizabeth Barth; (5) that by violating the agreement as to storing cars and proposing to extend track No. 6 beyond Eleventh street, in violation of the agreement, appellee estopped itself from obtaining injunctive relief, as not having done equity.
The findings show that the notice to remove the tracks was given December .30, 1907, that the action for injunction was commenced January 3, 1908, that the notice given was to remove the tracks immediately, that at the time the suit was begun it was appellants' intention to remove the tracks, and that they were only prevented by the restraining order, so that under appellants’ own construction of the agreement the necessary notice was not given to authorize the forcible removal of the tracks.
It is not to be passed without notice that it is found that the system of tracks was constructed and put in operation during the year 1903. The contract with the New Albany Manufacturing Company bears date of July 25, 1903, that of Elizabeth Barth, September 2, 1903, and that with the leather company, March 3, 1907, in which case it is recited that the tracks are proposed tracks. We can only reconcile the apparent discrepancy upon the ground that there is a mistake in the date of the contract with the leather company, or that it was formally executed long after a tentative agreement for the construction of the tracks was made, and after they had been constructed. No explanation of this discrepancy is offered, and throughout, the date, March 3, 1907, is treated as correct. If that be so, there being no finding as to when cars were stored on the tracks with relation to March 3, 1907, if it had occurred before the making of the contract of March 3, 1907, and within eleven months of the date of the notice to remove them, it seems to have been treated as inconsequential in the making of the contract.
Whether the agreement be regarded as a tenancy at will, or as a license coupled with an interest, the agreement not to use the tracks for the storage of cars, and the agreement that tracks should not extend beyond the lands of Elizabeth Barth, except track No. 6 to the New Albany Manufacturing Company, are clearly conditions subsequent. They are not made grounds for revoking the agreement. If either constitutes a substantial breach, however, it would furnish
The finding with respect to the vibrations in the building occupied by the leather company might furnish grounds for the intervention of a court to prevent the extension of the track if unauthorized, or if the extension was authorized the use thereof in a manner not contracted for might furnish ground for an action for damages; but we see no ground for the arbitrary action contemplated by appellants in removing the tracks, and the injunction in that respect is correct.
The judgment is reversed, with instructions to the court below to restate the conclusions of law, by restricting them to the one question of the right of appellee, upon the facts found, to maintain this suit at the time this suit was begun, and to sustain appellants’ motion to modify the decree by eliminating the portion thereof embraced in their motion to modify, and enter a decree upon such conclusion of law.