115 Ky. 369 | Ky. Ct. App. | 1903
Opinion op the court by
Affirming as to L. & •N. R. R. Co., and reversing as to Bedford-Bowling Green Stone Company.
This action involves the rights of appellees to the use of a railroad switch which runs from the Memphis Junction of the Louisville & Nashville Railroad Company’s line in Warren county, Kentucky, about 3Y> miles, to the quarry of the appellant Bedford-Bowling Green Stone Company. It is not necessary, for the purpose of this case to
In 1870 Hugh F. Smith and his wife, Lydia A. Smith, were the owners in fee simple of a tract of land in Warren county, Kentucky, known as the “Howarth Tract;” and they and one B. C. Sanders, together, owned the perpetual right to quarry the fine cutting stone in an adjoining tract, known as the “Loving Land.” Smith and wife owned an undivided' two-thirds interest, and B. C. Sanders an undivided one-third interest. Sanders had no interest in the Howarth land. On the 22d day of January, 1870, Smith and wife and B. 0. Sanders entered into a written lease with Owen McDonald & Co., whereby they leased to them for a term of 80 years the right to work and to use all the fine cutting stone contained on the two tracts of land. In
John Oman, having opened a quarry on the Loving tract, set apart to him, very near the quarry operated by the Bedford-Bowling Green Stone Company, is naturally very anxious to use the switch in transporting his machinery to his quarry, and in transporting his stone to the main line
The railroad switch involved in this litigation was' built by the White Stone Quarry Company, and in so doing they entered into a contract with the Louisville & Nashville Railroad Company, by which it leased or hired all of the material which went into it, from the railroad company, upon a stipulated rent, to be equal to i6 per cent, per an
While it is the duty of the railroad company thus to receive and transfer freight for appellee, this can be done only at points along the line of the railroad switch in question at which appellee may lawfully receive or ship it. He has no right to trespass upon the private property of appellants in order to reach the road. We think, under his right to the cutting stone, as now fixed by contract, appellee is entitled to ship and receive freight at' any reasonable point along the road, as now constructed, which lies upon any part of the Loving tract, which was set apart and conveyed to him in the settlement had between him and the Columbia Finance & Trust Company. Although the part of the Loving tract upon which the railroad switch lies
For the reasons herein given, this case is affirmed as to the Louisville & Nashville Railroad Company and reversed as to the Bedford-Bowling Green Stone Company, for proceedings consistent with this opinion.
Petitions for rehearing and lor modification and extension of the opinion overruled.