74 Ky. 321 | Ky. Ct. App. | 1875
delivered the opinion oe the court.
It is alleged in the petition that the firms of Crook & Co. and Harris & Co., under an agreement with the Louisville & Nashville Railroad Company, constructed a certain switch from the main road to their coal mines in the county of Rock-castle. The two firms were' to keep the road in repair and pay the railroad company ten per cent on the iron furnished, the latter having agreed to furnish the iron spikes, etc., in order to complete the switch.
It is also alleged that the appellant, having leased coal lands adjoining the lands owned by the appellees, and being desirous' of opening his mines, agreed with them (the appellees) to pay a portion of their liability to the railroad company, for the use of their switch in transporting his coal. He was to pay one third of the repairs, one third per cent on the value of iron, and fifty cents on each car-load of freight, and have the use of the track without any limit as to time. That he used the switch of appellees under this contract, and paid to the two firms for this use the amount required by the contract; that
A demurrer was sustained to the petition, and the appellant, standing by his demurrer, has brought the case to this court. Separate demurrers wei’e also filed by the appellee Fink, and •by J. R. Crook. As to these parties, Fink and J. R. Crook, the demuzTer was propezdy sustained. Thez'e is zzo allegation that Fink was any party, to the agreement or that he had any interest whatever in the switch constructed by his co-appellees. It is alleged that he cozisented to the agreement and advised its execution, and afterward entered into a conspiz*acy to raise the price of coal, and induced his co-appellees to violate the contract. The action is for damages resulting from the agreement between appellant and the firms of Crook <& Co. and Harris & Co., and it is difficult to perceive how this appellee can be made liable for disregarding its terms, when he was not a- party contracting, and when the petition discloses the fact that he has no interest in it. He may have advised his coappellees that they had the right to abandon their contract, and afterward entered into the alleged partnership in coal by which they attempted to create a znonopoly in the sale of this article; still his liability in this action must rest alone on the agreement; and zzot being a party to it, nor in fact any alleged cause of action against him, the court acted 'properly in dismissing the petition, so far as he was sought to be made liable.
The agreement between the parties being in parol, and the right to the use of the switch being without limit, it is insisted . by the appellees that the agreement, being in parol, is within the statute of frauds. In seeking the recovery the appellant is relying on the parol agreement- only, and it must be conceded that under a parol contract no permanent interest can' be acquired in land, or the right at all times to enter. upon it against the consent of the owner, upon no other evidence than that a parol contract giving this right had been entered into between the parties. The adoption of such a rule would.be to disregard the statute requiring the evidence of such a right to be in writing.
In the present case, if the agreement was executory, or the right to enter was not based upon a valuable consideration, and the grantee had made no expenditures or improvements by reason of it, we would have no hesitation in determining that the appellees had the power to revoke the grant without incurring any liability. The appellees (taking the allegations of the petition to be true, which must be done on demurrer) had received of the appellant a part'of the consideration he assumed to pay for the use of their property, and encouraged him, by reason of the agreement, to develop his mines and incur heavy expenditures that are worthless to him when deprived of the only means he had of taking his coal to market. The use and enjoyment of. this privilege, for which he had paid his money, required a large expenditure — a fact as well known to the appellees as the appellant.
In the case of Rerick v. Kern (14 Sergeant & Rawle) it is said that “ such a grant is a direct encouragement to expend money, and it would be against all conscience to annul it as soon as the benefit expected from the expenditure is* beginning to be perceived.”
In Washburn’s Easements and Servitudes (page 90) it is said: “ Where the owner of an estate has by parol granted an easement in his land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of the easement.”
Whether such a contract as is alleged to have been made in this case, a valuable consideration having been paid and large expenditures incurred, can be enforced in a court of equity, is not necessary to be determined. If such relief can be given, 4it must be for the reason that the party injured has no other adequate remedy. It is well settled, however, that where a consideration has been paid and necessary expenditures incurred by the grantee, in revoking the grant, the latter, like a purchaser of land by parol, must be indemnified. The extent or measure of indemnity can better be determined when the issues are made and the facts presented.
The sole question in the case arises on the face of the petition; and, conceding the facts alleged to be true, the appellant has a cause of action,-and the demurrer should have been overruled.
