137 Ky. 216 | Ky. Ct. App. | 1910
Opinion of the Court by
— Reversing.
On January 13, 1899,’ a written contract was entered into between Jolm Hurley, Sr., John Hurley, Jr., and George Hurley of the first part, and the Knox Creek Lumber Company of the second part, which among others contained the following provisions : ‘ ‘ That in consideration of the sum of $300.00 to them in hand paid by the said party of the second
Together with the right of way through and over said described tract of land for the purpose of cutting, removing, transporting, and manufacturing said timber and trees into lumber or any other timber and trees now owned or hereafter to be acquired by said party of the second part, its successors, or assigns on other lands, which it may desire to transport through and over said tract of land, and for these purposes to build, construct, and operate any and all needful tramroads, buildings, slides, chutes, and other improvements necessary to cut, remove, transport, and manufacture said trees or timber into lumber. Said party of the second part is to be allowed to remove when it ceases its operations contemplated hereunder, all improvements placed on said land by it.
Together also with the full right to enter upon a certain other tract of land owned by the said parties of the first part situated on said*Knox creek in said Pike county and more particularly described as follows: [Here follows description of tract.] For the purpose of building, constructing, operating and maintaining a tram, rail or other road through and
This suit was brought by the Hurleys on March 25, 1908, in which they charged that they had been compelled to pay $15 for the carriage of their freight wrongfully. They asked a specific performance of the contract and judgment for the sum paid and all proper relief. On motion of the railroad company, the plaintiffs were required to elect in whose name the plaintiffs would prosecute the action; thereupon they elected to prosecute it in the name of John Hurley, Jr., and the action was dismissed without prejudice as to the other of the plaintiffs. The railroad company then filed an answer, to which the plaintiff demurred. 'The court overruled his demurrer to the answer, and, he electing to stand upon his demurrer, his petition was dismissed. The abové are the facts of the case as shown by the' allegations of the answer which must be taken as true on demurrer.
The agreement to carry his personal freight free of charge was a part of the consideration going to Hurley for the grant of the right of way. The contract having been duly recorded, and the road being built on the ground, Blankenship bought with notice of it. At the time he bought Hurley had parted with the right of way, and he had only title in him to the land subject to the right of way. Blankenship acquired by his deed only title to the land subject to the right of way. He took no interest in the right of way. Hurlejr did not then own it. He had previously sold the right of. way. A part of the consideration had not been paid him. Blankenshijj took no interest in this. It was entirely immaterial to him whether
Section 215 of the Constitution is in these words: “All railway, transfer, belt lines, or railway bridge companies shall receive, load, unload, transport, haul, deliver and handle freight of the same class for all persons, associations or 'corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the same method of payment.” This section is also enforced by section 817, Ky. St. 1894. The Constitution was made in 1891 and the statute in 1893. The contract in question was made in 1899. It is .insisted that the contract is enforceable because the agreement to carry the freight free of charge is based on a valuable consideration — that is, the grant of the right of way — but it will be observed that by the Constitution, all railway companies are required to transport freight of the same class for all persons for the same method of payment. The purpose of the Constitution is to secure perfect equality between shippers, and to this end all ship
The language of the Constitution is too plain to admit of any other construction, and must be enforced. As the railway company can not carry the Hurley’s freight free of charge without violating both the Constitution and the statute, the contract is not one which may be specifically enforced by the court. In L. & N. R. R. Co. v. Mottley, 133 Ky, 652, 118 S. W. 982, the contract relied on was made in 1871, when such contracts might be lawfully made and, the contract being valid when made, was not made invalid by the subsequent adoption of the Constitution, the language of which does not warrant a retrospective application. Besides, the state under the Constitution of the United States can not impair the obligation of a contract.
It is true Hurley had no contract with the railroad company. He made his contract with the Knox Creek Lumber Company; but the Knox Creek Lumber Company did not pay the consideration for the grant. The deed was recorded. It showed the consideration was unpaid, and under the statute the grantor has a lien upon the land for the unpaid consideration. The railway company took the right of way subject to this lien. It can not keep the land without paying for it. The law does not permit it to carry out the contract specifically, but there is no reason why its lessor may not pay the charges on Hurley’s freight as before. If the contract is not complied with, Hurley is entitled to a lien on the right of way for such a sum as will fairly compensate
Judgment reversed and cause remanded for further proceedings consistent herewith.