266 Pa. 1 | Pa. | 1920
Opinion by
In 1885 H. J. Klingler and H. S. Klingler, trading as Klingler & Company, were the owners of a warehouse in the Borough of Butler, used by the firm in connection with their business as dealers in grain. The lot adjoining their premises was owned by Charles Duffy. Along the opposite side of Duffy’s lot was located a side track known as the “Purvis Switch” of the Pittsburgh & Western Railroad Company. Klingler & Company, to procure switch connection with the siding referred to entered into an agreement with Duffy, under seal, dated
The first question for consideration is the extent of the estate passing under the agreement. We find no express grant of the property, merely an agreement to let Klingler and the railroad company use the ground on which the switch was located as long as they wished to do so, at an annual rent to be paid by the “party of the second part” who was a member of the firm of H. J. Klingler & Company. We find nothing in the agreement indicating the time for which the grant was given, nor are the .words “heirs or assigns” used. The general rule of law,
With respect to the further contention that the switch was located by the railway pursuant to its right under eminent domain, and that the agreement in question was merely evidence of the consideration to be paid for the right, we find nothing in the proofs offered by plaintiff to sustain this view. The fourth finding of the court below to the effect that, previous to the date of the agreement, the Pittsburgh & Western E. E. Co. surveyed and located the switch in question does not help plaintiffs. The agreement was dated August 1, 1885. The only evidence relating to the date of the location of the switch is found in the testimony of the supervisor of the railroad company, who stated a switch was laid across the Duffy lot under his instruction in the latter part of 1885, or the early part of 1886, and also the wording of the agreement wherein reference is made to the ground “upon which said track or switch is located.” In absence of
The decree entered by the court below is reversed, the injunction dissolved and the bill dismissed. Costs to be paid by appellee.