194 Ind. 176 | Ind. | 1923
Lead Opinion
Appellee sued to recover possession of certain real estate, with damages for alleged unlawful holding over after the termination of a lease, and re-’ covered a judgment for possession with $1,379.07 as damages, and costs. The only error assigned is overruling the motion for a new trial, the specifications being that: (a) the finding is not sustained by the evidence; (b) and is contrary to law; (c) that the damages are excessive; (d) that the trial court erred in admitting certain evidence; and (e) in rejecting certain other evidence.
• The paragraph of complaint alleging the execution of a written lease, which is the only one sustained by any evidence, alleges that the plaintiff, by an instrument of writing, leased to certain of the defendants (appellants) then doing business under the name of Riverside Coal Company, for the term of three years from July 1, 1911, certain real estate in the city of In
Each defendants (appellant) answered by a denial. The trial court found for the plaintiff as against the defendants, that plaintiff was “entitled to the possession of the property described in its complaint, and * * * $1,379.07, as its damage, together with its costs”, and rendered judgment accordingly. Appellants complain of the alleged insufficiency of the evidence to prove that the strip of ground next to the railroad switch, which the coal company continued to use after being served with a notice to vacate the leased premises, was covered by the lease. The president and principal stockholder of the Riverside Coal Company, being one of the original lessees, and a defendant in this action, testified that he had lived in that neighborhood since 1877, and that there had been no fence along the east side of the railroad switch “since 1902”, but said there had once been a fence running northwest from the warehouse. The vice-president of the plaintiff company, who was also its treasurer and general manager, testified that he had- been “on the ground” at its plant since 1878 and became manager in 1911, when his father died, and there had “always” been a board fence along the north side of the leased tract, next to the alley, until after the lease was made, in 1911, and
But the undisputed evidence was that appellee had been in possession under claim of ownership, since 1878, of certain lots numbered 16, 17 and 18, and of all that part of lot No. 15 which adjoined them on the west, except so much, if any, as was occupied by the right of way of the railroad switch; that lot No. 15 was triangular in shape, bordering 11.7 feet on Twenty-ninth street in front and 117.8 feet on an alley in the rear, and being 125 feet deep; that each of the other three lots was thirty feet wide; that the north side of a warehouse extended from the east line of lot No. 18 to the west line of lot No. 16, about forty feet north of Twenty-ninth street, the west end of the warehouse running diagonally southeast, parallel with the railroad switch and about twenty-five or thirty feet from it; and that the railroad switch ran northwest from Twenty-ninth street, near the west line of lot No. 15, at about the same angle as that line.
The following plat is not very accurate but may serve to make this statement more intelligible:
Appellants insist that upon this evidence the trial court was not justified in finding that the description in the lease of the ground covered by it embraced any of the ground near the railroad switch that the Riverside Coal Company continued to occupy and use after the lease was terminated. Counsel point out that the description refers to the leased premises as “the north portion of certain lots * * * lying directly north of the warehouse”, and say that no part of lot No. 15 lies “directly north” of the warehouse; and that while lot No. 15 alone adjoins the railroad switch, lands “adjacent to” the switch would not necessarily abut upon it. For convenience, we again set out the description as follows: “The north portion of certain lots adjacent to what is known as the Big Four Switch, lying directly north of the warehouse of said first party, and extending east to a board fence on a line with the east end of said warehouse, the north boundary being the south line of the alley”, etc. And we again call attention to the stipulation in the lease that the lessee “agrees to use said land for nothing but the unloading and storing of coal.” It will be observed that the description names the north boundary of the leased premises as the line of the alley, the east boundary as
The testimony that the ground was fenced and used by plaintiff to within three and a half feet of the east rail of the switch, from about 1880 down to about 1902, and that the fence stood there many years and until it rotted down, and that the original lessees had seen the old fence there (though disputing its exact location) and leased the ground for use in “unloading” coal from cars on the switch, supports the finding that what they leased included ground within eighteen feet of the switch track, which the president of the appellant company, as well as other witnesses, testified it had been occupying after notice to vacate what it held under the lease.
The undisputed evidence was that appellants took possession of all the ground which they held south of the alley, under and pursuant to the lease from appellee, and there was no offer of evidence to the contrary. That being true, the offered evidence to the effect that the railroad company held a ninety-nine year lease on a right of way which extended east of where its track was located was properly rejected. A party who entered into possession under a lease will not be heard, before he shall have surrendered possession, to deny that, at the time the lease was executed,
From what has been said it follows that there was competent evidence to support the finding that appellants held possession of a part of the leased premises after their lease was terminated, for which appellee was entitled to recover damages. No question is presented as to whether the recovery was for the right amount, appellants insisting only that no damages at all should have been awarded. And it also follows that evidence of the rental value of the tract extending from the railroad switch eastward, with switching privileges, was properly admitted.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
The petition for a rehearing filed by appellants seems to challenge the opinion of this court for not pointing out the reason for which the cause was transferred from the Appellate Court. In its opinion, the Appellate Court had assumed to state a rule of law in terms which the Supreme Court deemed erroneous, and not proper to serve as a guide in deciding similar questions that may arise in other cases. Being convinced that the opinion of that court erroneously declared the law in some particulars, the Supreme Court transferred the case to its own docket. §1394, cl. 2, Burns 1914, Acts 1901 p. 567, §10; Barnett v. Bryce Furnace Co. (1901), 157 Ind. 572, 62 N. E. 6; American Quarries Co. v. Lay (1906), 166 Ind. 234, 76 N. E. 517. Having done so, the court proceeded to decide the case as if it had been transferred in any other of the several ways provided by law
The petition for a rehearing is overruled.