206 Ky. 572 | Ky. Ct. App. | 1925
Opinion of the Court by
.Affirming.
Some years ago Simeon Chappel -built a spur track connecting his coal land with the L. & N. Railroad. After-wards he conveyed a part of his land and one-half of the spur track to another, under whom the Wagner Coal Company now holds. Afterwards he conveyed other land and one-half the spur track to the Pineville Coal Company. The Roth Coal Company holds under a lease made 'by its vendee, or one- holding under it. By the terms of the lease the Roth Coal Company agreed with its lessor to keep- in repair the spur track. In the spring
It is insisted for the defendant that the plaintiff ships five times as much coal as it ships and has a much larger acreage of coal than the defendant. But this is not material. Neither could operate its coal mine without the spur track. Each must use it every day. The defendant owns one-half the property. The cost of the improvement should fall on the owners in proportion to their title and not according to the number of tons of coal shipped over the track. If the defendant exhausts its coal and has no further use for the spur track it will still own one-half of it and this it can sell. The owners of the property must pay for the improvement in the proportion of their title to the property. Alexander v. Ellison, 79 Ky. 148; Ward v. Ward, 29 L. R. A. 429.
The fact that appellee bound itself to its lessor to keep the spur track in repair in nowise affects the rights or duties of the appellant, who is a stranger to that instrument. If that lease had not been made each of the owners of the spur track would be bound to contribute equally to its repair, and appellant-being a stranger to that contract is under the same obligation now as before it was made.
The old trestle had become rotten from lapse of time. The finding of the jury as to the amount of the necessary cost of repair is well within the evidence and on the whole case no substantial right of the defendant was prejudiced.
Judgment affirmed.