Barth v. Pittsburgh
| Decision Date | 12 January 1911 |
| Docket Number | No. 21,809.,21,809. |
| Court | Indiana Supreme Court |
| Parties | BARTH et al. v. PITTSBURGH, C., C. & ST. L. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Floyd County; W. C. Utz, Judge.
Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company against Elizabeth Barth and others. Decree (90 N. E. 488) for complainant, and defendants appeal. Case transferred from the Appellate Court. Reversed, with instructions.
See, also, 90 N. E. 322.
John D. Welman and C. L. Jewett, for appellants. M. Z. Stannard, for appellee.
Appellee successfully maintained an action for an injunction to prevent appellees from removing a railway switch from the real estate of appellee Elizabeth Barth. The special findings of fact show that appellant Elizabeth Barth owned certain real estate in the city of New Albany on the south side of and abutting on State street between Eighth and Ninth streets in the city of New Albany. State street runs in a general easterly and westerly direction in which appellee maintains its main track, and she also owned real estate on the south side of and abutting on Macbeth street in that city, which ran in a general southeasterly direction from Ninth street, from a point some distance south from State street, and between Ninth and Tenth streets which latter ran in a northerly and southerly direction. On the land south of Macbeth street, under lease from Elizabeth Barth was the plant of appellant the August Barth Leather Company. The city council of New Albany on April 20, 1901, authorized the railway company to construct a switch from its main track on State street from a point near the east line of Eighth street along Macbeth street to and across Tenth street to the property line of the American Plate Glass Works, occupied by the New Albany Manufacturing Company, which abutted on the east line of East Tenth street; the purpose being to connect the main line by a switch with the plant of the leather company and the New Albany Manufacturing Company, which is located on the east side of, and abutting on the east line of, East Tenth street. July 25, 1903, appellee entered into a written agreement with the New Albany Manufacturing Company for the construction and maintenance of side tracks 6 and 24, all of which, except the west 50 feet of spur 24 within the machine shop, was to be constructed and maintained and owned by appellee with provisions substantially the same as in the leather company contract, except that the railway company, its successors and assigns, should have the right “at any time after notice in writing to the second party, manufacturing company, to discontinue the use of said side track, to remove the connections, switches, and frogs, and to enter upon the property of the second party and take up and remove,” etc., its own tracks.
On September 2, 1903, Elizabeth Barth executed to appellee a written instrument reciting the fact of the agreement with the leather company and the manufacturing company, and reciting track No. 6 as “beginning at a point in the southerly main track of the aforesaid railway east of Eighth street, and extending southeasterly to the west line of Eleventh street produced southerly to the Ohio river, the route of said track being shown on plan attached hereto marked ‘Exhibit A,’ and made part of this conveyance,” etc. It recites the route of the proposed track No. 6 over the real estate of Elizabeth Barth, specifically describing it, and reciting that for a consideration she had The plat made exhibit of this instrument shows one main red line from the main track at Eighth street to the east line of Eleventh street, with a line on each side in red shaded between, so as to show a heavy shaded line from the north line of Elizabeth Barth's property near Eighth street to the west line of Tenth street, with a single red line marking spurs 23 and 24, and a white line in continuation of track 6 from the east line of Eleventh street, in the same general southeasterly direction.
On March 3, 1907, appellee entered into a written agreement with the leather company plant for the construction and maintenance of said track No. 23, recited therein to connect with a proposed side track No. 6, by which appellee was to furnish all the materialand labor, and construct and maintain the track No. 23, with ownership vested in the railway company, with
During the year 1903 appellee constructed a switch across the land between Eighth and Ninth streets and through a portion of Macbeth street to a point east of the east line of Tenth street where it diverged southeasterly through the plant of the New Albany Manufacturing Company to the east line of Eleventh street, known as “Switch No. 6,” and from a point near the west line of Eleventh street a spur westwardly through the New Albany plant...
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- Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Barth
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Pittsburgh, C., C. & St. L. Ry. Co. v. Barth
...circumstances leading up to the institution of this action reference is here made to the opinion of this court in Barth v. Pittsburgh, etc., R. Co., 175 Ind. 554, 93 N. E. 535. Subsequent to the decision in that case appellee instituted this proceeding to recover possession of certain lands......