Bedford-Bowling Green Stone Co. v. Oman

• Decision Date: 28 April 1903
• Parties: BEDFORD-BOWLING GREEN STONE CO. et al. v. OMAN et al.
• Court: Kentucky Court of Appeals

73 S.W. 1038

115 Ky. 369

BEDFORD-BOWLING GREEN STONE CO. et al. v. OMAN et al.

Court of Appeals of Kentucky.

April 28, 1903

Appeal from Circuit Court, Warren County.

"To be officially reported."

Bill by John Oman and others against the Bedford-Bowling Green Stone Company and the Louisville & Nashville Railroad Company. Decree for plaintiffs, and both defendants appeal. Affirmed on appeal of railroad company. Reversed on appeal of stone company.

Bodley Baskin & Morancy and John E. Du Bose, for appellant Bedford-Bowling Green Stone Co. Jas. E. Mitchell, Mitchell &amp Du Bose, E. W. Hines, B. D. Warfield, and Thos. B. Harrison Jr., for appellant Louisville & N. R. Co. L. McQuown, for appellees.

BARKER J.

This action involves the rights of appellees to the use of a railroad switch which runs from the Memphis Junction of the Louisville & Nashville Railroad Company's line in Warren county, Ky. about 3 1/2 miles, to the quarry of the appellant Bedford-Bowling Green Stone Company. It is not necessary, for the purpose of this case, to set forth the statements in the pleadings with any minute particularity. It is sufficient to say that the Bedford-Bowling Green Stone Company claims to be the exclusive owner of the switch in question; and, on the other hand, the appellees claim a part ownership, with the right to its use, and, if that be not so, that it is a part of the railroad system of the appellant Louisville &amp Nashville Railroad Company, and, as such, they have the right of shipment over it, and that the Louisville & Nashville Railroad Company has no legal right, as a common carrier, to refuse to transport freight along its line, and that the pleadings properly present these issues for adjudication. Upon the trial below, the learned chancellor held that the appellees were part owners of the switch in question, and enjoined the Bedford-Bowling Green Stone Company from interfering with their rights to its use, and required, by a mandatory injunction, the appellant Louisville & Nashville Railroad Company to transport appellees' freight over it to their quarry, at or near the end of the line. From this judgment an appeal has been prosecuted to this court.

In 1870 Hugh F. Smith and his wife, Lydia A. Smith, were the owners in fee simple of a tract of land in Warren county, Ky. known as the "Howarth Tract"; and they and one B. C Sanders, together, owned the perpetual right to quarry the fine cutting stone in an adjoining tract, known as the "Loving Land." Smith and wife owned an undivided two-thirds interest, and B. C. Sanders an undivided one-third interest. Sanders had no interest in the Howarth land. On the 22d day of January, 1870, Smith and wife and B. C. Sanders entered into a written lease with Owen McDonald & Co., whereby they leased to them for a term of 30 years the right to work and to use all the fine cutting stone contained on the two tracts of land. In consideration of this lease, Owen McDonald & Co. bound themselves to build, or cause to be built, within three years from the date of the lease, a railroad from the quarry on the land to the Memphis Branch of the Louisville & Nashville Railroad Company, and to commence operations in the quarry within three years from the date of the lease; and it was stipulated that unless this was done the lease was to be null and void. Owen McDonald & Co. were also to pay to the lessors, as a royalty, $1 for each 100 feet of all stone suitable for cutting or dressing quarried by the lessees during the term of the lease, and covenanted to keep their books open to the inspection of the lessors, so that they might settle between themselves as to their rights in the royalty. At the expiration of the term of the lease, it was stipulated that the lessees could remove all the tools and machinery, unless the lessors paid a fair price for them. Afterwards Owen McDonald & Co. conveyed their interest in the lease to the White Stone Quarry Company, which acquired the right of way from the stone quarry to the Memphis Junction of the Louisville & Nashville Railroad Company, and built thereon the railroad switch involved in this litigation, since which time the interests originally acquired by Owen McDonald & Co. have passed in regular succession from the White Stone Quarry Company to the Belknap & Dumesnil Stone Company, and from it to the Bowling Green Stone Company, and from it to the Columbia Finance & Trust Company, which conveyed it to the Bedford-Bowling Green Stone Company. In 1888 the Belknap & Dumesnil Stone Company purchased all the interests of the Smiths in both the Howarth and the Loving tracts, and thus became the owner in fee simple of the first, and the owner of a two-thirds interest in the cutting stone in the latter, tract. In 1878 B. C. Sanders, being indebted to Milton Feland and McElwain, conveyed to them his interest in the cutting stone in the Loving tract. Feland having died, in a suit to settle his estate his interest in the cutting stone was sold, and bought by appellee John Oman. McElwain in 1885 sold his interest in the cutting stone to Sallie M. Smith, and she sold it to the Belknap & Dumesnil Stone Company in 1888, so that at the expiration of the lease, in 1900, John Oman was the owner of a one-third interest in the cutting stone in the Loving tract, and the Bedford-Bowling Green Stone Company was the owner in fee simple of the Howarth tract, and of an undivided two-thirds interest in the cutting stone in the Loving tract. Between them, and in the proportions mentioned, they were the owners of all the property demised by the lease of 1870. After the expiration of the lease the Columbia Finance & Trust Company, appellants' vendor, and the appellee John Oman, in an action that was pending in the Warren circuit court between John Oman and the Bowling Green Stone Company, etc., entered into an agreement by which that case was settled, and a division made between the parties at interest as to their...