Crecelius v. New Albany Mach. Mfg. Co.

• Citation: 4 F.2d 369
• Decision Date: 27 February 1925
• Docket Number: No. 3336.,3336.
• Parties: CRECELIUS et al. v. NEW ALBANY MACH. MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

4 F.2d 369 (1924)

CRECELIUS et al. v. NEW ALBANY MACH. MFG. CO.

No. 3336.

Circuit Court of Appeals, Seventh Circuit.

December 18, 1924.

Rehearing Denied February 27, 1925.

Frank C. Dailey, of Indianapolis, Ind., for appellants.

Paul Y. Davis, of Indianapolis, Ind., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

This appeal is to reverse a decree of the United States District Court of Indiana, enjoining appellants, here called defendants, from removing railway tracks, etc., belonging to the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, here called railway company, constructed and operated upon property in which appellee, here called plaintiff, claimed and was decreed to have an easement. Instruments, relating to the alleged easement, which for brevity will be called A and B, are hereinafter set out.

The original defendant, Elizabeth Barth, now deceased, the grantee in A, and the present defendants, her children and heirs at law, were citizens of and resided in Indiana. The original plaintiff, Jane De Pauw Gates, a daughter of Newland T. De Pauw, the president of the grantor in A and the principal grantor in B, was a citizen and resident of the state of Kentucky. Newland T. De Pauw died in 1913, and through his will and by purchase from her sister Jane De Pauw Gates became the owner of the fee to certain premises owned by said Newland T. De Pauw, and which were, at the time of the making of A and B, and at the time Jane De Pauw Gates obtained her title thereto, occupied by the grantor in A, New Albany Manufacturing Company, under a lease, from year to year, from Newland T. De Pauw. By her father's will and by purchase from her sister, Jane De Pauw Gates became the owner of 420 shares of the capital stock of the New Albany Manufacturing Company, owned by Newland T. De Pauw at the time of the execution of A and B, and at the time of his death. The remaining 220 shares were not owned by him, and there is no allegation as to their ownership.

The bill alleges that on April 1, 1915, the New Albany Manufacturing Company, the grantor in A, together with plaintiff, leased the tract of land occupied by the New Albany Manufacturing Company to one Henry H. Martin, to be used and occupied by him as a manufacturing plant, and alleges that it was so occupied at the commencement of the suit. It is further alleged: That De Pauw and the New Albany Manufacturing Company desired to provide, increase, and improve the facilities of the New Albany Manufacturing Company for receiving coal, etc., and that Elizabeth Barth also desired a side track for the August Barth Leather Company, a corporation in which she was interested. That to carry out those desires A was executed, as follows:

"This indenture witnesseth, that the New Albany Manufacturing Company, a corporation of New Albany, Indiana, conveys, quitclaims, and releases unto Elizabeth Barth, for the sum of one dollar ($1.00) and for other valuable considerations, hereinafter stated, the following described real estate in the city of New Albany, county of Floyd, state of Indiana, to wit: All right, title, claim, interest, and estate of the said grantor in, to, and of the tract and lot of land thus bounded: Beginning at the intersection of the west line of East Ninth street with the south line of the right of way of the Jeffersonville, Madison & Indianapolis Railroad (otherwise known as the Pennsylvania Railroad); running thence southward on said Ninth street to the north line of McBeth street; thence westward to the Grant line; thence along said line, northward, to the line of said right of way of said railroad company; and thence to the place of beginning — being all of the land lying south of the said railroad owned by De Pauw College at New Albany, Floyd county, Indiana, and deeded by said De Pauw College to the grantor herein by deed dated February 14, 1903, and recorded in Deed Record 54, at page 276 of the records of Floyd county, Indiana.

"This conveyance is made upon the consideration that said Elizabeth Barth shall convey and grant unto the said New Albany Manufacturing Company and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company a right of way and easement over the lands and grounds of said grantor beginning at a point on the south side of the present tracks of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, at such point as the said railway company shall designate west of Upper Ninth street, and extending eastwardly across and over the grounds of said grantor and the ground herein conveyed, and over and across the south side of McBeth street, and across East Tenth street, to the ground and lands now occupied by the New Albany Manufacturing Company; said right to lay and maintain said switch to exist as long as said grounds shall be occupied by said New Albany Manufacturing Company, its successors or assigns, or Newland T. De Pauw, the owner thereof, his grantees or assigns, for manufacturing purposes."

(Foregoing deed was dated April 3, 1903, and recorded June 4, 1904.)

That on the same date Elizabeth Barth, the original defendant, for a consideration passing to her from De Pauw, further agreed to grant, and did then and there grant and convey, to the New Albany Manufacturing Company, the grantor in A, and to the railway company the right to lay the switch in question. Then follows the averment:

"A copy of which conveyance, saving and excepting the notarial certificate of acknowledgment, is as follows:

"`B.

"`This indenture witnesseth, that Newland T. De Pauw and Carrie A. De Pauw, his wife, convey, quitclaim, and release unto August Barth Leather Company, for the sum of one dollar and other good and valuable consideration hereinafter set out, the right of way and easement over and along certain real estate lying immediately east of Upper Tenth street in the city of New Albany, and south of Upper Main (or High) street, which said right of way is described as beginning at a point on the north side of the railway tracks of the New Albany Belt & Terminal Railway Company now occupied, owned, and controlled by the Southern Railway Company of Indiana, at a point which is thirty-five (35) feet east of the east line of Upper Tenth street, and extending thence westwardly, upon the proper and necessary curve to carry a switch and side track from said point at the tracks of said railway company, westwardly and across Upper Tenth to the property occupied by the Barth Tanning Company, and for use of that company, its successors or assigns, and for the benefit of said tannery and tannery property, and no other person, corporation or purpose whatever.

"`Said right to lay and maintain said switch over the ground of the grantors is to continue and exist as long as said August Barth Leather Company, its successors or assigns, shall occupy said premises now occupied by it for a tannery, or for other manufacturing purposes, and is given and granted in consideration of a like grant made by Elizabeth Barth to the New Albany Manufacturing Company and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company of the right to lay and maintain a switch from the south side of the tracks now used by the P., C., C. & St. L. Railway Company immediately west of Upper Ninth street, and extending eastwardly over and along the lands of the said Elizabeth Barth, and along and over the south side of McBeth street and across Upper Tenth street, to the premises now occupied by the New Albany Manufacturing Company, and owned by said grantor, Newland T. De Pauw.'"

(Foregoing deed was dated April 3, 1903, and recorded June 11, 1904.)

It is further alleged that "shortly after the execution of said agreements, deeds of conveyance, and writings hereinbefore set out" the railway company constructed and laid down the proposed switch and track connecting the said tract of land so occupied by the New Albany Manufacturing Company and owned by the said Newland T. De Pauw with...