Ecton v. Lexington & E. Ry. Co.

• Decision Date: 14 December 1900
• Citation: 59 S.W. 864
• Parties: ECTON et ux. v. LEXINGTON & E. RY. CO. [1]
• Court: Kentucky Court of Appeals

59 S.W. 864

ECTON et ux. v. LEXINGTON & E. RY. CO. ^[1]

Court of Appeals of Kentucky.

December 14, 1900

Appeal from circuit court, Clark county.

"Not to be officially reported."

Action by C. B. Ecton and wife against the Lexington & Eastern Railway Company to compel the specific performance of a contract, or, if this could not be had, to recover damages for its breach. Judgment for defendant, and plaintiffs appeal. Reversed.

B. F Buckner, for appellants.

E. S Jouett and Arthur Cary, for appellee.

HOBSON J.

C. B Ecton and wife conveyed to the Kentucky Union Railway Company the right of way, and in addition thereto a piece of ground for depot purposes, lying at the crossing of the Clark and Montgomery turnpike furthest from Winchester. The turnpike at this point crosses the railroad at an acute angle. Ecton and wife contended that the piece of ground conveyed for depot purposes lay east of the crossing, and the railroad company located it west of the crossing. The Kentucky Union Railway Company built a side track and a small depot on the west of the crossing, and then failed. At the sale under order of court of its property and franchises, the Lexington & Eastern Railway Company became the purchaser, and is now the owner of the property. This suit was filed by Ecton and wife to compel the specific performance of the contract, or, if this could not be had, to recover damages for its use. They sought a judgment establishing the station on the land east of the crossing, and also alleged that no depot had been built either east or west of the crossing, within the meaning of the contract; that the structure which had been put up was only temporary, and not intended for permanent purposes. After full preparation, the court below dismissed the petition.

The first question to be determined is whether the location of the depot is east or west of the turnpike crossing. The deed, omitting immaterial matters, is as follows: "This indenture, made this 26th day of September, 1888, between Mary Elizabeth Ecton, wife of C. B. Ecton, and C. B. Ecton, her husband, parties of the first part, and the Kentucky Union Railway Company, party of the second part, witnesseth that for and in consideration of the sum of thirty-five hundred dollars cash in hand paid, the receipt of which is hereby acknowledged, the parties of the first part have sold, and do hereby convey, unto second party, its successors and assigns, forever, all that strip of land lying in Clark county, Kentucky, on and near the Clark and Montgomery turnpike road, about three miles from Winchester, beginning," etc. (here follow courses and distances), "to the beginning, containing eight and twenty-six one hundredths acres of land; the said land being the same sought to be condemned by proceedings in the Clark county court begun by said company against first parties, August 15, 1888." "Also a tract of land containing one acre, located adjacent to said strip, bounded by said strip on the one side, the Clark and Montgomery turnpike center line on the other side, and a third line drawn perpendicular to the south side of the railroad line; this triangular piece of land to be laid off at the crossing of the said turnpike furthest from Winchester, and on the east side of said crossing. Said land is to have established upon it and maintained by said company a station at or near the point in the map of said company's road in the Clark county clerk's office marked 'Depot,' and a depot shall be erected thereon when said railroad is ready for operation of trains thereon through said land." "Said triangular piece of land shall be used by second party only for railroad purposes, and when used by it for other purposes the title shall revert to the present owners." The section of the map in the Clark county clerk's office referred to in the deed, and an enlargement of it showing the acre of ground claimed by the parties, respectively, are as follows:

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In Devlin on Deeds (section 1020) it is said: "A deed for a description of the land conveyed may refer to another deed or to a map, and the deed or map to which reference is thus made is considered as incorporated in the deed itself." This rule has often been recognized by this court, and under it we must look to the deed and map taken together to determine the...