Haywood v. Fulmer

• Decision Date: 17 November 1892
• Parties: HAYWOOD v. FULMER et al.
• Court: Indiana Supreme Court

158 Ind. 658

32 N.E. 574

HAYWOOD

v.FULMER et al.

Supreme Court of Indiana.

Nov. 17, 1892.

Appeal from circuit court, Marion county; G. W. Grubbs, Judge.

Action by James B. Haywood, trustee, against Leander A. Fulmer and others, to enjoin defendants from entering on certain land and removing sand therefrom. From a decree denying an injunction, plaintiff appeals. Affirmed.

Hammond & Rogers, for appellant. Denny & Elliott, for appellees.

McBride, C. J.

A construction of the following writing will determine every question presented by the record in this case: “Indianapolis, Ind., April 21st, 1890. Received of Fulmer, Cooper & Co. one hundred and seventy-five dollars, in payment of sand bar on Fall creek, between Central avenue and Meridian street, and adjoining the land of F. W. Morrison on the south, and W. O. Patterson on the north, side of said creek for the year 1890. This is for the exclusive right to all gravel and sand for the year above named, and excluding all other parties from said premises. [Signed] W. O. Patterson.” When the writing was executed, W. O. Patterson, by whom it was executed, was owner in fee of the land on which the sand bar referred to was located. On the 28th day of May following, he, with his wife, conveyed the land by warranty deed to the appellant, as trustee for himself (Haywood) and two other parties. This suit was brought to enjoin the appellees from entering upon the premises, and hauling away sand and gravel from the sand bar in question. It is averred in the complaint that the appellees claim the right so to do by virtue of the foregoing writing. It is also alleged, in substance, that neither the appellant nor either of those united in interest with him had any knowledge of the existence of the writing in question at or before the execution of the deed to them, or any knowledge or notice that they had or claimed any such right to or interest in the land. The presentation of the question by both sides is able. The argument of counsel for the appellant is especially skillful and forceful. In deciding the case we will confine ourselves to the sole question discussed by the appellant. The determination of this questiondepends upon whether the writing above quoted is a lease, as the appellees contend, or is a mere license, under which, as against Patterson and others having notice of its existence, the appellees might enter upon the premises during the time limited, and remove an indeterminate quantity of sand and gravel, but which gives no interest in land itself, which is, we think, a fair statement of the appellant's contention. Among many definitions of a “lease” found in the books are the following: “A lease is a contract by which one person divests himself of, and another takes the possession of, lands or chattels for a term, whether long or short.” Wood, Landl. & Ten. § 203. “A lease at the common law is a grant or assurance of a present or future interest for life or for years, or at will, in lands or other property of a demisable nature, a reversion being left in the party from whom the grant or assurance proceeds.” Platt, Leases, 1. “A lease is a species of contract for the possession and profits of lands and tenements, either for life or a certain term of years, or during the pleasure of the parties.” 12 Amer. & Eng. Enc. Law, tit. “Lease,” 976. “No particular...