Hazen v. Colossal Cavern Co.

• Decision Date: 29 September 1903
• Citation: 76 S.W. 116
• Parties: HAZEN et al. v. COLOSSAL CAVERN CO. et al.
• Court: Kentucky Court of Appeals

76 S.W. 116

HAZEN et al. v. COLOSSAL CAVERN CO. et al.

Court of Appeals of Kentucky.

September 29, 1903

Appeal from Circuit Court, Edmonson County.

"Not to be officially reported."

Bill by the Colossal Cavern Company and others against L. W. Hazen and others. From a judgment in favor of defendants plaintiffs appeal. Affirmed.

B. F Proctor, Proctor & Herdman, and John W. Ray, for appellants.

Edward W. Hines, Mitchell & Du Bose, and Thos. B. Harrison, Jr., for appellees.

HOBSON J.

On January 3, 1896, a written contract was entered into between L. W. Hazen and Sophronia Hazen, his wife, of the first part and M. H. Smith, trustee, of the second part, whereby, in consideration of $5,000, $550 of which, as was cited in the contract, had been paid in cash and the other $4,450 to be paid in stock of the corporation thereafter to be organized the first parties conveyed to the second parties all of their right or title in all of the land owned by them in the counties of Edmonson and Barren on which was located any cave or entrance thereto, and especially the new cave recently discovered by L. W. Hazen; also all cave rights and privileges owned by them in two other tracts of land. It was stipulated in the contract that Smith was to organize a corporation to operate the cave property, and when the corporation was organized the stock referred to was to be delivered to Hazen, and Smith was to convey to the company the property conveyed to him; the land owned by Hazen and wife being described in the deed as the Jordan Blair tract of 35 acres and an undivided one-half interest in the Daniel Isenberg tract. Smith also agreed to furnish Hazen a purchaser for his stock at par in one and two years from that date, if he wished to sell. As copied in the record, only Sophronia Hazen's name is signed to this deed, but her husband's name, as well as hers, is used in the body of the deed in the statement of the parties, and it was acknowledged by him as well as by her. On January 24, 1896 another contract was made between Hazen and wife, of the first part, and M. H. Smith, trustee, of the second part, in which it is recited that it is a modification of and a supplement to the agreement of January 3d. In this contract it is recited that it is made in consideration of the agreements and stipulations thereafter made, and it is stated that the first parties have purchased, with money furnished to them by Smith, trustee, certain tracts of land and interests therein, and they thereby convey the same to him. Then follows a description of 10 tracts of land by metes and bounds. Then follows a conveyance of all the right and title of the first parties to all the caves and caverns lying in or under some 18 tracts of land described by metes and bounds. It is then stipulated that, instead of the $4,450 being paid to Hazen in the capital stock of the corporation, Smith has heretofore paid $2,000 in money, and is to pay $1,000 in 30 days and $1,000 in 60 days. It is further stipulated that the corporation should give Hazen and wife the exclusive right to take pictures in the caves on the land conveyed to Smith on January 3d, or by this deed, for a period of five years from that date; the privilege to be personal, and not assignable. The further privilege was also given them for five years of taking such specimens from the cave as the corporation saw fit to allow, but this privilege was to be personal, and they were not to send any one else into the cave. The contract then concludes with these words: "It is further agreed by the parties that the first parties shall not, nor shall either of them, purchase any cave property or cave rights in either the county of Hart, Edmonson, or Barren, except for the second party; and all such property and rights purchased by said first party or either of them shall be conveyed to Daniel Breck, who will hold the titles in trust for the second party, and convey the same to him or to said corporation, as said second party may direct. If the first parties,...