Hoosier Stone Company v. Malott

• Decision Date: 10 December 1891
• Docket Number: 15,351
• Citation: 29 N.E. 412,130 Ind. 21
• Parties: The Hoosier Stone Company et al. v. Malott et al
• Court: Indiana Supreme Court

29 N.E. 412

130 Ind. 21

The Hoosier Stone Company et al. v. Malott et al

No. 15,351

Supreme Court of Indiana

December 10, 1891

From the Lawrence Circuit Court.

Judgment affirmed, with costs.

M. F Dunn and G. G. Dunn, for appellants.

N Crook and J. E. Boruff, for appellees.

OPINION

Olds, J.

The facts as found by the court in this cause are, in substance, as follows:

On the 19th day of December, 1883, the appellees, Josie F. Malott and John E. Malott, and the appellantWilliam E. Malott were the owners of the southeast quarter of the southeast quarter of section 33, township 6 north, range 1 west, in Lawrence county, Indiana; also other lands intervening between said tract in section 34, same township and range, and the Louisville, New Albany and Chicago railroad, which ran through said section 34.On said day they sold and conveyed to the appellant the Hoosier Stone Company, in consideration, of $ 3,000, by warranty deed, said first-described forty-acre tract of land, together with a right of way for a railway switch track from the line of said railroad over the said lands of the appellees and said William E. Malott, in said section 34, to said forty-acre tract conveyed as aforesaid, and pursuant thereto put said Hoosier Stone Company in possession thereof.The Hoosier Stone Company constructed a railroad switch from said railroad to said forty-acre tract so conveyed to it, which it has since used in conveying its stone quarried on said forty-acre tract to said railroad, and over which said switch said railroad company has conveyed its cars in transporting said stone so quarried on said forty acres, at the instance of said Hoosier Stone Company.On the 1st of February, 1889, the Hoosier Stone Company, without the knowledge or consent of appellees, and for a valuable consideration, subleased and conveyed to appellants Gilbert and Henry Perry, Frederick, William and Sarah Mathews and Phillip N. Buskirk the right to pass over and use said switch and way and to transport their stone over the same, said parties being engaged in quarrying stone in considerable quantities on lands of their own adjacent to said forty-acre tract so sold to the Hoosier Stone Company, and the sublessees have ever since, almost daily, had their stone conveyed over said switch by means of locomotives and cars of the Louisville, New Albany and Chicago Railroad Company, and they claim the legal right, by reason of the facts aforesaid, to continue so to do, and the Hoosier Stone Company claims the right to sublease said right of way, and denies the right of the railroad to run over said switch, except as licensed so to do by said Hoosier Stone Company.

The appellees filed their complaint in this action, alleging the facts in detail, and describing the land, asking that the lessees of the stone company be perpetually enjoined from the further use of the switch and right of way, and for damages.

The appellants demurred to the complaint.The demurrer was overruled, and exceptions were reserved, and this ruling is the first error assigned and discussed.It is urged by counsel for the appellants that the complaint is not sufficient, for the reason that it does not allege that the appellees were the owners of the land at the time suit was commenced, but no authorities are cited in support of this contention.It alleges the ownership of the land at the time of the conveyance of the forty acres and the right of way to the appellant the Hoosier Stone Company, and the conveyance of the same to the company; that the same was granted for the purpose of permitting said company to convey the products of their stone quarry on said forty acres to the railroad, and for no other purpose; the subletting of the same to the other appellants, and denies the right of the company to sublease the same.We think the complaint sufficient to withstand a demurrer.

The next alleged error complained of is the sustaining of appellees' demurrer to the second paragraph of appellants' answer.The first paragraph is a general denial.The second paragraph alleges that the appellant the Hoosier Stone Company holds title to said way by warranty deed from the appellees and William E. Malott, and the use of the way by the other appellants is by its authority and by virtue of the stone company's right to the way.This presents the principal question in the case, as to what rights the stone company acquired by the conveyance of the way, and what it may be used for and by whom.The complaint sets out the conveyance,...