Ingle v. Bottoms

• Decision Date: 06 February 1903
• Parties: INGLE v. BOTTOMS.
• Court: Indiana Supreme Court

160 Ind. 73

66 N.E. 160

INGLE

v.BOTTOMS.

Supreme Court of Indiana.

Feb. 6, 1903.

Appeal from circuit court, Pike county; E. A. Ely, Judge.

Action by David Ingle against William H. Bottoms. Judgment for defendant. Plaintiff appealed to the appellate court, whence it is transferred under Burns' Rev. St. 1901, § 1337u (Acts 1901, p. 590). Reversed.Iglehart & Taylor, for appellant. Richardson & Taylor, for appellee.

MONKS, J.

Action by appellant against appellee. The complaint was in two paragraphs. The first was to enjoin appellee, lessor in a coal mining lease, from interfering with the construction of a railroad switch which appellant, as assignee of the lessee, in possession of the mine, was attempting or about to build upon the surface of the land near the pit head for the purpose of removing coal mined under the lease. The second paragraph was for injunction, the same as the first, and also for specific performance. Appellee demurred to each paragraph of the complaint for want of facts, which demurrer was sustained. Appellant refusing to plead further, judgment was rendered against him.

The errors assigned call in question the action of the court in sustaining the demurrer to each paragraph of the complaint. It is averred in the first paragraph of complaint that appellee, the lessor, owned 40 acres of land, describing it; the execution of the lease on the 24th of August, 1898, the lease being set out in hæc verba; that the lessee “entered upon said land under said lease, and constructed a mine thereon, and has since said time mined coal from said mine, and for the purpose of reaching said mine procured the Southern Railway to construct a switch from its main line to a point near said mine so as to connect said mine with a railroad switch, which is necessary for its proper operation”; that it has become necessary, in the operation of the mine by the appellant under the lease, to build the switch; that the route selected is upon the line of a water course which already cuts the defendant's land in two, and the building of the switch will do the appellee and his land the least possible damage; that appellee is objecting to the extension of the switch, and will, if not enjoined, interfere with and obstruct the building of it, and annoy and obstruct the men whom the plaintiff is about to put immediately upon the work; that the appellant cannot build the switch without great annoyance and hindrance and interference, and, unless appellee is enjoined from interfering with the building of the switch, appellant will be unable to build the same, to his great loss and damage and irreparable injury; that the appellant has performed all the terms and conditions imposed on the lessee in the lease. Prayer for temporary restraining order and perpetual injunction and all other proper relief. In the second paragraph, in addition to the facts set out in the first paragraph, it is averred that the Southern Railway Company has extended its switch upon appellant's land to a point accessible to the pit head of the mine on appellee's land; that the railroad switch is built upon appellant's land, appellant owning the land on the west and the north of the leased premises; that the pit head is connected by a switch with the railroad switch already mentioned; that it is impracticable for the appellant to build the switch extension upon his own land, for the reason that such a construction would involve a crossing of a water course, and a long and expensive bridge and trestle, at a cost wholly disproportionate to the value of the same, and so expensive as to be impracticable; that it has become necessary to extend the switch on appellee's land so as to make room for cars handled in the ordinary course of business in the operation of said mine under the lease; that the route selected, as aforesaid, will carry the proposed extension over the surface not to exceed three acres of appellee's land, the entire value of which does not exceed $25 per acre; and that the same will lie upon the bank of a water course, and does the least possible and very small damage to the appellee's land; that appellant is entitled to the possession of the land for the purpose of extending said switch by the express terms of the lease and by necessary implication, in the proper operation of said mine, such extension being necessary to such operation; that appellee unlawfully excludes appellant from such possession, and further threatens to prevent such extension, and will, if not enjoined, interfere; that, unless he is enjoined from preventing the building of the switch upon the land sought to be occupied, as aforesaid, appellant will be unable to build said extension, to his great loss and damage, and interference with and practically stopping the operation of the mine, the sale of coal, and employment of a large number of men, resulting in irreparable injury, for which appellant cannot have as adequate remedy at law as in equity; that appellant has title to the said surface for the purpose of extending said switch, as aforesaid, both by express grant and necessary implication from the lease; that appellee unlawfully excludes the appellant from the possession; that appellant, by his title through the assignment of said lease from Jackson, has entered into possession of the mine under the lease, and the appellant, as Jackson's successor under the lease, has been recognized by the appellee, who has dealt with appellant in and concerning the payment of royalty for the same from the appellant to the appellee, which has been done; that the lease has become thereby a binding contract between the parties thereto, fully performed by appellant, and that it ought to be enforced as to the appellee, including the portion authorizing appellant to use the said surface for the extension of the switch as aforesaid. Appellantalleged other facts, but, as they do not affect the sufficiency of the other allegations of said paragraph, it is unnecessary to set them out.

The part of the lease upon which appellant bases his right to recover under each paragraph, omitting the description of the real estate, is as follows: “The party [of the first part], for and in consideration of the covenant and agreement herewith on the part of the party of the second part, and one dollar paid to the party of the first part, the receipt whereof is hereby acknowledged, has granted and conveyed, and by these presents does grant and convey, to the party of the second part, his heirs and assigns, the right of entering in and upon the lands hereafter described for the purpose of mining coal and of conducting and operating to any extent he may deem advisable, but not to hold possession of said land for any other purposes, except one (1) acre, more or less, necessary for operating said mines and for dwellings. The said lands are situated in Pike county, in the state of Indiana, and described as follows, to wit [describing them], for the term of twenty-five (25) years, or as much longer as the party of the second part may deem advisable and for which the party of the second part hereby agrees and proposes to pay or cause to be paid to said party of the first part the following rents, to wit,...