L.A. Thompson Scenic Ry. Co. v. Young
| Decision Date | 09 December 1899 |
| Citation | 44 A. 1024,90 Md. 278 |
| Parties | L. A. THOMPSON SCENIC RY. CO. v. YOUNG. |
| Court | Maryland Court of Appeals |
Appeals from circuit court, Baltimore county, in equity; N. Charles Burke, Judge.
Suit by the L. A. Thompson Scenic Railway Company against Adolph Kuehn, John Young intervener. From a decree for intervener plaintiff appeals. Reversed.
Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, and SCHMUCKER, JJ.
C. D McFarland and Peter J. Campbell, for appellant. John M Carter, for appellee.
The appellee leased a tract of vacant land on Middle river, near Baltimore city, to one Adolph Kuehn, for a renewable term of 10 years. It was the intention of the lessee to establish a summer resort upon the demised land, and equip it with buildings and appliances suitable for that purpose; but the lease contained no covenant or undertaking on his part to do so, although a provision in its last paragraph permitted him at his option, to enter upon the land before the commencement of the term, to erect any buildings and clear up the ground. The lessee, with a view to equipping the demised premises with the requisite appliances for the conduct of his proposed summer resort, entered into a written contract with the appellant for the construction by the latter, at a cost of $18,000, of what is known as a "scenic railway," and is used for the amusement of visitors at popular resorts. The structure described in this contract was a composite plant, consisting of an undulating elevated circular railway with a pavilion for a station from which the cars were to start, and to which they were to return; also a number of cars, and a stationary engine, with shafting, band wheels, belting, etc., by which the road was to be operated. The foundation under the pavilion was to be brick piers, and the entire apparatus, in view of the uses for which it was intended, was to be constructed in a firm and substantial manner. The contract also provided that the appellant should "retain possession and ownership of the railway plant," with the right to operate it, until it was paid for, when it was to be delivered to Kuehn, the lessee of the land on which it was to be erected. The appellant proceeded with the construction of the scenic railway, including the pavilion and tracks, until it had expended about $8,000 thereon, when it became apparent that Kuehn would fail in the attempt to establish his proposed summer resort. The appellant thereupon filed in the circuit court for Baltimore county a bill in equity against Kuehn, alleging that it had entered into the contract for the erection of the scenic railway upon the representation made to it by him that he would also erect on the demised land a casino, a hotel, a dancing pavilion, a bowling alley, and billiard rooms, and that he was in a financial condition to do so. The bill further alleged that, after commencing the erection of said buildings, he had failed to continue the work, and for a month then last past had almost entirely ceased work thereon, and was financially unable to proceed with their erection. It also averred that scenic railways could only be operated profitably where large crowds of persons were collected, and that the $8,000 which it had already expended, and also the sums which it was then currently expending, under its contract with Kuehn, would be lost unless said buildings were completed. It prayed for a receiver to take charge of the property, and for an account of the moneys expended thereon by the appellant, and the repayment thereof, and for an injunction against the defendant. On this bill a preliminary injunction was granted, as prayed, on May 11, 1899, and a receiver was appointed, who duly qualified, and on May 20th the defendant answered the bill. On June 17th the appellant filed a petition in the case, repeating the substantial allegations of the bill, and further alleging that there was no prospect that the proposed summer resort would ever be opened, and asking leave to remove its scenic railway, which it asserted remained its property under its contract with the defendant. The receiver answered the petition, admitting the facts, and consenting that its prayer be granted, which was done by the court on the same day. On July 3, 1899, the appellee, Young, who is landlord of the demised premises, filed a petition in the case then pending in equity between the appellant and Kuehn, in which he alleged the making of the lease, and that thereafter Kuehn had commenced to build the pavilion and scenic railway for the pleasure of visitors to the grounds, and that the said structures, especially the pavilion, constituted substantial and valuable permanent improvements, but that the appellant, professing to act under the order of the court of June 17th, was rapidly tearing down and removing them from the grounds. The petition then prayed for an injunction to prevent the further removal of the buildings,...
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