Louisville & N.R. Co. v. Dry Branch Coal Co.

• Decision Date: 28 November 1933
• Citation: 65 S.W.2d 1008,252 Ky. 124
• Parties: LOUISVILLE & N. R. CO. v. DRY BRANCH COAL CO.
• Court: Kentucky Court of Appeals

65 S.W.2d 1008

252 Ky. 124

LOUISVILLE & N. R. CO. v. DRY BRANCH COAL CO.

Court of Appeals of Kentucky

November 28, 1933

Rehearing Denied Jan. 16, 1934.

Appeal from Circuit Court, Bell County.

Action by the Dry Branch Coal Company against the Louisville &amp Nashville Railroad Company, wherein defendant answered in nature of set-off or counterclaim. Judgment for plaintiff and from the judgment sustaining demurrer to defendant's set-off or counterclaim, defendant appeals.

Affirmed.

Ashby M. Warren, of Louisville, and Low & Bryant, of Pineville, for appellant.

Tuggle & Tuggle, of Barbourville, for appellee.

RICHARDSON Justice.

In June, 1918, the Louisville & Nashville Railroad Company and the Dry Branch Coal Company, a corporation, entered into an agreement, by which the Dry Branch Coal Company agreed to pay to the Louisville & Nashville Railroad Company, according to accounts kept by it, cash for materials and skilled labor, to lay certain railroad tracks. The contract set out in detail the method of laying the tracks, their location, and the stipulations of the parties respecting the same.

In July, 1918, the Dry Branch Coal Company and the Asher Coal Mining Company, a corporation, were the owners of adjoining lands on Dry Branch in Bell county, and contemplated installing plants on their respective land for the purpose of mining coal thereon. The Dry Branch Coal Company at that time had located a line of railroad, a spur track, to the main line of the Kentucky and Virginia division of the Louisville & Nashville Railroad Company, on the left-hand side, going up Dry Branch, extending through the lands of both parties.

The Louisville & Nashville Railroad Company at that time had granted to the Dry Branch Coal Company the right to connect its spur track with its main line. The Dry Branch Coal Company by its contract with the Asher Coal Mining Company conveyed to it so much of its right of way as was located through the land of the Dry Branch Coal Company for the construction of a spur track up Dry Branch, 50 feet on each side of the center line of the right of way. It also agreed to convey land on the right-hand side of the right of way going up the branch, owned by it on that side of the right of way, in exchange for an equal number of acres owned by the Asher Coal Mining Company, on the left-hand side of the branch, going up, and parallel with, and adjoining, the upper line of the Dry Branch Coal Company for a distance of about 150 feet to the top of the mountain. It transferred the rails, splices, spike frogs, and equipment it had purchased for the purpose of using in the construction of the spur track, except "sufficient to set rails, splices, spike frogs and other equipment to construct the spur or switch near the proposed tipple" of the Dry Branch Coal Company, "of sufficient capacity to haul and handle three coal cars a day." The rails, splices, spike frogs and other equipment necessary for the purpose of constructing this switch were expressly reserved in the contract, and it was provided that the switch was to be constructed and maintained solely at the expense of the Dry Branch Coal Company. The Asher Coal Mining Company agreed to construct the spur and have it ready in six months. All the rights of the Dry Branch Coal Company acquired by it under its contract with the Louisville & Nashville Railroad Company were transferred or assigned to the Asher Coal Mining Company, except as expressly reserved in the contract. The Dry Branch Coal Company and the Asher Coal Mining Company each agreed to pay one-half the cost of maintenance and other expenses in connection with the spur from the switch of the Dry Branch Coal Mining Company to the connection of the Louisville & Nashville Railroad Company, in proportion to the tonnage each party carried over the spur, reserving equal rights in its use. The expense of maintenance and other expenses of the spur above the switch were to be borne exclusively by the Asher Coal Mining Company, which it was to construct at its own expense. The contract carried other provisions not herein involved.

In May, 1920, the Louisville & Nashville Railroad Company and the Asher Coal Mining Company entered into a written contract. The Louisville & Nashville Railroad Company agreed to furnish the rails and track material, exclusive of ties, complete the construction and system of mine tracks, diverging from its main track on its Cumberland Valley division, on the east side thereof, 2,963.3 feet north of mile post, 219, going from Louisville, and running in a southeasterly direction, according to a sketch agreed upon by the parties; the Asher Coal Mining Company doing the grading, furnishing the switch ties, and paying the actual cost of labor of laying the tracks, and "the cost of all other material," except the rails and splices. The Asher Coal Mining Company agreed to pay the Louisville & Nashville Railroad Company as rent 6 per cent. per annum payable semiannually, from the date of the completion of the tracks, of the value of the rails and splices used in the construction. It, by a provision of the contract, conveyed to the Louisville & Nashville Railroad Company a right of way 15 feet in width on each side of the center line "of each and every track constructed," the full length thereof, except such portions of the tracks that may be located on the land of the Louisville & Nashville Railroad Company, the right granted to revert to the Asher Coal Mining Company when the tracks should thereafter be removed. The rails, splices, and control of same were reserved to the Louisville & Nashville Railroad Company, the Asher Coal Mining Company maintaining and keeping the same in good condition at its own expense. It was further stipulated in the contract that the entire cost of all switches, and ties required by the contract, including those used in making connection with the tracks of the main line of the Louisville & Nashville Railroad Company and all cost of repairs and renewal of the switch ties, were to be paid by the Asher Coal Mining Company. The cost of protecting or controlling trains, all automatic or other signals, the changes and additions thereto, were to be paid for by the Asher Coal Mining Company, as the cost of constructing the tracks. It was agreed that, "upon the termination of this contract for any reason," the Asher Coal Mining Company was to pay the Louisville & Nashville Railroad Company the actual cost of removing the tracks according to its accounts. The contract stipulated that the Asher Coal Mining Company should not have the right to transfer the contract without the written consent of the Louisville & Nashville Railroad Company.

The Asher Coal Mining Company, the See See Coal Mining Company and the Louisville & Nashville Railroad Company, on May 5, 1920, entered into a contract in which it was recited that the Louisville & Nashville Railroad Company had constructed a system of mine tracks about 4,885 feet in length at Kerrick for the Asher Coal Mining Company, and that, "for value received," the Asher Coal Mining Company assigned to the See See Coal Mining Company "all of its rights, title and interest," which it had by virtue of, and under, the contract dated May 5, 1920, between the Asher Coal Mining Company and the Louisville & Nashville Railroad Company. The See See Coal Mining Company agreed to accept the contract between the Asher Coal Mining Company and the Louisville & Nashville Railroad...