Louisville v. Bodenschatz-Bedford Stone Co.

• Decision Date: 05 February 1895
• Citation: 141 Ind. 251,39 N.E. 703
• Court: Indiana Supreme Court
• Parties: LOUISVILLE, N. A. & C. RY. CO. v. BODENSCHATZ-BEDFORD STONE CO.

141 Ind. 251

39 N.E. 703

LOUISVILLE, N. A. & C. RY. CO.

v.BODENSCHATZ-BEDFORD STONE CO.¹

Supreme Court of Indiana.

Feb. 5, 1895.

Appeal from circuit court, Monroe county; George W. Grubbs, Special Judge.

Action by the Louisville, New Albany & Chicago Railway Company against the Bodenschatz-Bedford Stone Company. From a judgment for defendant, plaintiff appeals. Affirmed.E. C. Field and W. S. Kinnan, for appellant. E. F. Runyan, M. F. Dunn, and Iglehart & Taylor, for appellee.

MONKS, J.

This was an action by the appellant to enforce specific performance of a written contract. So much of the contract as is material to this controversy is as follows: “This agreement, made and entered into this 10th day of March, 1890, by and between the Bodenschatz-Bedford Stone Company, incorporated under the laws of the state of Illinois, parties of the first part, and the Louisville, New Albany & Chicago Railway Company, parties of the second part, witnesseth that whereas, said first party is desirous of opening up a stone quarry near Bedford, Lawrence county, Indiana, removed from the main line of the railway track of the second party, and for this purpose is desirous of effecting connection between said quarry and said railway, by which stone can be carried by cars over and upon the line of railway of said second party, and said first party agrees to procure and have conveyed to said second party a right of way for railway purposes only from the point of connection with the right of way owned by said railway company to the said quarry, thereby vesting in said second party the perfect title to said right of way, which is agreed to be the following, to wit: All being shown on attached plat, which is marked ‘Exhibit B.’ Said first party further agrees to build said roadbed, and construct culverts and bridges, cattle guards, and also to do all necessary grading, both excavation and embankment, for the operation of said contemplated railroad, free of cost to said second party; and said first party further agrees to be and become liable for all damages to landowners through which said line of road is built, and for all damages that may in any manner arise from such construction, either to owners of the land through which said first party obtains right of way, or to any party, company, person, or persons who are damaged, or may hereafter sustain damages, on account of the construction of said switch or any part of said second party's right of way, except such only as may be incidental to the operation of the road by said second party, and results therefrom; and, in case any suit or suits are brought at any time for such damages as may result from such construction to any such landowners, company, or persons, that said first party will defray all expenses which said second party may incur or become liable for in their behalf. And said second party having heretofore submitted plans and specifications and plat of proposed road to Fred Hall, chief engineer of said second party, setting forth the line of contemplated road and manner of construction, which have been heretofore by him approved, copies thereof are hereto attached and made a part of this agreement, and said first party hereby agrees to construct said road in strict compliance therewith. Said specifications and plat marked Exhibits A and B. Said second party hereby agrees that after the delivery of the deed or deeds aforesaid for right of way, and the completion of the right of way, and the completion of the roadway and bridges, in compliance with the aforesaid plans and specifications, to furnish the ties, railroad rail, and do the labor completing said track, at the expense of said first party, for which rail, ties, and other track material and labor said first party hereby agrees to pay said second party in cash upon the completion thereof; and said second party agrees that said first party shall be reimbursed for the money so paid for labor, ties, rails, and other track material by thereafter receiving from said second party a rebate of one dollar ($1.00) per car on each and every loaded car passing into or out of said quarry, and which is shipped from or to any station except Bedford and the sawmills at that place. And the said second party agrees that, whenever the rebate shall amount to a sufficient sum to pay off the cost of said labor, rails, ties, and other track material, the rebate shall cease, and it will continue to furnish facilities for shipment of stone from said quarry. And said second party further agrees that in case other quarries are opened by other parties along the line thereof, or if the line shall be extended so as to embrace other quarries, before such party or parties shall be permitted to use such road or any part thereof, such party or parties shall pay to said second party such an amount, and in such terms, as compensation for money expended by said first party in the construction of said road, as said second party, by its general manager or general superintendent, may consider reasonable and just, on the basis that such acquired interest, if any, shall be proportioned to the cost of said railway grade so jointly used, and said second party, on receipt of any and all money derived from this source, shall pay the same over to said first party.”

The amended complaint is based on the above contract, and alleges, in substance: That after the date of said written agreement, and in express performance thereof, the defendant stone company procured from the landowners whose property lies between the point of connection of said proposed switch and the quarry of said stone company conveyances of the right of way for said proposed railroad. That the stone company then proceeded to grade, construct, and complete the roadbed for such proposed switch, upon the survey and plans of plaintiff's chief engineer. That afterwards, in June, 1890, said stone company notified the plaintiff that it had completed said roadbed ready for the superstructure, and requested the plaintiff to lay down the ties and rails on such graded roadbed, and complete said railroad from plaintiff's main-line grade to said stone company's quarry. That before the plaintiff laid down the ties or rails upon such grade the stone company exhibited to plaintiff a form of deed, purporting to convey said right of way with certain restrictions and covenants, which were contrary to said contract of March 10, 1890, to which restrictions and covenants the plaintiff objected, and refused to receive the same, as being contrary to said contract. That the stone company retained said conveyance, and agreed that the objection of the plaintiff thereto was a proper and valid objection, and that it would execute a new deed for such right of way, and would omit such objectionable restrictions and conditions. That, relying upon such promise, the plaintiff purchased, shipped, and laid down a large amount of the iron and track material, and entirely completed said switch railroad over the said right of way, making a continuous line of railroad from plaintiff's main track to said stone company's quarry. That the plaintiff expended a large sum of money for such ties, rails, and labor, to wit, the sum of $4,321.45, for which sum plaintiff rendered a statement to said stone company, which, however, did not include the cost of survey or transportation of said track material. That on the 18th day of November, 1890, the stone company paid in advance to plaintiff said sum. That afterwards the plaintiff notified said stone company that it was ready to switch cars into and from said quarry, but said defendant said it was not ready, and shortly thereafter, on December 10, 1890, erected obstructions across the said switch a short distance from its connection with the main line of the plaintiff's railroad, and also took out the track, and dug a ditch across the right of way, and carried off some of the rails in such switch, so as to disconnect the said switch from the said main track of plaintiff's railroad, and refused to allow the plaintiff to make any use of said track, and claimed that said switch belongs exclusively to said defendant as its own property, and that the plaintiff has no right or title to said switch, nor any right to operate the same, or to run its trains upon the same, except as said defendant may choose to permit. That the defendant refuses to perform its covenants in said agreement, or to procure and have conveyed to the plaintiff the right of way described therein, so as to vest a perfect title in the plaintiff, but claims the exclusive title thereof to be in the defendant, and that the plaintiff has no right, title, or interest therein, or any right whatever to operate the same. That the defendant, in disregard of the plaintiff's rights, has entered into an agreement with the Evansville & Richmond Railroad Company, which owns and operates a line of railroad running east and west, and crossing the line of the plaintiff's railroad in the city of Bedford, Ind., a short distance from defendant's quarry, and has bound itself in some manner to procure the right of way for and construct a line of railroad from the main tracks of the Evansville & Richmond Railroad to said switch, intersecting the same just outside the main right of way of plaintiff's railroad, and that the defendant has given the Evansville & Richmond Railroad Company the right to run its engines, cars, and trains over said switch to and from the defendant's quarry situated thereon. Plaintiff has in all things kept and performed covenants obligatory upon it under said contract of March 10, 1890, and prays that the court adjudge that the plaintiff is the exclusive owner, in fee simple, of said right of way, and that said defendant be ordered to specifically perform said contract, and execute, or cause to be executed and delivered, to the plaintiff proper deeds of conveyance, vesting in the plaintiff the perfect legal...