Mann v. Pere Marquette R. Co.

• Decision Date: 22 December 1903
• Citation: 135 Mich. 210,97 N.W. 721
• Court: Michigan Supreme Court
• Parties: MANN et al. v. PERE MARQUETTE R. CO.

97 N.W. 721

135 Mich. 210

MANN et al. v. PERE MARQUETTE R. CO.

Supreme Court of Michigan

December 22, 1903

Error to Circuit Court, Muskegon County; Fred J. Russell, Judge.

Action by Robert K. Mann and William S. Watson against the Pere Marquette Railroad Company. There was judgment for plaintiffs, and defendant brings error. Reversed.

Plaintiff are lumbermen, and own a large mill plant near Muskegon. Desiring to have a side track on each side of their mill for the purpose of shipping in and shipping out products, they applied to the defendant to put in such tracks. Thereupon the following contract was executed by them:

'Agreement made this ninth day of November, A. D. 1901, between R. K Mann and W. S. Watson, both of Muskegon, Michigan, and doing business under the name of Mann, Watson & Company hereinafter for convenience called the first party, and the Pere Marquette Railroad Company, hereinafter called the second party.

'The first party hereby requests the second party to construct two side tracks to be located at Muskegon, Muskegon county, Michigan; No. 1, connecting with the South Horn track, about 200 feet east of Location Stake 45, and extending westerly about 580 feet, No. 2 connecting with the Brewery siding, about 300 feet west of Location Stake 30, extending easterly 300 feet, for the convenience of the first party in receiving and shipping freight. In consideration of the representations, promises and undertakings of the first party, and upon the conditions and with the reservations hereinafter stated, the second party hereby agrees to comply with such request as soon as practicable after the execution of this agreement.

'Wherefore, this writing witnesseth:

'(1) Said side tracks shall be constructed, substantially according to the plan hereto attached, six hundred and eighty feet, or thereabouts, thereof being upon land owned or controlled by the first party, and two hundred feet, or thereabouts, upon land owned or controlled by the second party. The first party hereby represents that they have lawful authority to permit the second party to construct and use said side track according to said plan and the terms of this agreement, beyond the line indicated on said plan as the limit to the second party's premises; and the first party hereby grants to the second party the right to construct and use said side tracks in accordance with the terms hereof, and hereby agrees to indemnify and save the second party harmless of and from all damages, costs, and expenses that may be suffered or incurred by it on account of any claim of trespass or other claim by any third party or parties, arising from the construction or use of said side track.

'(2) The material for the construction of said side track shall be furnished as follows, by the second party: The said side tracks, including ties, rails, switches and crossing material, if any, shall be and remain the property of the second party and under its exclusive control, except as herein otherwise stated. And the second party shall have the right to use the whole or any part of said tracks for other business than that of the first party, when it will not interfere with the first party's business, without any allowance therefor to the first party, and without restriction except as herein stated.

'(3) The principal inducement for the construction of said side tracks by the second party, is to secure as much as possible of the freight to be shipped to or from the first party in connection with the business carried on by the first party, along or near said proposed side tracks, and in consideration of the agreements of the second party herein contained, the first party hereby agrees that from the date hereof, all freight shipped by the first party in connection with said business (and all freight shipped to them so far as they control the shipment thereof) shall be shipped over the railroad of the second party, whenever it, either alone or in connection with other lines, shall be willing to carry the same at rates equally favorable with those actually offered by another carrier. And the first party shall at all times during the continuance of this agreement, give the second party opportunity to meet the rates of a competitor before shipping any such freight by another carrier. The first party further agrees that all freight, the destination or place of shipment of which shall be off the lines operated by the second party, shall, so far as the first party may be able to control the same, be so routed as to give the second party the benefit of the longest possible haul over lines owned or operated by the second party. It is agreed that if at any time the first party shall fail to observe the true intent an meaning of this paragraph, the second party shall have the right, after fifteen days' notice to the first party, to terminate this agreement, and to enter upon the lands referred to and remove said side track and all its connections.

'(4) The first party recognizes that the use of said side track involves risk of loss by fire originating from the second party's engines. As a further inducement and consideration for the construction of said side track, the first party hereby assumes all such risk of fire, and releases the second party from all liability, statutory or otherwise, for any loss or injury by fire sustained in respect to buildings owned by the first party, or personal property belonging to or in charge of the first party, now situated or hereafter placed in the vicinity of said side track, whether such loss or injury be due to negligence of the second party or its employ�s, or to other causes; and the first party further agrees to keep the grounds adjacent to said side track, on each side, reasonably free and clear of inflammable and combustible material, so as to prevent the starting by fire by means thereof to the property of the second party, and others, as well as to the property of the first party; and the first party hereby assumes all duty concerning the condition of said grounds, and releases the second party from all liability, statutory or otherwise, on account of fires that may be due, in whole or in part, to the condition of said grounds. The first party further agrees that before or at the time of procuring fire insurance on any of their buildings or personal property, now or hereafter situated in the vicinity of said side track, they will distinctly give notice to each and every insurance company about to issue a policy to the first party on such buildings or personal property, of the substance and purport of this agreement, so that each interested insurance company shall know that it will acquire no right by subrogation, or otherwise, to recover of the second party for any loss by fire; and the first party agrees to indemnify the second party from all damage, costs and expenses on account of claims that may be made against the second party by any insurance company on account of the burning of any buildings or personal property located in the vicinity of said side track.

'(5) The first party agrees that they will not erect, or permit to be erected, any structure, temporary or otherwise, over or above said track, at a lower level than twenty-two feet above the track rails, nor nearer to the sides of the rails than six feet, without first obtaining the written consent of the second party; and as a further inducement and consideration for the construction of said tracks, the first party assumes all risk of injury to any building or structure and the contents thereof now or hereafter situated in the vicinity of said side tracks, caused by an engine or car coming in contact with said building or structure, whether due to negligence of the second party's employ�s, or to other causes; and the second party is hereby released from all liability therefor.

'(6) Said side tracks shall be maintained by the second party, and the cost of such maintenance shall be borne by the second party.

'(7) In case the first party shall fail in the performance of any of the agreements on their part herein contained, the second party shall have the right, at once and without notice, to terminate this agreement; and it may at its option, after sixty days notice in writing to the first party, elect to terminate this agreement. In either case it shall have the right to enter upon the property of the first party and remove said track and connections; but the second party, its successors and assigns, shall have the right to maintain and use said track pursuant to this agreement, so long as the business reached thereby shall be conducted in the vicinity thereof; and the first party shall not grant or attempt to grant to any party any right to use the same at any time.

'(8) The successors and assigns of the second party shall succeed to all the rights and privileges accorded by this agreement to the second party, and shall be entitled to enforce the agreements of the first party herein contained; and any assignment by the first party of his rights under this agreement shall be subject to the written consent of the general manager of the second party and be void unless given with such consent.'

The location of the mill, tracks, etc., will better appear from the following sketch:

RPT.CC.1903001067.00010

(Image Omitted)

The side track west of the mill, constructed under the above contract, commenced at the South Horn track, at point A, and terminated at point B, and is called B21. The east side track commenced at 'Sta. 33,' and terminated at point C and is called B18. The place marked with a star is where the fire originated. The places marked X indicate the location of the lumber piles which were burned. The east siding can only be used by running cars...