Monarch v. Owensboro City R. Co.

• Citation: 85 S.W. 193,119 Ky. 939
• Parties: MONARCH et al. v. OWENSBORO CITY R. CO.
• Decision Date: 24 February 1905
• Court: Court of Appeals of Kentucky

85 S.W. 193

119 Ky. 939

MONARCH et al. v. OWENSBORO CITY R. CO.

Court of Appeals of Kentucky.

February 24, 1905

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by R. Monarch and others against the Owensboro City Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Little & Slack, Eli H. Brown, and Wilfred Carrico, for appellants.

Sweeney Ellis & Sweeney and R. S. Todd, for appellee.

BARKER J.

The appellant R. Monarch owned a tract of land containing about 27 acres in Daviess county, Ky. within a short distance of the city of Owensboro. Conceiving that the connection of this tract of land with the city by a street car line would greatly enhance its value, he obtained a franchise from the municipality to operate a street car system over certain of its streets, presumably with the intention of extending it to his own property. Appellee also had a franchise to operate a street car system through the streets of the city of Owensboro. Appellant, deeming that appellee, in extending its system along Triplet street, was invading his exclusive right to operate a line of cars on that thoroughfare, instituted an action against it for an injunction, during the pendency of which the parties litigant entered into the following contract:

"This memorandum of agreement made and entered into this twelfth day of June, 1893, by and between R. Monarch of Owensboro Kentucky, of the first part, and the Owensboro City Railroad Company of Owensboro, Kentucky of the second part.

"Witnesseth: That the parties hereto have made the following contract:

"R. Monarch has granted and hereby agrees to convey by proper conveyance to be hereafter made by himself and wife to the said company a right of way ten feet wide from the Roost or Main street road, west of Owensboro near Paradise Garden and from a point on said road which lies between the land of Dr. G. B. Tyler and Dr. J. Hale, extending south the same width to Monarch's land as may be required for necessary siding and assigns, transfers and sets over to said company all rights of every description under an ordinance of the Owensboro city council passed and adopted on the -- day of 1892, giving him and such persons as he might associate with him the right to construct and operate a street car system in Owensboro on all the streets named in said ordinance and said Monarch agrees to transfer said grant and franchise to said company by any proper writing to be hereafter made and delivered and to ask the consent of the 0wensboro city council to such transfer and said Monarch further agrees to dismiss his suit now pending in the Daviess circuit court against said company.

"In consideration of the above, the city railroad company agrees to construct the extension of its railway from said point on said Roost road to the Lancaster road on Monarch's land and on the right of way described, thence up Fifth street to the terminus of the present street car line on said street, or as near said street as practicable, as soon as the right of way can be procured to the terminus of said Fifth street line.

"The said extension is to be completed as soon as practicable from this date and is to be operated during the period of said company's original franchise.

"The said company agrees to put in and maintain three cattle guards on the line from Main street to Monarch's land at points to be selected by said Monarch and said parties are to procure the right of way up said Lancaster road and Fifth street and if any expense is attached thereto it is to be borne jointly.

"In witness whereof the said parties hereunto have subscribed their names this the day and year first herein written. [Signed] R. Monarch, Owensboro City R. R. Co., By W. E. Whiteley, President."

After the execution of the foregoing contract, appellant dismissed his action, and sought to obtain a right of way over a county road leading from the city limits of Owensboro to a point near his land, which was essential to appellee's performing its contract of extending its line to his property. The right of way sought by appellant over this road was refused by the county authorities having the matter in charge, and it then became evident that an extended time would be required in which to secure the right of way necessary to enable appellee to perform its contract. With this fact confronting them, on the 18th day of September, 1893, the original agreement was modified by the parties as follows:

"In pursuance of the agreement of June 12, 1893, R. Monarch has this day made and delivered to the Owensboro City Railroad Company a written transfer of all rights and privileges acquired by him under the ordinance of the common council of the city of Owensboro enacted October 19, 1892, and requesting said council to approve said transfer and it is now agreed by said Monarch and said city railroad company that each is to have until the first day of May, 1894, in which to execute and complete the stipulations of their aforesaid agreement in regard to said city railroad.

"This the eighteenth day of September, 1893."

In 1896 appellant made a tender to appellee of what he seemed to consider a fulfillment of his agreement, and demanded performance of its covenants, which being refused, he instituted this action in equity, alleging the foregoing facts and the terms of the contract, and praying as a relief a judgment requiring appellee to specifically perform the terms of the contract, or, if that was deemed impracticable for a judgment against it in damages for the sum of $57,000. The manner of his performing the conditions precedent to his contract by appellant, his demand of performance from appellee, and its refusal, are thus set forth in the petition: "Plaintiff states that on the -- day of May, 1896, he tendered and offered to deliver to the defendant a properly executed conveyance to defendant by his wife and himself of the right of way over the land mentioned in said contract of June 12, 1893, to be conveyed by him to it. At the same time he tendered and offered to deliver to defendant certified copies of the ordinance of October 19, 1892, of the city council of Owensboro, and a certified copy of the ordinance of April 6, 1896, of the trustees of the town of Herrwood, granting rights of way in said city...