P. M. Bruner Granitoid Co. v. Glencoe Lime & Cement Co.

• Decision Date: 04 April 1916
• Docket Number: No. 14402.,14402.
• Citation: 187 S.W. 807
• Court: Missouri Court of Appeals
• Parties: P. M. BRUNER GRANITOID CO. v. GLENCOE LIME & CEMENT CO.

187 S.W. 807

P. M. BRUNER GRANITOID CO. v. GLENCOE LIME & CEMENT CO.

No. 14402.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Rehearing Denied July 14, 1916.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Suit by the P. M. Bruner Granitoid Company against the Glencoe Lime & Cement Company. From a decree for complainant, respondent appeals. Affirmed.

Douglas W. Robert and Wm. B. Homer, both of St. Louis, for appellant. Alexander Young and Percy Werner, both of St. Louis, for respondent.

ALLEN, J.

This is a suit in equity seeking to restrain defendant from using a common railroad switch, located partly upon plaintiff's property and partly upon that of the defendant, for purposes which it is alleged were not originally contemplated and which it is said constitutes an unwarranted interference with plaintiff's use and enjoyment thereof. This appeal is from a decree rendered for plaintiff upon the second trial of the cause in the circuit court. The first trial resulted in a judgment for defendant, dismissing plaintiff's bill; but the trial court set the judgment aside, on motion, and granted plaintiff a new trial. From the order granting a new trial defendant appealed to this court, where the action of the trial court in awarding the new trial was affirmed. See Bruner Granitoid Co. v. Glencoe Lime & Cement Co., 169 Mo. App. 295, 152 S. W. 601.

The Petition.

The petition avers that plaintiff corporation is engaged in the granitoid business in the city of St. Louis, and that the defendant corporation is engaged in the lime and cement business in said city; that it is necessary for both plaintiff and defendant to maintain yards and buildings, and that to conduct the business of each in an efficient and economical manner it is necessary that the premises of both plaintiff and defendant be accessible by railroad switches or connections in order to ship in and out material; that at the time of the institution of the suit the defendant owned and occupied lots 10 and 11 in city block No. 2211 of the city of St. Louis, and that plaintiff owned and occupied lots 8 and 9 in said block — said lots 9 and 10 being adjoining lots. And it is averred that, in the year 1889, one P. M. Bruner was engaged in the granitoid business in the city of St. Louis, and one Goetz was engaged in the lime and cement business in said city; that it was mutually agreed between Bruner and Goetz that they would secure adjoining property suitable for the conduct of their respective businesses, and with this end in view Goetz selected said lots, 8, 9, 10, and 11, in city block 2211, above mentioned, and, in 1889, with the consent and approval of Bruner purchased the same, the latter paying one-half of the total purchase price thereof, and it being orally agreed that Bruner should receive lots 10 and 11 and Goetz lots 8 and 9. And it is alleged that in January, 1889, after the purchase of the lots, Goetz and Bruner caused a railroad switch to be run into and built "as near as could be upon the line dividing lots 9 and 10, that is to say, about one-half of the said switch being on lot 9 and the other half on lot 10"; and that it was understood and agreed between Bruner and Goetz that the switch should be so built, and "that it should be used exclusively and equally for their business carried on upon said lots and no other"; and that the cost incident to the construction of the switch was borne equally by Bruner and Goetz.

It is then averred that Goetz permitted a stone company, in which he was interested, to use a portion of lots 10 and 11, upon which it erected derricks, machinery, and appliances; that thereafter, and after the full purchase price of the lots had been paid by Bruner and Goetz, to wit, in March, 1901, and because it was inconvenient to remove the stone company's property from lots 10 and 11, Goetz prevailed upon Bruner to accept a conveyance for lots 8 and 9 instead of lots 10 and 11, it being understood "that the said railroad switch as then located and built on and between lots 9 and 10 should be for the exclusive use and benefit of lots 8, 9, 10 and 11, and that the said lots 8 and 9 should have the same use and right to said switch as lots 10 and 11." And it is alleged that Goetz thereupon, by proper conveyances, conveyed lots 8 and 9 to Bruner for the expressed consideration of $4,500, being the amount which Bruner had theretofore contributed to the purchase of the four lots. It is further averred that Bruner, having received the conveyances for lots 8 and 9, located thereupon a plant for his granitoid business, and that at about the same time Goetz located upon lots 10 and 11 a plant for his lime and cement business; that, in accordance with the prior understanding between them, they jointly used the railroad switch for their respective businesses, "each being conceded as having equal rights in the use of said railroad switch"; and that they continued to so use their respective properties and said switch until the business of each was "put into corporations." And it is averred that on February 26, 1892, Bruner caused the plaintiff company to be incorporated, and thereupon transferred to it his granitoid plant and business, and on March 7, 1892, conveyed to it said lots 8 and 9 by warranty deed, with the rights, privileges, and immunities thereto belonging, "including the use, right, and privilege of said railroad switch"; and that since said time plaintiff corporation has been the owner of and in possession of said lots and plants and engaged in operating said granitoid business. And it is averred that Goetz conducted a lime and cement business on lots 10 and 11 until about the month of October, 1900, when he organized a corporation known as the Chas. W. Goetz Lime & Cement Company, of which he was chief stockholder, president, and manager, transferred said lime and cement plant business to it, and conveyed to it said lots 10 and 11; that the last-mentioned corporation continued to conduct such business on lots 10 and 11 until February, 1909, when (Goetz having in the meantime died in 1906) that corporation was "absorbed" by the defendant corporation, the Glencoe Lime & Cement Company, to which the plant and business was transferred, and to which lots 10 and 11 were conveyed. And it is averred that defendant "acquired said lots and plants, and took conveyances of the same with full knowledge of the rights of the plaintiff to the use of and rights in said switch." It is then further averred that since the defendant, Glencoe Lime & Cement Company, thus acquired the lime and cement properties, including lots 10 and 11, it has "impeded and interfered with plaintiff's use of the railroad switch aforesaid," and has used said switch for the use and benefit of property other and outside of that for which said switch was built and paid for by Bruner and Goetz and in violation of the understanding and agreement between them when the property was bought and the switch constructed; and that the defendant "further threatens to interfere with the use of said switch by this plaintiff so that its plant upon said lots 8 and 9 is and would be greatly damaged and plaintiff's business would be greatly interfered with and plaintiff's business would be irreparably injured and damaged, and in such manner as not to be adequately recompensed in damages." And it is alleged that plaintiff is without adequate remedy at law in the premises.

The prayer of the petition is that the court issue its writ of injunction restraining defendant from using the switch or any part thereof, "for the use of any other property than the said lots 9 and 10, and restraining it from interfering with the equal right of the plaintiff to use said switch," and that the writ "may be mandatory, commanding the defendant to grant to plaintiff the equal right with it in the use of said railroad switch," and for general relief.

The Answer.

The second amended answer, filed after the cause was remanded on the former appeal, contains first a general denial. Answering further, the defendant admits that plaintiff has the right to use the switch in question "jointly with the defendant," but denies that defendant has ever interfered with the use thereof by plaintiff or with any of the rights of plaintiff therein, jointly with defendant, and denies that it ever threatened to interfere with such use or rights, or that it intends so to do. Further answering, defendant avers that whatever use was made by it of said switch for the benefit of property other than that described in the petition was commenced in the year 1889; "that at said time, 1889, said switch was used adversely to plaintiff for the use and benefit of said other property, outside of the land described in the petition, and at all times to the present;" that from 1889 to the institution of this suit the defendant and its predecessors "claimed the right, and so asserted it, to use said switch for the purpose of switching cars to other property than that described in plaintiff's petition that plaintiff and its predecessors knew all the time of the use to which the defendant and its predecessors put said switch for said other land and the character of the use and the claim of defendant and its predecessors asserted to use it for such purposes." It is then averred that the use of the switch for such other land was adverse to plaintiff, and that defendant and its predecessors at all times claimed the right to so use the switch with plaintiff's knowledge, and that such use of the switch for said other property "was of necessity an additional burden upon it." It is further averred that this suit was instituted September 9, 1909, "more than 19 years after said adverse use was begun," and that plaintiff's cause of action, if any it had, accrued more than 15 years before the commencement of the action, and is barred by the statute of limitations, to wit, sections 1888 and ...