Pittsburgh, C., C. & St. L. Ry. Co. v. Barth

• Citation: 110 N.E. 574
• Decision Date: 07 December 1915
• Docket Number: No. 9130.,9130.
• Court: Court of Appeals of Indiana
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BARTH.

110 N.E. 574

PITTSBURGH, C., C. & ST. L. RY. CO.

v.BARTH.

No. 9130.

Appellate Court of Indiana, Division No. 2.

Dec. 7, 1915.

Appeal from Circuit Court, Washington County; William H. Paynter, Judge.

Action by Elizabeth Barth against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

M. Z. Stannard, of Jeffersonville, for appellant. W. W. Hottel, of Salem, John D. Welman, of Evansville, and Charles L. Jewett, of New Albany, for appellee.

IBACH, C. J.

Many of the facts associated with the case and the particular writing here involved were before the Supreme Court in the case of Barth v. Pittsburg, etc., R. Co., 175 Ind. 554, 93 N. E. 535, and, since the statement of facts contained in that case embodies all the essential facts involved here, a reiteration now would be fruitless.

The important question before us turns upon the construction to be placed on one of the paper writings considered in that case, which is in the following words (omitting the caption, in which it is termed a release deed):

“Know all men by these presents, whereas, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company has entered into certain agreements with the August Barth Leather Company and the New Albany Manufacturing Company for the construction and operation of certain side tracks Nos. 6 and 23, No. 6 being described as follows: *** And whereas, the route of said proposed side track No. 6 passes over certain land owned by Elizabeth Barth (widow of August Barth) in said city of New Albany, county of Floyd, state of Indiana, described as follows: *** The route of said track being shown on plan attached hereto, marked ‘Exhibit A’ and made part of this conveyance.

That I, Elizabeth Barth, widow of August Barth, for and in consideration of the sum of $1 and the fulfillment of aforesaid agreement, received to my full satisfaction, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, the right to enter upon said premises and to construct, maintain and operate thereon said side track, provided said side track shall not be used for the storage of cars and no cars shall be allowed to remain thereon longer than is necessary for loading and switching purposes, where the same now is or may be surveyed and located. The width of land to be occupied for this purpose, however, not to exceed fourteen (14) feet; also the right to cut and remove for my use, however, such trees as may be liable to fall upon said track; and also the right to said company at any time it may see fit to do so, without further compensation to me to take up and remove so much material as may belong to it, used in the construction and maintenance of said side track.

To have and to hold the above described rights and privileges unto the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, its successors and assigns, for so long a time only as such company, its successors and assigns, shall elect to continue the existence and use of said side track No. 6 for so long a time only as said company shall maintain said side track No. 23 for the use of the August Barth Leather Company, its successors and assigns. And after the removal of the same, as above provided, all right, title and interest of the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company in and to the above described premises shall cease and determine absolutely.

Witness my hand and seal this 2d day of September, 1903.

FElizabeth Barth. [Seal.]”

This instrument was acknowledged the same day of its execution.

The suit is to recover possession of the lands described in the foregoing instrument. Appellee recovered judgment below awarding her the possession of the real estate demanded, and $337.50 for the detention thereof.

Overruling the joint and several demurrer addressed to the different paragraphs of complaint and the motion for a new trial are the errors assigned for a reversal.

[1] It was contended by appellee in the circuit court, and she contends here, that the foregoing instrument which forms the basis of the suit is a lease creating a tenancy at will, terminable by a one month's notice to quit, while appellant in insisting that such writing constitutes an executed license granted on a valuable consideration, and under it the licensee acquired such rights as could not be terminated by the giving of a one month's notice to quit.

In the consideration of the case above referred to our Supreme Court, on page 562 of 175 Ind., at page 538 of 93 N. E., said:

“Whether the agreement be regarded as a tenancy at will, or as a license coupled with an interest, the agreement not to use the tracks for the storage of cars, and the agreement that tracks should not extend beyond the lands of Elizabeth Barth, except track No. 6 to the New Albany Manufacturing Company, are clearly conditions subsequent. They are not made grounds for revoking the agreement.”

[2][3] The decision of that case leaves for our consideration on this appeal but one question, the...