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

• Decision Date: 23 November 1916
• Docket Number: No. 23184.,23184.
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BARTH.

185 Ind. 593

114 N.E. 81

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

v.BARTH.

No. 23184.

Supreme Court of Indiana.

Nov. 23, 1916.

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

Action by Elizabeth Barth against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Case transferred from the Appellate Court under section 1394, Burns' Ann. St. 1914 (110 N. E. 574). Affirmed.

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

SPENCER, J.

For a statement of the facts and circumstances leading up to the institution of this action reference is here made to the opinion of this court in Barth v. Pittsburgh, etc., R. Co., 175 Ind. 554, 93 N. E. 535. Subsequent to the decision in that case appellee instituted this proceeding to recover possession of certain lands over which appellant was maintaining switch tracks, and took the position that the instrument under which the railroad company operated such tracks is a lease creating a tendency at will, and therefore terminable on the giving of one month's notice to quit. That instrument contains the following provisions:

“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; *** 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 the 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 the 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 the use of the August Barth Leather Company, its successors and assigns. And after the removal of the same, as above provided, all rights, 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.”

The trial court construed the above instrument to be a lease creating a tenancy at will, and to sustain that construction appellee here relies on the decision of this court in Knight v. Indiana, etc., Co., 47 Ind. 105, 107 Am. St. Rep. 692. The instrument there under consideration purported to convey to a predecessor of the coal company, and to his assigns, all of the mineral coal, limestone, iron ore, etc., on a certain tract of...