Riverside Coal Company v. North Indianapolis Cradle Works
| Decision Date | 29 May 1923 |
| Docket Number | 24,354 |
| Citation | 139 N.E. 674,194 Ind. 176 |
| Parties | Riverside Coal Company et al. v. North Indianapolis Cradle Works |
| Court | Indiana Supreme Court |
Rehearing Denied January 30, 1924, Reported at: 194 Ind. 176 at 185.
From Marion Superior Court (A1209); W. W. Thornton, Judge.
Action by the North Indianapolis Cradle Works against the Riverside Coal Company and others. From a judgment for plaintiff, the defendants appeal. (Transferred from Appellate Court under subdivision 2, § 1394 Burns 1914.)
Affirmed.
Robbins Weyl & Jewett, for appellants.
Charles A. Dryer, for appellee.
Appellee sued to recover possession of certain real estate, with damages for alleged unlawful holding over after the termination of a lease, and recovered a judgment for possession with $ 1,379.07 as damages, and costs. The only error assigned is overruling the motion for a new trial, the specifications being that: (a) the finding is not sustained by the evidence; (b) and is contrary to law; (c) that the damages are excessive; (d) that the trial court erred in admitting certain evidence; and (e) in rejecting certain other evidence.
The paragraph of complaint alleging the execution of a written lease, which is the only one sustained by any evidence alleges that the plaintiff, by an instrument of writing, leased to certain of the defendants (appellants) then doing business under the name of Riverside Coal Company, for the term of three years from July 1, 1911, certain real estate in the city of Indianapolis, Marion County, Indiana, by the following description: "The parcel of land covered by this agreement is of the north portion of certain lots adjacent to what is known as the Big Four Switch, lying directly north of the warehouse of said first party (lessor) and extending east to a board fence on a line with the east end of said warehouse, the north boundary being the south line of the alley running east and west between Twenty-ninth and Eugene Streets"; that the lease (as set out) recited that the lessor and lessee were both "corporations under the laws of the State of Indiana, located in the City of Indianapolis, Marion County, Indiana", and that the leased premises should be used only for unloading and storing coal, but prohibited piling any coal against the lessor's warehouse; that it also provided that the lessees would vacate the leased premises on thirty days notice to quit, at any time the lessor should wish to take possession thereof for use in connection with its own business; that the lessees occupied said premises (fully and correctly described in the complaint) until in June, 1913, when they perfected the organization of the Riverside Coal Company as a corporation, with the former partners as the incorporators, and assigned to it all the business and assets of the partnership in consideration of the assumption by it of all the partnership liabilities; that the corporation thereupon, with full knowledge of the terms and conditions of the tenancy, took and held possession of the leased premises, and thereafter paid rent at the rate stipulated in the lease until July 1, 1915 (which was one year after the three year term expired); that on July 12, 1916, plaintiff notified the defendant corporation in writing that plaintiff wished to take possession not later than August 11, 1916, of the leased premises, for use in connection with its own business, and that said defendants should vacate the same; that defendants failed and refused to vacate a strip about fifteen feet wide of the leased premises, at the west end, next to the railroad, but wrongfully held over and still holds possession of that strip, which is alleged to lie between the railroad switch and the remainder of plaintiffs' said land so leased to defendants; that thereby defendants have rendered all the remainder of plaintiff's lands covered by the lease of no rental value; that except for such acts said lands would be of the rental value of $ 600 per year; that rents of $ 350 are due and unpaid, and by reason of said wrongful acts of defendants plaintiff has been damaged $ 1,500.
Each defendants (appellant) answered by a denial. The trial court found for the plaintiff as against the defendants, that plaintiff was "entitled to the possession of the property described in its complaint, and * * * $ 1,379.07, as its damage, together with its costs", and rendered judgment accordingly. Appellants complain of the alleged insufficiency of the evidence to prove that the strip of ground next to the railroad switch, which the coal company continued to use after being served with a notice to vacate the leased premises, was covered by the lease. The president and principal stockholder of the Riverside Coal Company being one of the original lessees, and a defendant in this action, testified that he had lived in that neighborhood since 1877, and that there had been no fence along the east side of the railroad switch "since 1902", but said there had once been a fence running northwest from the warehouse. The vice-president of the plaintiff company, who was also its treasurer and general manager, testified that he had been "on the ground" at its plant since 1878 and became manager in 1911, when his father died, and there had "always" been a board fence along the north side of the leased tract, next to the alley, until after the lease was made, in 1911, and that defendants then took it down; that there was and is a fence at the east boundary of the leased tract; that after his company acquired the ground, it put a fence at the west end, parallel with the railroad switch, and about three and a half feet from the east rail, which was repaired many times and stood there a good many years until it rotted down; he did not know how long ago, but possibly in 1902 or along there; that a fence ran west from the northwest corner of the warehouse, a distance of about twenty-five feet, to within two or three feet of the switch track, and connected with the fence which ran northwest parallel with the track; that plaintiff used the ground up to within three and a half feet of the rails of the railroad switch. The superintendent of plaintiff company testified that he had held that position for thirty years, and...
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