Rutherford v. Wabash R. Co.

• Decision Date: 23 December 1898
• Citation: 147 Mo. 441,48 S.W. 921
• Parties: RUTHERFORD v. WABASH R. CO.
• Court: Missouri Supreme Court

48 S.W. 921

147 Mo. 441

RUTHERFORD v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

LEASE — COVENANT AS TO FIRE — APPURTENANCES.

Where the group of buildings on one's land, constituting his coal-mining plant, is extended on the right of way of a railroad company over its side track to its main track, by means of chutes and a shed over them located on the right of way, the mining plant on such person's land is not within the covenant of the lease by the railroad to him of such part of the right of way that he should hold it harmless from damage from fire to "any building or buildings on the land herein leased, or their appurtenances or contents," it not being an appurtenance of the buildings on the right of way, and the fact that the word "appurtenance" was not intended to have this meaning being shown by the provision of the lease that, if the lessee default, the lessor might declare the lease at an end, and enter on "said premises with the mine and building and appurtenances thereon, * * * and occupy and possess said premises, and hold and occupy the mine and buildings and appurtenances."

Appeal from circuit court, Randolph county; John A. Hockaday, Judge.

Action by W. T. Rutherford against the Wabash Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. S. Grover, for appellant. A. H. Waller and Will A. Rothwell, for respondent.

BRACE, P. J.

This is an action for damages to plaintiff's property by fire, caused by one of defendant's engines. The defense was that plaintiff, by contract, assumed the risk of damage by fire to his premises. The case was tried and adjudged below on the contract and an agreed statement of facts. The judgment was for the plaintiff for $3,000, and the defendant appealed. The agreed statement of facts is as follows:

"The parties, plaintiff and defendant, by their respective attorneys, for the purpose of this trial, and for use in this case at any time, agreed upon and admitted the following statement of facts: That the said Wabash Railroad Company, as party of the first, and the said W. T. Rutherford, as party of the second, part, on the 13th day of February, 1893, entered into a certain agreement of lease, as alleged in defendant's answer, which said agreement was in words and figures as follows, to wit: `This agreement, made and entered into this 13th day of February, A. D. 1893, by and between the Wabash Railroad Co., party of the first part, and W. T. Rutherford, of Huntsville, in the county of Randolph, and state of Missouri, party of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of five dollars per annum in advance to said party of the first part paid by said second party, and upon the express condition and stipulation that said second party shall assume all risk of fire from every cause, and shall hold and keep harmless said first party from any and all damages whatsoever, from fire or any other cause, to any building or buildings that may be erected on the land herein leased, or their appurtenances or contents, which guaranty enters into and forms part of the consideration that induces said first party to make this lease, and for the further covenants and agreements hereinafter contained on the part of the second party to be kept and performed, hereby grants unto the said second party the right to occupy and use for the purposes of mine and buildings near the following described part of the grounds of the said party of the first part, at Huntsville, county of Randolph, and state of Missouri, to wit: Beginning at a point on the west end of the coal chute four and one-half (4½) feet north of the north rail of the Wabash main track; thence eastward parallel to the main track fifty-five (55) feet to the east end of the coal chute; thence northward along the east end of the chute two and one-half (2½) feet; thence eastward parallel to the main track, and seven (7) feet north of the north rail of the same, eighty (80) feet; thence northward at right angles to last course forty and one-half (40½) feet to the north line of the right of way; thence westward along the right of way line two hundred and twenty-six (226) feet; thence southward at right angles forty and one-half (40½) feet to a point seven (7) feet north of the north rail of main track; thence eastward parallel to the main track ninety-one (91) feet to the west end of the coal chute; thence southward two and one-half (2½) feet to the point of beginning. And said first party further covenants to and with said second party that said second party shall have the right to occupy and use such portions of land, selected and designated as aforesaid, for the location of said mine and buildings for and during the full term of two (2) years from the date of this agreement, unless the occupancy of said premises shall be sooner terminated in the manner hereinafter provided. And the said second party covenants and agrees with the said party of the first part to pay all taxes that may be assessed on said mine and buildings and the herein leased premises, and to conduct the business of storing and forwarding coal or other property, according to such rules as the party of the first part may prescribe in relation to such business at its stations generally. And the said second party hereby further agrees for himself, his heirs or assigns, that they hereby assume all risk of fire from any cause whatsoever; that, if any insurance is effected during the continuance of this lease, or any renewal thereof, by said second party, or any party interested therein, on said mine and buildings or the contents thereof, that said second party will, before such insurance is effected, exhibit this lease to the agent or agents, officer or officers, of the insurance company or companies through whom said mine and buildings are to be insured, and precure the indorsement hereon of said agent or agents, officer or officers, and also upon the policies of insurance issued by them, or any renewal thereof, to the effect that said insurance company will not, under any circumstances, bring or cause to be brought any claim or action at law against the party of the first part, its successors or assigns, for damages occurring during the term of this lease, or any renewal thereof, by fire or otherwise to the said * * * or appurtenances erected on said leased land, or to the contents thereof. And it is hereby mutually agreed between the parties hereto that in case said mine and buildings shall at any time during the continuance of this agreement be destroyed by fire or otherwise, this...