Spencer Stone Company v. Sedwick

• Decision Date: 05 June 1914
• Docket Number: 8,074
• Citation: 105 N.E. 525,58 Ind.App. 64
• Parties: SPENCER STONE COMPANY ET AL. v. SEDWICK
• Court: Indiana Appellate Court

105 N.E. 525

58 Ind.App. 64

SPENCER STONE COMPANY ET AL. v. SEDWICK

No. 8,074

Court of Appeals of Indiana

June 5, 1914

Rehearing denied October 29, 1914. Transfer denied January 29, 1915.

From Owen Circuit Court; Joseph W. Williams, Judge.

Action by Nancy Sedwick against the Spencer Stone Company and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Willis Hickam, John C. Robinson, Samuel O. Pickens and Owen Pickens for appellants.

Homer Elliott, J. R. Cauble and I. H. Fowler, for appellee.

OPINION

CALDWELL, J.

Appellee's complaint is in three paragraphs. By the first she seeks to enjoin appellants from the use, and to compel the removal of, a certain railroad switch extending from the railroad of appellant railroad company over her lands to a stone quarry, owned and operated by appellant stone company, on adjoining lands. By the second, she seeks to quiet her title to the lands against all claims of appellants, and by the third she sues for compensation for the use of the switch and the lands occupied thereby. Each appellant filed an answer in general denial, and filed also a cross-complaint, alleging that it was the owner of a perpetual easement over appellee's lands as and for a right of way for the switch, and praying that its title to such easement be quieted, and that its right to maintain and operate the switch be established, and that appellee be enjoined from interfering with appellant's respective rights in the premises. Appellee filed a general denial to each cross-complaint.

At the request of the parties the court made a special finding of the facts, and stated conclusions of law thereon. The material facts as found by the court are in substance as follows: On and prior to March 8, 1884, Buckner Dickerson was the owner in fee of a tract of land in one body, containing 172 acres, being the east half of the northeast quarter of section 30, except 5 acres off the south end thereof, and about 97 acres off the west side of section 29, township 10 north, range 3 west, in Owen County, Indiana, which tract of land included the tract described in the complaint as owned by appellee, and also the tract described in the cross-complaints as owned by appellant stone company. The Spencer and Worthington highway extended in a northerly and southerly direction through that part of the lands so situate in section 29. West of the highway, and near the north section line was a stone quarry, known as the Sweitzer quarry, from which stone was quarried and shipped by railroad, and sometimes hauled away in wagons. A line of railroad then owned by the Indianapolis and Vincennes Railroad Company and operated by the Pennsylvania Company, and now owned and operated by appellant Vandalia Railroad Company, ran along and upon the east side of the tract of land. The elevation of the quarry was about forty feet above the line of the railroad. The prior operation of the quarry had not been very extensive or successful because of difficulty of access to the quarry by railroad. On March 8, 1884, said Dickerson, by lease in writing duly acknowledged and recorded, leased to the Indiana Stone and Cement Company, its successors and assigns, for a period of twenty-five years from date, a part of the tract lying west of the highway, being the tract of land now owned by appellant stone company, and including that part on which the Sweitzer quarry was situate, but not including any part of the lands now owned by appellee or any part of the lands on which the switch described in the pleadings is situated. By the provisions of the lease, the lessee and its successors and assigns, were granted the exclusive right during the term of the lease to quarry stone on the leased premises, and to remove it therefrom and to manufacture lime and cement from such stone; also the authority to construct and maintain a side track or switch beginning at a point on said railroad near the southeast corner of said lands, running thence in a northwesterly direction to the quarry; also to remove from the premises at the expiration of the lease all buildings, side tracks, switches, etc., which had been placed on the premises by lessee or its successors or assigns, or by the prior operators of the quarry. The lease by its terms expired at the end of twenty-five years from the date of its execution, and on March 8, 1909, the lease expired, and it has not been extended or renewed. On March 29, 1888, Buckner Dickerson conveyed said 172-acre tract by warranty deed to Orris T. Dickerson, except about three acres in the northeast corner thereof, reserving the rents and profits of the tract conveyed during grantor's natural life. February 28, 1895, Orris T. Dickerson, by warranty deed, conveyed to Aden Baber that part of the tract situate in section 29, except three acres in the northeast corner. By quitclaim deed, dated June 25, 1897, Buckner Dickerson conveyed to Baber the tract situate in section 29, except the part thereof, lying on the west side of the highway, and also "except the right of way for switch purposes from the stone quarry at the northwest corner of section 29 along the railroad switch in a southerly direction, to the Indianapolis and Vincennes Railroad, as set out in the lease thereof now on record in the recorder's office of Owen County, Indiana, during the continuance of such lease." By deed dated June 28, 1897, Baber conveyed to Buckner Dickerson by warranty deed all that part of section 29 lying west of the highway. July 12, 1889, Buckner Dickerson conveyed by quitclaim deed to Mary M. Dickerson, all that part of section 29 that lies west of the highway, the conveyed tract including the quarry premises, and on March 1, 1900, Mary M. Dickerson and Orris T. Dickerson, her husband, by warranty deed conveyed to Perry H. Blue, trustee, the tract of land on which the quarry is situated, which tract Blue conveyed to appellant stone company on May 21, 1900. Said appellant is now the owner of a part of the tract of land situated west of the highway and on the tract operates a stone quarry, and is engaged in the business of quarrying and crushing stone, and ever since May 21, 1900, has used the switch in shipping the product of the quarry. January 28, 1904, Baber, having died intestate, his widow and heirs by warranty deed conveyed to appellee all the tract situated in section 29, except three acres in the northeast corner thereof, and except also that part thereof lying west of the highway. Appellee has owned this tract continuously since said date, and the switch is located on the tract.

Immediately subsequent to the execution of the lease, the lessee constructed the switch provided for thereby over the premises then owned by Buckner Dickerson, and now owned by appellee, a total length of 1,880 feet from the railroad to the southeast line of the quarry premises. On the completion of the switch, the lessee began to quarry stone from the quarry, and to transport it over the switch track to the railroad, and it and its successors and assigns so continued until the lease by successive assignments in writing, duly executed and recorded, passed into the hands of The Spencer Lime and Ruble Company, on February 3, 1888, which company continued to operate the quarry, and to use the switch under the terms of the lease until March 1, 1900, being the date on which the quarry premises were conveyed to Perry H. Blue, trustee. Appellant, Spencer Stone Company, after it acquired title to said quarry premises, on May 21, 1900, commenced to operate the quarry and switch, and so continued until the expiration of the lease on March 8, 1909, and thereafter so continued and is now so operating the quarry and switch and is transporting over the latter about 400 carloads of stone per year. No other right or authority was ever given by the owners of the real estate traversed by the switch to the lessee or its successors or assigns, or to any one else to use the switch except the right and authority given by the lease. The switch is the most practical and convenient way by which the product of the quarry can be shipped by railroad, and is the most accessible route from the stone quarry to the railroad. The switch is and ever since its construction has been reasonably convenient, accessible and necessary to the fair enjoyment of the stone quarry premises. In May, 1909, after the expiration of the lease, and before the bringing of this action, appellee notified each appellant that the lease had expired, and that if they continued to use the switch they would be regarded as trespassers. Appellant railroad company is the successor of the Indianapolis and Vincennes Railroad Company, and the former during the six years last past has hauled about 400 carloads of stone annually from the quarry over the switch.

On the finding the court stated conclusions of law to the effect that appellee was entitled to have her title to the lands quieted as against the easement claimed.

The first question presented is respecting the correctness of the conclusions of law. Appellants base their contentions solely on certain legal principles well stated in John Hancock etc., Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188, 53 Am. Rep. 550, as follows: "Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant of the one an easement is also granted...