Weaver v. Shipley

• Decision Date: 31 March 1891
• Docket Number: 14,750
• Citation: 27 N.E. 146,127 Ind. 526
• Parties: Weaver v. Shipley et al
• Court: Indiana Supreme Court

27 N.E. 146

127 Ind. 526

Weaver v. Shipley et al

No. 14,750

Supreme Court of Indiana

March 31, 1891

From the Tippecanoe Circuit Court.

The judgment is affirmed.

J. R Coffroth, J. H. Adams and T. H. Stuart, for appellant.

W. D Wallace and S. P. Baird, for appellees.

OPINION

Miller, J.

The appellees commenced this action to enjoin the appellant Elmore Weaver, and one Bahlah W. Weaver from interfering with certain premises which it was alleged the appellees and one Underhill had leased from said Bahlah W. Weaver.

The defendants answered by a general denial. There was a trial by the court and finding against the appellant, Elmore Weaver and judgment rendered against him enjoining him from interfering with the leased premises and for one hundred dollars damages, and in favor of Bahlah W. Weaver for his costs.

The appellant, Elmore Weaver, assigns errors as follows:

1. Because the court erred in overruling his separate demurrer to the amended complaint.

2. Because the court erred in its conclusions of law, and each of them.

3. Because the court erred in overruling his motion for a new trial.

4. Because the court erred in overruling his motion to modify the judgment.

5. Because the court erred in overruling his motion in arrest of judgment.

6. Because the amended complaint does not state facts sufficient to constitute a cause of action against him.

The material allegations of the complaint are, omitting descriptions and formal parts, that on the first day of March, 1883, the plaintiffs and defendant Underhill were desirous of procuring ground upon which to erect a tile mill for the manufacture of tile, and from which to obtain clay to be used in such manufacture; that on that day they applied to the defendant, Bahlah W. Weaver, who was the owner of the real estate, to lease the same for that purpose; that on said day the plaintiffs and Underhill, and the defendant, Bahlah W. Weaver, entered into an agreement whereby said Bahlah agreed to, and did, lease to them for the term of ten years, for the purposes aforesaid, three several tracts of real estate lying adjoining and contiguous to each other, for which they were to pay him as rent seventy-five dollars per year in tile, at the market price; that at and prior to the making of said lease, the plaintiff and said Weaver went upon and over the three tracks of land so leased and mutually pointed out and agreed upon the location of the same; that it was agreed, as a part of the contract, that the plaintiffs were to have all the clay suitable for tile upon the three-cornered tract which they might use during the terms of the lease, and, if they needed it, all the clay on all the tracts of land, but they were to use and occupy no more of the land or clay than they needed for use during the term of the lease; that after they had agreed upon the terms of said lease, and had pointed out and agreed upon, and located by actual view the three tracts of land, they attempted to reduce said contract of lease to writing, and attempted to describe therein the said land leased to them, and that they did sign and execute a written agreement of lease in which they attempted to describe, and thought they had sufficiently described, each of the tracts of land so pointed out, located, agreed upon, and leased as aforesaid; which written contract is in the words and figures following, to wit:

"March the first, 1883. Article of agreement made and entered into between B. W. Weaver and James Shipley, Allen Shipley and William Underhill, to wit: B. W. Weaver agrees to rent to the parties of the second part ground to set a tile mill, and shedding, and kiln, not to exceed four (4) acres of ground, it being in the northwest corner of the northeast quarter of the east southeast quarter of section twenty-seven (27), town. twenty-four (24), range three (3) west; also, a strip of land ten feet wide, on the west side of the east line running north and south, for the purpose of making tile, it being the east side of the northwest quarter of the southeast quarter, section twenty-seven (27), town. twenty-four (24), range three (3) west; also, a three-cornered piece in the northeast corner of the last described land, and to have all the clay they want for tile in the three-cornered piece, keeping south line parallel with the congressional survey of the land; and also one house, and stable, and garden, and smokehouse, the last described property in the southwest corner of the northeast quarter, section twenty-seven (27), town. twenty-four (24), range three (3) west; this lease is to run ten years from date; the parties of the second part agree to pay the party of the first part seventy-five dollars annually in tile, at the market price, of such tile at the kiln, as the party of the first party may choose. If the parties of the second part failing to pay the amount, forfeit all rights to the above named premises, and the parties of the second part want a way out to the east road of the woods pasture, they must hang a good and substantial gate, and keep the same shut.

"B. W. Weaver,

"James Shipley,

"Allen J. Shipley,

"Wm. Underhill."

That immediately after the making of said contract and the execution of said lease, and in pursuance thereof, they entered upon and took possession of all said real estate pointed out, and relying upon said contract and their ability to hold all of said lands for the term agreed upon, they, with the knowledge and consent of said Weaver, proceeded to and did erect various buildings of a permanent nature particularly described, and also constructed a barb-wire fence around the tract, costing in the aggregate in the neighborhood of $ 2,700; that after the erection of said mill and other buildings, and during the year 1883, the plaintiffs began to make and ever since have made and sold large quantities of tile, and with the knowledge and consent of said Bahlah W. Weaver they entered upon the three-cornered tract and have ever since continued to take clay therefrom, and use the same in the construction of tile, with the knowledge and consent of Bahlah W. Weaver and Elmore Weaver; that they have only removed the clay from a half acre of said three-cornered piece; that last fall Bahlah W. for the first time intimated that the plaintiffs had no right to remove clay from the so-called three-cornered piece of land, but they continued without molestation to remove clay therefrom until the close of the tile season; that Elmore Weaver claims to have purchased, in February, 1887, from Bahlah W. twenty acres of land, covering and including the so-called three-cornered tract of land, and since that time he and the defendant, Bahlah, have forbidden the plaintiffs from removing clay therefrom; that Underhill has sold and assigned his interest in the contract and lease to the plaintiffs; that Elmore Weaver, who is the son of Bahlah W., and had full knowledge of the making of the contract and lease at the time of the execution thereof, and of the exact location of said three-cornered tract, and knew where the same was located and agreed upon by the parties, and had full knowledge of the improvements, and that they had made the same on the faith of said contract and lease, and full knowledge of the fact that it was absolutely necessary for them to have this tract in order to carry on their tile business at the time he purchased the land; that the plaintiffs have no other place from which to obtain clay for their tile mill, and that they can not in that neighborhood procure any other place from which to obtain the same, and that unless they can obtain said clay their contract of lease will become wholly valueless and their tile mill and improvements will be wholly lost; that their lease has six years to run, and there is an abundance of clay on the three-cornered piece to last during the time it has to run; that the defendant, Elmore Weaver, forbade the plaintiffs from entering on said three-cornered piece of land, or removing clay therefrom, and tore down the gate and bridge-way which the plaintiffs had constructed for the purpose of driving to said tract of land, and set fire to the bridge, and that he now threatens that he will by force and violence keep the plaintiffs away from said tract, and from removing clay therefrom, and that the defendants, Weaver and Weaver, are by force and threats of personal violence preventing the plaintiffs from entering upon or removing clay from said tract, and will continue to do so unless enjoined by this court, to their irreparable damage; that the plaintiffs have fully complied with all the agreements and stipulations on their part, and have promptly and fully paid their rent as stipulated for in said lease, and that they have been damaged in the sum of $ 2,000. The prayer is for damages and an...