Wheeling Bridge & Terminal Ry. Co. v. Reymann Brewing Co.

• Decision Date: 01 November 1898
• Docket Number: 261.
• Citation: 90 F. 189
• Parties: WHEELING BRIDGE & TERMINAL RY. CO. et al. v. REYMANN BREWING CO.
• Court: U.S. Court of Appeals — Fourth Circuit

90 F. 189

WHEELING BRIDGE & TERMINAL RY. CO. et al. v. REYMANN BREWING CO.

No. 261.

United States Court of Appeals, Fourth Circuit.

November 1, 1898

William P. Hubbard, for appellants.

Henry M. Russell, for appellee.

Appeal from the Circuit Court of the United States for the District of West Virginia.

Before SIMONTON, Circuit Judge, and MORRIS and BRAWLEY, District Judges.

SIMONTON Circuit Judge.

This case comes up on appeal from the circuit court of the United States for the district of West Virginia. It arose from an intervention filed by the Reymann Brewing Company in the cause of the Washington Trust Company against the Wheeling Bridge & Terminal Railway Company, and seeks to establish a preferred claim against the property in the hands of the defendant company. This claim is for two separate items,-- one of $2,500, the value of certain property alleged to have been taken by the railway company in constructing its track the other, of $600, for failure in fulfilling its contract while building its track, to pave a certain alley. The Reymann Brewing Company was the owner of certain real property lying in a suburb of the city of Wheeling, called 'Manchester.' On this property it conducted its business,-- the manufacture, brewing, and selling of beer. Upon it were the buildings erected and used for these purposes. This realty consisted of four parcels, separated by streets or alleys from one another. The whole tract is bounded on the east by Warren street, on the west by Wheeling creek, on the north by Seventeenth street, or the city of Wheeling, and on the south by certain property of the heirs of Pebler. The four parcels are numbered 1, 2, 3, 4; No. 1 being the south parcel, and the others following consecutively, making No. 4 the north parcel.

In the year 1889 Judge Cochran, the president of Wheeling &amp Harrisburg Railroad, had in contemplation the building of a railroad for terminal purposes of the Wheeling Bridge &amp Terminal Railroad Company. In order to build this road, it was necessary to have the right of way over and through the lands of the brewing company. In order to promote his enterprise, and to advance his proposal to capitalists, he approached the president of the brewing company, and obtained permission for this right of way. The definite location of this right of way was not fixed, except that it was to be along the creek bank, outside of (that is to say, to the west of) the buildings of the brewing company, so as not to interfere with that company. The president of the company said that this general grant of the right of way was 'merely that they should have a good showing when they come East and make the necessary arrangements. ' When the construction of the railroad actually begun, it was found inconvenient and expensive to go too near the bank of Wheeling creek, and the tracks were laid more to the eastward, and instead of one track, as was at first suggested, several tracks were laid. This change of location was accomplished without any seeming inconvenience to the brewing company, or interference with its buildings on tracts 1, 2, and 3, and the work progressed very well. But on tract 4 the change of location of the track, and certain other changes made necessary by a construction of a bridge over Seventeenth street,-- changes made for the convenience both of the railroad company and of the brewing company,-- the track was brought so near to an old ice house of the brewing company, and in use by it, as to make it of no practical utility to the brewing company. At first the new location for the track passed through the boiler house attached to the ice house, and this had to be moved. Then the track itself necessitated raising the chutes through which ice was carried to the ice house to such a height that the ice was all broken when delivered, so the old ice house was abandoned by the brewing company, and has since become a ruin, practically having disappeared. This raises the chief issue in this case. The petition intervening gives this account of the transaction, after stating the necessity for a change in the location of the railroad from that first contemplated, and that as a consequence the tracks were brought across parcel No. 4 at such a place and in such manner as to prevent altogether the further use of the ice house and its machinery for the purposes for which they were intended:

'It was thereupon agreed between the said Wheeling Bridge & Terminal Railway Company and your petitioner that the said railway company might have its right of way according to the new location, and might construct its tracks across the said four parcels of land according to the said new location, and in consideration thereof the said railway company agreed that it would at its expense remove the boiler house of your petitioner upon the said parcel numbered one to a point on the said parcel further west than it had theretofore stood, so as to permit the tracks of the railway company to run to the east of it; that it would make certain changes in the bridge owned by the said city of Wheeling, the eastern end of which rested upon the said continuation of said Seventeenth street; that it would, at its expense, pave the alley aforesaid, which lies between the said second and third parcels of your petitioner's land (this alley being a public alley, but having property of your petitioner on both sides of it, and being especially used by your petitioner for access to the creek); that it would cross the last-mentioned alley with its tracks by a bridge having under it a sufficient clearance to permit the passage of teams; and that it would pay to your petitioner the sum of twenty-five hundred dollars in money. As a part of the said agreement, it was further agreed that your petitioner should convey to said railway company the said ice house on the said parcel numbered four, and the land on which the said ice house was situated, and that with that land it should grant to the said railway company a right of way for persons, horses, and vehicles between that land and Warren street, so that access could be had to the said land from the last-mentioned street. ' That it has not paid the $2,500, and has not paved the alley.

It estimates the latter at $600, and its money demand is for the aggregate of these sums, with interest.

There was only one written agreement between the parties. That is as follows:

'This memorandum witnesseth that the Reymann Brewing Company of Wheeling, West Virginia, in consideration of one dollar paid by the Wheeling and Harrisburg Railway Company of West Virginia hereby grants and conveys to said railway company, its successors and assigns, a right of way for its railway over and along said company's lands situate on the easterly bank of Wheeling creek, in said city of Wheeling, Ohio county, in said state; said right of way to include the strip of land on and along the east bank of said creek from the buildings of said Reymann Brewing Company to the bed of the creek. This grant is accepted by said railway company with the agreement on its part that it shall, in constructing its tracks over said lands, preserve the facilities for storing ice in said company's ice houses, or, if any changes are required therein, they shall be made at the cost of the railway company, and in such wise as not to be less useful and convenient to the brewing company; and any change made in the Seventeenth street bridge shall be such as shall not injure the access to the brewing property, and shall conform to the city ordinance granting a right of way over streets, &c., to said railway company. It is further stipulated that in constructing said road and tracks over said lands the foundations to buildings and to the brick stack shall not be interfered with, and all proper precautions shall be taken to protect said brewery property from injury. Said brewing company agrees to execute such other conveyance as may be necessary to assure to said railway company the right of way hereby intended to be described. Witness the corporate seal of said brewing company, and the attestation of its president, this 25th day of July, 1888, together with the seal and attestation of said railway company by its president.'

All that was done afterwards was in parol, and is testified to by the president and by the manager of the brewing company. The railway was completed in 1889. The petition was filed on December 9, 1895. Judge Cochran, who was president of the railway company at the time of this construction, died after this intervention was filed.

The receiver, in his answer to the petition, set up the laches on the...