Riverside Coal Co. v. North Indianapolis Cradle Works

139 N.E. 674, 194 Ind. 176, 1923 Ind. LEXIS 27
CourtIndiana Supreme Court
DecidedMay 29, 1923
DocketNo. 24,354
StatusPublished
Cited by8 cases

This text of 139 N.E. 674 (Riverside Coal Co. v. North Indianapolis Cradle Works) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riverside Coal Co. v. North Indianapolis Cradle Works, 139 N.E. 674, 194 Ind. 176, 1923 Ind. LEXIS 27 (Ind. 1923).

Opinions

Ewbank, J.

Appellee sued to recover possession of certain real estate, with damages for alleged unlawful holding over after the termination of a lease, and re-’ covered 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 In[178]*178dianapolis, 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 [179]*179defendants 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 [180]*180that 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 had been connected with the company forty years (the trial was in January, 1920) ; that a fence parallel with the railroad switch, within three and a half feet from the east rail, extended from the alley southeast to a point west of the warehouse for eighteen or twenty years, until it rotted, down, and another fence extended west from the northwest corner of the warehouse to the switch. There was also other evidence to the effect that appellants removed the fence along the alley after the lease was made; that, during the term of the lease, they shoveled coal out of cars placed on the switch, and left it piled where it fell until they loaded it into wagons and hauled it to purchasers, and that the only use they made at that time of any land farther from the switch track than the coal was thus thrown in unloading cars was in driving in and turning around, and occasionally in storing carts and trucks; and appellants produced witnesses who testified that in unloading coal from a car, it could not be thrown more than eight feet, and then might roll down the farther side of the pile ;■ and there [181]*181was evidence that up to two weeks before the trial, the defendant company continued to unload cars from this switch upon the adjoining ground east of the track, and that piles of the coal thus unloaded spread to a distance east of the switch variously given by different witnesses as from eighteen to sixty feet, and that the company continued to drive in and turn the carts, wagons and trucks on the ground east of the piles of coal. There was also evidence to the effect that, during all the years for which appellants paid rent, they neither unloaded nor stored coal on that part of the ground directly north of the warehouse, and that, except for using that part occasionally as a wagon yard, appellants during all the term of the lease made little use of any ground except what lay west of a line drawn north from the west end of the warehouse.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brennan v. Reydell
187 N.E.2d 492 (Indiana Court of Appeals, 1963)
Chesapeake & Ohio Railway Company v. Burk
172 N.E.2d 670 (Indiana Supreme Court, 1961)
Rageas v. Hohman-Clinton Realty Corp.
88 N.E.2d 255 (Indiana Court of Appeals, 1949)
St. Germain v. Sears, Roebuck & Co.
44 N.E.2d 216 (Indiana Court of Appeals, 1942)
Dowty v. State
179 N.E. 720 (Indiana Supreme Court, 1932)
Russell v. Trustees of Purdue University
178 N.E. 180 (Indiana Court of Appeals, 1931)
Fronce v. Nichols
22 Ohio C.C. 539 (Ohio Circuit Courts, 1901)

Cite This Page — Counsel Stack

Bluebook (online)
139 N.E. 674, 194 Ind. 176, 1923 Ind. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riverside-coal-co-v-north-indianapolis-cradle-works-ind-1923.