Stratton's Independence, Ltd. v. Midland Terminal Railway Co. , 32 Colo. 493 ( 1904 )

Chief Justice Gabbert

delivered the opinion of the court.

The omission from the transcript of record lodged in this court on appeal of the appeal bond and indorsements showing the date of filing and approval may be supplied by supplemental transcript showing that such bond was, in fact, filed and approved within the time fixed by the trial court.

The action was commenced and maintained by plaintiff on the theory that the license granted by the mining company was irrevocable. To this action the Short Line was made a party. It appears from the pleadings, as well as the testimony, that the purpose of the mining company in taking up the track in question and laying down one of its own, was to con-meet the latter with the tracks of the Midland as well as the Short Line company, so that each might have access to the ore bins of the mining company. It appears that the mining company intended, if it had not, in fact, so arranged with the Short Line, that the latter should have the use of this track. The purpose of plaintiff in maldng the Short Line a party was to secure a judgment which would prevent it from in any manner interfering with plaintiff’s grade or track, which it claimed the exclusive right to use and control. The judgment entered expressly inhibits the Short Line company from in any manner interfering with the reoccupation of the grade upon which the Midland company claims the right to construct and maintain its track. So long as this judgment stands, the Short Line company would certainly be prevented from using the track in question, even though it should be held that the mining company had the right to take up the track laid by the Midland company and construct one of its own. The mining-company has the right, if entitled to lay and control the track in controversy, to enter into an arrangement with the Short Line whereby the latter may have the use of such track. The effect of the judgment is to inhibit the mining- company from entering into such an arrangement with the Short Line, even if the former should be decreed the right to lay and control its own track over the grade which the Midland company claims. The mining company is the owner of the fee over which such track may be constructed, and it has the right to have the judgment against the Short Line reviewed, because that judgment affects its (the mining company’s) interest in a freehold. In order, then, to have the questions at issue fully determined, and its rights fully protected and adjudicated, the mining -company, by virtue of section 400 of the code, could have appealed from the entire judgment, and in so doing, used the name of the Short Line, even if the latter had not joined in the appeal. The Short Line is also prevented from entering into an arrangement whereby it eonld enjoy the easement to which it is entitled by virtue of án arrangement made or hereafter to be entered into with the mining company, because it is also enjoined from in any manner interfering with the reoccupation of the grade claimed by the Midland company. This right, of which the Short Line is deprived by the judgment, is an easement in real estate, and hence, as to it, a freehold is also involved. — Wyatt v. Irr. Co., 18 Colo. 298. The motion to dismiss the appeal is denied.

As has often been remarked in opinions, discussing the question of whether or not an executed parol license which imposes a servitude on an estate in lands is revocable at the will of the licenser, the authorities are conflicting and irreconcilable. It can, therefore, serve no useful purpose to undertake a discussion of the various propositions under which the courts have reached opposite conclusions on that subjéct. The case at bar has peculiar features by virtue of which our conclusion is controlled, which clearly distinguish it from any case on that question decided by this court or the court of appeals, particularly Tynon v. Despain, 22 Colo. 240; and DeGraffenried v. Savage, 9 Colo. App.131. The license granted to the Midland company was limited in the sense that it could only be enjoyed in handling freight for the mining company. There was no compensation paid, or exacted, for such license; no promise to 'convey a right of way over which the track was constructed; no promise that such license should continue for any definite length of time. The written request to build granted no right to the railway company different from that which would have passed had the request been verbal. The arrangement entered into was for the mutual accommodation of the mining and railway companies. It was never intended that the track in question should he extended beyond the limits of the property of the mining company, nor was it ever extended beyond such limits; neither was it used or intended to be utilized except in connection with the business of the mining company. The purpose of having the track extended to the bins of the mining company was to afford it better facilities for transporting its ore. By building the track the Midland company secured the transportation of such ore, as well as supplies which the mining company shipped in for use in operating its mine. The Midland company, therefore, has not been defrauded or misled, nor has it expended money on the faith of the license granted except so far as by such expenditure it expected to be, and has been, benefited by the business obtained from the mining company. The railway company was certainly under no obligation to maintain the track in question. It could have removed it at its pleasure, and the mining company would have had no recourse against it for any breach of contract. It is apparent, therefore, that there was no contract mutually binding and obligatory upon each of the parties, but the arrangement entered into was only for their mutual convenience, so long as the railroad company saw fit to operate its cars over the track, or the mining company to permit it to occupy its ground for the purpose of maintaining such track. In such circumstances we are of the opinion that the license granted the Midland company by the mining company was revocable at the will of the latter. — Nat. Stock Yds. v. Wiggins Ferry Co., 112 Ill. 384; Minn. Mill. Co. v. Minn. & St. L. Ry. Co., 51 Minn. 304; Jackson & Sharp Co. v. P. W. & B. R. R. Co., 4 Del. Chan. 180; L. S. & M. S. Ry. Co. v. Hoffert, 40 Ill. App. 631.

The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views herein expressed.

Judgment reversed.

Steele, J., not sitting.