xt73bk16mf8w_1 https://exploreuk.uky.edu/dipstest/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dipstest/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [1] J.W. Snowden vs. Lexington and Eastern Railway Company, Lee Circuit Court text [1] J.W. Snowden vs. Lexington and Eastern Railway Company, Lee Circuit Court 2016 https://exploreuk.uky.edu/dipstest/xt73bk16mf8w/data/51w14/Box_1/Folder_1/60764.pdf section false xt73bk16mf8w_1 xt73bk16mf8w \ I ‘ . I
. June 17, 15ﬂ4.
Eon. B. ?. Eerfielﬂ, -
District ﬁttornoy, L e N H R 00.,
':".ouisvi 119 , Ky. ‘
I. Deer Sirz~ J. Y. Snowien v. D & E Ry.Co.
Lee Circuit Court.
Find herewith Renort of Proeeoéings had at the
April Term, 1014, in the above—styled case, together
with oooy of Judgment and Taxation of Costs; ales copy
of letter of the 15th instant from Jon. Sam Hurst, Local
Attorney at Beattyville, in refercnee to the meme ease.
Iours truly,
fine .
I“ *
Couneo}.

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ABSTRACTS AND GUARANTEES 13*. ' , w» APV‘ ' ' V~ LENDS MONEY ON REAL ESTATE
TITLES TO REAL ESE/AI; yNCoRPOHAYED SELLS REAL ESTATE COUPON BONDS,
ANYWHERE 'N CENTRAL K N U ‘ SECURITY TRUST COMPANY BUILDING
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Attorney-at—Lavv
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/ June ‘10, WM.
Mtge Sauna”: “I. ‘..C'L’lsmn,
lloxiny;t,,:>1‘x, Liy. _\
Dear Sir?
I sent; you yes‘stmﬂuf: 1‘0“!)‘1‘L uf‘ proceedings '1: the cases
of J. Suwwdon :md .1‘. C“ {m “"1011 and. {Jr-c.1111} Collin‘L E‘s. L. r; E?.,
togmtho” With {aviation [' oust. i'lg’uzszr rush the Intracnt an“ these
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WV 948/;

 Form 102 I, In 12125» J 1.11 ‘.1:
I—_ ! ‘.') 5522. I
2. LOUISVILLE & NASHVHL RAILRO D COMPANY. i I
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OFFICE OF ATTORNEY AT 2 mm, . b 7:.—3h.
B, D. WARFIELD. /7 .2.. 2 ..22 % 292 }/
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1311.1" 1. Give (lute of ﬁling all pleadings. and their (diameter. {is petitiim. etc., etc.
2. Give date of all proceedings, such {IS motions to strike out for new fatal. etc., etc.
3. In reporting a continuuncn. state, at Whose cast.
4. In reporting ajudgnuent, stale date and amount of judgment. If appeal be taken, state by which party. and whether
bill of excoptions has been filed: if not ﬁled. what time. if any, has been nliowed for filing.

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13's,}: 1. GiVo (late of ﬁling all pleuding‘s, and their character. ms petition. Mm etc.
2. Give date of all proceedings. such as motions to strike out for new trial. etc. L-te.
3. In reporting a continuance. state at whose (test,
4. In reporting ajudg-ment, state (late and amount of judgment. If appeal be taken, state by which party, and whether
< bill of exceptions has been ﬁled: if not ﬁled, what time‘ if any, has liven allowed for filing.

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In the ens: I T. 3 f. Tp’lgwud CU'ygLJ v. Coﬁmonmcthh
of K‘ntinxy, 1;] V. 8. $77, inn Juyﬁumc Court, Jy Jtrtjco '13 L,
, , aft“ 3 '. 4.: ‘ 11 certain 3",»;Intft'1514: t‘: ..1‘22-5311 the nth/Li ‘ ..,
t-‘m Rwy; 11.3.; ,:li‘rmld’ iron .'::-.‘.‘s‘ed, SLJAKZ-

”ﬁesidos this, biwevor, in orlor to an; art the frugazvd
couaclidation of these two systems, tlc partits are UQHnJ t3
skew, not only tL t the T. t E. Co. W43 compntxut t' r.y, L33
tknt the Che;dtoake Co. ﬁes also szt d with FOWCI to sell.

To make a valid antruct it is necessary to show thei oath ,
parties are cenpetent to enter into the proboscd stiyu7;t; as.

It is a fundamental principle in the law of esntrrcts LhaL,

to make a valid apartment, there must be 5:. mcotia; uf' :‘xi;‘._‘..:,

and obviously if there be a disability on the par: of nitlrr

part; to enter into tL: £53,330“ contract, tnrrt 3-4 a? no

vs??? agreement. As was slid by this court in ft. T0“LJ,V.‘%

T. H. {31. CO. v. Torre Harte E; I. ’7. CO., 1-15 1'. L. $95, ASS-2:

'It is unnecessary, however, to 6 press a defihttz wp’a.b:

LTJH the qu»:tion whethzr a contract between ‘, 3 1,:tizr

was beyond tno corfortte power: of tin plaintiff, hrs; Kc, d' '
hold by thr decisions of thin oqdrt alreudy :it ‘, ; TYLTT 3t

UD‘JQLU? the C.)1'j)01“tf glou'cr of‘ ‘ithor party is us inxniifi a:

if bryond the onsgorntc po.ors of both, an7 thr contrici in ~
question was clearly beyond th: c:rporutc 90 or: of the ‘e~

f5 ;.I3z::1t o ' n n

 Q m
J. T. Slade, &c.
. v. CITATIONS.
City of Lexington, &c.
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In Hall vs. McLeod, ? metcrlfe 98, it was held in an Opinion
delivered by Chief Justice Simpson for the Court of Appeals, that
specific evecution of general promises by one to establish a pass-
wey over his land, where no specific contract was made by him with
any person, cannot be had. Said the Court —

"The premises to establish this pessway are relied
upon by the plaintiff as conferring on him a right to
have them specifically executed by the vendee of McDowell,
who, no doubt, knew at the time of his purchase that such
promises had been publicly made. There are, however, two
reasons why a snecific execution of the elleged agreement
cannot be granted. In the first place, it does not ap-
pesr that any agreement was entered into, but that general
promises only were made, and no specific contract was
required orentered into by any person or persons whatever."
The same principle is established in the case of Taters'

Heirs v. Brown, 7 J. J. Marshall lfd, where the Court, by Chief
Justice Robertson, said —

"We are inclined to think that the last agreement can«
not be specifically enforced consistently with the estab—
lished rules of equity, nor without great danger of injusw
tice: 1. Because the bills and answers, exhibits and proofs,
leave this branch of the case in confusion and doubt respec-
ting the precise understanding and rights of the parties.“
Again in the more recent case of Ecton, &c. v. Lexington &

E. By. 00., 59 S. W. 864, the Court of Appeals, by Judge

Hobson. said -

"The contract to build a depot and maintain a station,
as set out in the deed, imports that the railroad co.pany will
build such a depot end maintain such a station as is fairly
adequate to the business to be donethere. What this will
be depends on so many circumstances that we do not think the
contract is of that certain and definite character which a

 .‘ .‘-
I“ .
--2-_

court of equity will undertake to enforce; for to do so will

involve the chancellor in directing the running and managing

of the railroad to some extent, and may interfere with its

discharge of its duties to the public which the law has im-

posed upon it, and the subject is one which a court of equity

is not qualified to deal with. The only remedy, therefore,
that can be given in the case, is a Judgment for damages

for the breach of the contract."

In the excellent article on Specific Performance, by Archibald
R. Watson, in the Am. & Eng. Enc. of Law, 2nd Ed. Vol. 26 at
pages 52-58. it is said -

"To authorize a court of equity to exercise its Jurisdic—
tion compelling the specific performance of a contract, it
must be reasonably certain as to tbs subject matter, its
stipulations, its purposes, its parties, and the circum~
stances under which it was made.

The contract sought to be enforced must, at all events,
be so certain that its meaning can be ascertained, as an
indefinite contract cannot be enforced because the courts do
not know to what the parties agreed.

The meaning and intent of the parties should be placed
beyond the boun s of mere conjecture by full and clear
proof."

These statements in the text are supported by numerous
citations from among which we take the following — Lawrence v.
Seretoge Lake R. 00., 56 Hun (N.Y.) 472; Buckmaster v. Thompson,
36 N. Y. 558; Huntington, etc., Land Development Co. v. Thornburg,
46 W. Va. 99; and especially ihe 0988 of Wharton v. Stoutenburgh,
35 N. J. nq. 274, in which the Court held that Where negotietions
have been conducted by psrol. or are partly evidenced by writings
duly signed and portly rest in psrol, and specific performance
is sought on the ground of part performance, "the terms of the
conirrct must be estrblished by proofs, cleerly, definitely, and
unequivocally." Also, in this connection we call attentioi to
the case of Ross V.Purse, 17 Colo. 24, where the Court. by Helm,

7 J., seid — “The four things thot must appear in such contrscts
as essential prere‘uisites to suits for specific performance are —
First, The name: of ihc parties; Second, The terms and conditions;
T ird, The interest or property; and, Fourth, The considereiioh."
Again in ihc some nork, in Volume 20, page 59, it is said —
/ . . . , .

 __3_-

"It is well setiled that in order to justify a decree
for the performance of e parol agreement reeuired by the
statute of frauds to be in writing, the contract itself must be
reasonably certain and definite, and the acts of part performance
clearly estoblished by the proof. So where a party sce”s to
enforce a parol agreement for the sale of land by a certain
description, he must, in addition to the proof of part per—
formance required to take the case out of the stotute of
fraud:, show that the terms of the contrrct are clear and def—

; inite as to the locality {Ed description of the land. And
\ where proof of the contract is not clear, it will not take the
h f case out of the statute though the complainant may show ccn~
‘ i clusively the full performance of the acts which he alleges
j acre reouircd of him by the contract."
Again,at page 55 of Volume 26 of the same work, it is said —
"The acts of the plaintiff alleged to constitute part
performance must have born performed in good faith, in
reliance upon the parol contract sought to be enforced" etc.
Again, at page 57 of Volume 26 of the some work, it is said —
“The making of Veluable and lasting improvements upon the
property upon the faith of the contract has aleys been a
most persuasive circumstrnce in favor of equitable interposition."
In Reed v. 05mpbell, 43 H. J. Eq., 406; s. c. 4 Atl. Rep. 435,
the complainant presented his bill showing that he had leased the
premises named therein for one year and that, by the terms of said
lease, it was expressly stipulated and agreed by Campbell, the lessor,
that. at the expiration of the term of one year, Reed, the lessee,
and complainant, should have the privilege andright of renewing
same before any other person whatsoever for the next succeeding
year. The exact language of the lease was - "And it is further
agreed that at the expiration of this “ease the said Reed shall
have the first right to lease the said premises for the next suc~
ceeding year or years."

In construing this provision, the Court said -

"Certainly there is nothing in all this to sustain the
allegation that there was an express agreement to renew the
existing lease. What can the court do in such a case, suppo-
sing the injunction stands till final hearing? How is it
possible for the court to aid the complainant without the
risk of doing the greatest injusticei It was not agreed that
the former lease 8 ould be continued ~ but only the first
right to a lease. What shall be the terms of that lease?

Has this court the right to fix the amount of the rent, the

, times when the rent shall be due, the length of the term, and
the obligations of either party to the other respecting res
pairs, underletting and other methods of use and¢pnjoyment.
I am obliged to say that the appeal when condtrigtgd with the

 o o
-04--

undisputed facts is without the slightest merit. The appeal

is, therefore, dismissed."

In Morrison v. Rossignoll, 5 Cal. 64, the Court said -

"The covenant for a lease to be renewed indefinitely at

the option of lessee is in effect the creation of a perpetuity

and is, therefore, against public policy.

Another substantial objection to the enforcement of the
clause of renewal in the lease, disclosed by the record,
consists in the Want of any certain basis for the ascertsin~
ment of the rent to be paid.

It says the rent shall be stipulated according to the
value of the property. But who is to fix the value of the
property? Certainly each party would have the right to do
it for himself, in the absence of cny other stipulation. I
know of no rule of law which crn compel a party to change
his estimate of the value of his property, where by contrrct
he has the right to determine it for himself.

A court of equity is always chcry of its power to decree
specific performance and till withhold the exercise of its
juriddiction in that respect, unless there is such a degree
of certainty in the terms of the contract as will enable it

_ at one View to do complete equity.

1 The maxim, id certum est uod certum reddi otest, is

I here improperly invoEed, for, governed By the language of

f the lease, there is no test by which certainty otn be
attained."

In City of Covington v. Commonwealth, 107 Ky. 680, in which the
liability of the City of Covington to pay taxes to the Commonwealth
and to Campbell County upon certain property upon which water works
had been erected was the main question involved, it appears that in
"An act to amend the charter of the City of Covington" approved May
1, 1886, was a provision in these words: "Its reservoir or reservoirs,
pumping house, machinery, pipes, mains and appurtenances, with the
land upon which they are situated shall be and remain forever exempt
from state, county and city taxes." The claim of the City of Coving-
ton to exemption of its water works property from taxation was based
upon this provision in its charter. In answer to this contention,
the Court said —

"It is argued that as, upon_the faith and in pursuance
of the special statute of Mfy l, 1886, the city of Covington,
Hy taxation cf the property of its citizens, purchased the
land and erected thereon t e waterworks in question at great

' expense, it has acquired a contract right to the exemption

now claimed. But it seems to us. if the General Assemblv was,

as we think, without constitutional authoritv to make the

contract, assuming one was made, it is not, nor could be,
valid or enforceable. Besides, by a general statute enacted

 .. O
_-5~_
February 14, 1856, and continued in force to the present time,
the special act under which theexemption is now claimed, and all
others like it, were rendered'subject to repeal at the will of
the General Assembly."
This c:se was carried to the Supreme Court of the United
States and the decision of the Court of Appeals there affirmed
(See Covington v. Commonwealth of Kentucky, 175 U.S. 231.) The
Supreme Court/in the Opinion delivered by Mr. Justice Harland,
expressed the following views -
‘ . "The fundamental question in the case, then, is whether
at the time of the adoption of that Constitution the city of
Covington had, in respect of the lands in question, any
contract with the state the obligation of which could not be
impaired by any subsequent statute or by the present Constitution
of Kentucky adopted in 1891. If the exemption found in the
act of 1886 was such a contract, then it could not be affected
by that Constitution any more than by a legislative enactment.
We are of opinion that the exemption from taxation embode
ied in that act did not tie the hands of the commonwealth of
Kentucky so that it could not, by legislation, withdraw such
exemption and subject the property in question to taxation. The
act of 1886 was passed subject to the provision in a general -
statute of Kentucky above referred to. that all statutes "shall
be subject to amendment or repeal at the will of the Zegislature,
unless a contrary intent be therein plainly expressed." If that
act in any sense constituted a contract between the city and
. the commonwealth, the reservation in an existing general statute
of the right to amend or repeal it was itself a part of that
contract. Griffin v. Kentucky Ins. Co. 3 Bush, 592 (96 Am. Dec
259). The city accepted the act of 1‘86 and acquired under it
the property taxed subject to that reserVCtion. There was in
that act no ”plainly expressed" intent never to amend or to
repeal it. It is true that the legislature said that the reser-
voirs, mxchinery, pipes, mains and appurtenances, with the land up-
on which they were situated, should be forever exempt from state,
county and city taxes. But such a provision falls short of a
plain expression by the legislature that at no time would it
exercise the reserved power of amending or repealing the act un-
‘der which the property was acquired. The utmost that can be
isaid is that it may be inferred from the terms in which the ex-
iemption was declared, that the legislature had no purpose at
*the time the act of 1886 Was passed to withdraw the exemption
1from taxation; not that the power reserved would never be ex—
erted, so far as taxation wasconcerned, if in the judgment of
the legislature the public interests required that to be done.
:The power expressly reserved to amend or repeal a statute should
;gnot be frittered away by any construction of subsequent statutes
based upon mere inference. Before a statute - particularly one
relating to taxation — should be held to be errepealeble, or not
subject to amendment, an intent not to repeal or amend must be
so directly and unmistakably expressed as to leave no room for
,doubt; otherwise, the intent is not plainly expressed. It is not
Eso expressed when the existence of the intent arises only from
. iinference or conjecture. * * * *
i If, however, the preperty in question be regarded as in
some sense held by the city in its governmental or public char—
acter, and therefore as public property devoted to public pur-
poses, - which is the interpretation of the state Constitution
for which the city contends, — there would still beﬂground for
’\

 . 5
--5_...
holding that the city had in theact of 1H86 a contract within
fthe meaning of the Constitution of the United States. A municipal
‘corporation is a public instrumentality established to aid in the
, fadministration of the affairs of the state. Neither its charter
gnnr any legislative act regulating the use of property held by
9 it for governmental or publcc purposes is a contrcct within
the meaning of the Const'tution of the United States. If the
legislature choose to subject to taxation public property held
by a municipal corporation of the state for public purposes,
the Validity of such legislation, so far as the national Consti-
tution is concerned, could not be questioned.
In New Orleans v. New Orleans Water Works Co. 142 U.S. 79,
91 (35: 943,947), after referring to previous adjudications,
,this court said that the authorities were full and conclusive
fto the point that a municipal corporrtion. being a mere agent
'of the state, 'stznds in its governmental or public character
in no contract relations with its sovereignty, at those pleasure
tits charter may be amended, changed, or revoked without the
'impairment of any constitutional obligction, while with reSpect
to its priVate or proprietary rights and interests it may be en-
titled to the constitutional protection.‘ Chancellor Kent, in his
Commentaries, says: 'In respect to public or municipal corporations,
which exist only for public purposes, as counties, cities, and
towns, the legislature, under prOper limitations, has a right to
change, modify, enlarge, restrain, or destroy them; securing,
however, the property for the uses of those for whom it was pur—
chased. A public corporation instituted for purposes connected
with the rdministrstion of the government may be controlled by the
legislature, because such a corporation is not a contract within .
_the purview of the Constitution of the United States. In those
public corporations there is, in reality, but one party, and the
trustees or governors of the corporation are merely trustees fm‘
the public.‘ 2 Kent. Com. 12th ed. p. 306. Dillon says:
'Public, including municipal corporttions, are called into being
at the pleasure of the state, and mhile the state may, and in the
case of municipal corporations usually does, it need not obtain
the consent of the people of the locality to be affected. The
charter or incorporating act of a municipal corporation is in no
5 sense a contract between the stat; and the corporation,although,
as we shall presently see, vests? ights in favor of third per—
sons, if not indeed in favor of he corporation, or rather the
community which is incorporated, may arise under it. Public cor—
.porations within the meaning of this rule are such as are es—
tablished for public purposes exclusively, — that is, for purposes
connected with the administration of civil or of local government,
— andcorporations are public only when, in the language of Chief
Justice Marshall, 'the whole interests and franchises are the
exclusive property and domain of the government itself‘, such as «
quasi corporations (so—called), counties and towns or cities upon
which are conferred the powers of local administration. Subject
to constitutional limitations presently to be noticed, the power of -
the legislature over such corporations is supreme and transcend-
ent; it may, where there is no constitutional inhibition, erect,
change, divide. and even abolish them, at pleasure, as it deems
the public good to require.‘ 1 Dill. Mun. Corp. 4th ed. p. 93,54.

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