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to terminate until six months later. It cut | 1880, which, in our opinion, changed the up the branch line in a way which it is termination of that grant. It is an entire impossible from this record to give any rea- mistake to say that at this time the right son for, and accordingly, under the then-ex- to operate the Garden street tracks termiisting circumstances, it might be argued that nated at the same time with the right of the words, "terminate with the grant for the company to operate the Euclid avenue the main line," did not mean the Euclid ave-line, or that the Garden street branch was nue line, but it referred to the Garden street but an extension of that line. branch, which was, as a matter of fact, the main line so far as concerned the small extension of the track from Lincoln avenue to Woodland Hills avenue. To terminate the grant for the extension at the same time with the grant for the line thereby extended would be the most obvious and natural course to pursue. It is true the ordinance itself recognizes the "branch and its main line" as constituting two different lines, and provides that the grant is to terminate with the grant for the main line. And yet the real meaning of the ordinance, when regarded in the light of the facts then existing, becomes, to say the least, ambiguous. The general provision for the termination of the grant for the whole Garden street branch, as made in 1880, ought not to be expunged by an implication arising out of such doubtful language as is found in this 1885 ordinance. But if otherwise, it results only that the particular extension expired in September, 1904, with the grant to the Euclid avenue line, which, at that period, expired on that date.
In 1887, June 17, an extension of the Garden street branch was granted, which, by the terms of the ordinance, was to terminate "with the grant for the Garden street main line," without increase of fare being charged. Here the council, it will be observed, expressly referred to the Garden street branch as the main line, and it is undoubtedly plain that it was properly so referred to. In extending the branch, and with reference to the extension, the branch would naturally be regarded and spoken of as the main line. If not done in all cases it is somewhat difficult to find any reason for it.
Again, by an ordinance passed March 10, 1890, granting leave to change the motive power on the Garden street branch, the right was given to operate that branch by electric power "during the term of its present grant of said Garden street branch." The "present grant" for the Garden street branch was that which was granted in March, 1880, which was to terminate in twenty-five years, or March 22, 1905. Here was a clear recognition of the time when that grant expired, and there had been no ordinance or resolution of the council, since
On the 30th of March, 1891, the right was granted to construct and operate a second or additional track upon Central avenue (Garden street) from the east line of Willson avenue to the Cleveland & Pittsburg Railroad tracks. It was provided in that ordinance that the right therein granted should be for and until the expiration of the grants for the said company's main line. Here again the question arises, What was the meaning of the expression "main line" as used in this connection? The ordinance allowed a second or additional track in a street in which the company then had the right to use, and was using, a single track. So far as that extended grant was concerned, the main line was the rest of the Garden street branch, and the same observations that we have made heretofore in regard to the main line are operative here.
It cannot be possible that it was intended to limit the right to use the second or additional track, in the portion of the street mentioned, to a different time than that which existed with relation to the first track laid down by the company in the same street. Of course, the two grants were meant to terminate at the same time.
At this time the grant to the company's Euclid avenue line had been extended so that it did not expire until July 13, 1913. Can it be supposed that the council intended that this short length of road, in which a second or additional track was to be laid, was to be operated with two tracks until 1905 and after that with one track until 1913? We think such a construction is not permissible, and that what is meant by the language, "main line,” in that ordinance, means the line which is the main line with reference to the extension therein granted; namely, the Garden street branch, and not the Euclid avenue line.
The ordinance of the 20th of April, 1891, is somewhat important. It granted the East Cleveland Railroad Company permission to lay an additional or second track in Quincy street, from New street to Woodland Hills avenue. That street at the point indicated is part of the Garden street branch, and, as compared with the rest of the Garden street branch, is a very small portion
thereof, and the ordinance only grants the right to lay an additional track. The right granted was, by the terms of § 3, to "be valid until the expiration of the grants for said company's tracks on said Quincy street, east of Lincoln avenue, to wit, July 13, 1913."
It is said that the council, in such ordinance, expressly authorizes the continuation of the operation of this Central avenue (Garden street) extension until July 13, 1913, the date of the expiration of the Euclid avenue line of the company. But the language used in this ordinance as to the time of the expiration of the grant for the company's tracks on Quincy street, east of Lincoln avenue, is a clear mistake of fact. The grant, it will be observed, is not in terms an extension to July 13, 1913. The reference to that date is but the expression of an opinion that the date named is the true time of the termination of the Quincy street grants. It is not a grant extending to that date, unless the previous grants are limited to that time. Now, on April 20, 1891, the grants on Quincy street, east of Lincoln avenue, in fact terminated either in 1904 or 1905, depending upon the construction of the language of the original grant in Quincy street, made in February, 1885. That was a grant which was to expire with the termination of the grant for the main line. For the reasons already given we think that that language meant the Garden street branch, which was the main line as to that extension, and that it, therefore, expired in 1905, March 22. There was no subsequent legislation which extended that grant beyond that time.
But if it be assumed that the grant for the company's tracks on Quincy street, east of Lincoln avenue, was to terminate with the grant for the Euclid avenue line as the main line, it must be recollected that that grant on Quincy street was made February 9, 1885, to the Garden street branch, and at that time the grant to the Euclid avenue line terminated in September, 1904. The grant of 1885 was not made to terminate with the grant for the main line, as that main line might thereafter be extended, but it referred to that grant as it then existed, and it was to be measured by such existing grant, and not by any subsequent extension which might be granted to the Euclid avenue line.
Nor do we think the time for the termination of the Garden street branch was in any degree affected by the consolidation of the various roads in 1893. The communication from the railway company, through its
vice president, May 22, 1893, states distinctly that it "does not claim any rights greater than the constituent companies forming the organization, and that it intends to obey all ordinances to which each and all of the constituent companies were subject." Its intention to issue transfer checks, so as to have a continuous ride for one fare, gave no greater rights to the company than it theretofore had, nor did the resolution of the council, consenting to the consolidation on condition that but one fare should be charged for a continuous ride, give any greater rights to the consolidated company than each of the constituent companies had theretofore enjoyed. The consolidation does not require, in order to comply with the conditions specified in the resolution consenting to the consolidation, that the consolidated companies should be permitted to operate until the expiration of the longest grant to any of the companies. At the expiration of the grant to the Garden street branch the operation of that road might terminate, while the operation of the rest of the consolidated roads could go on perfectly well. To hold that, by virtue of the consolidation, upon the conditions stated, there was an implied extension of the grant to the Garden street branch of at least eight years, is to violate the rules of construction above referred to in regard to grants of this nature.
It is also strongly urged by the complainant that the ordinance passed soon after the consolidation ordinance, viz., the ordinance of July 17, 1893, not only imposed additional burdens on the consolidated company, but that the ordinance relates to a portion of the line originally constructed as part of the Garden street branch, and that it also required the operation of all the Garden street cars over these tracks, so that the council legislated as to the operation of the tracks upon Garden street and provided that such operation should continue until July 13, 1913. It is true the ordinance provided that the grant therein made should be limited to the above date, and there were certain conditions attached to the making of the grant, but it is quite plain to us that the ordinance could not be read as thereby extending the time for the termination of the Garden street branch without a most violent implication, based upon a very small foundation. This is made clear when it is seen that the streets through which the ordinance provides for extending the double track railroad formed no part of the line originally constructed as part of the Garden street branch. The
The chief importance of the various ordinances and resolutions for the extension of the Garden street branch, coupled with the user of the tracks of the Euclid avenue line by the branch road from Erie street west to the public square, and providing for but one fare over the whole road, is to strength
latter road was permitted to use, for a left it to such vague and uncertain preshort distance, the tracks of the Euclid sumptions. avenue line from a point at the junction of Brownell street (subsequently made Erie street) with Prospect street, west to the public square. But that portion of the track of the Euclid avenue line was never part of the line originally constructed for the Garden street branch, nor did it become such because subsequently the branchen, if possible, the contention of complainroad was permitted to use it for the passage of its cars to the public square. It is quite clear, therefore, that the limitation of the time for the termination of the grant provided for in the 6th section of the ordinance was not also an extension of the time for the termination of the separate grant to the Garden street branch from 1905 to 1913.
The same may be said of the ordinance of February 19, 1894, extending the tracks in Willson avenue. While the council consented to the extension by the complainant and the Cleveland City Railroad Company of the line of railway in Willson avenue, and also to the operation of that line in connection with other lines of the consolidated company, which included the Garden street branch, yet it cannot be held that there arose from that ordinance, when ac
ant that such branch has always been treated by the city and the company as a mere extension of the Euclid avenue line, and to be operated in connection with it, so that a grant extending the time of the termination of the latter line included thereby the Garden street branch. We think the contention is not justified by the facts. The whole history of the branch line shows differently. Even in the important matter of a change of motive, power, the Euclid avenue line was provided for in 1888 and 1889, while there was a separate and distinct provision made for the Garden street branch in 1890, and a statement therein made that the permission was granted to the Garden street branch during the term of the present grant to said branch.
A careful examination of the whole rec
ord leads us to the opinion that there is no error therein so far as the complainant's appeal is concerned, and the decree upon its appeal is affirmed.
cepted by the company, a contract which should extend the time on all of the roads until the expiration of the grant contained in that ordinance, July 1, 1914. By such means an implied extension of time, affecting over 200 miles of track, as is stated, Upon the appeal of the defendants, we would be accomplished by making these think little need be said. The defendants conditions in regard to the Willson avenue insist that, upon the termination of the grant a substitute for a grant, in plain grant to the Garden street branch, the rails, language, affecting the Garden street poles, and other appliances for operating branch. On the contrary, we think that the that road, and then remaining on the varieffect of that ordinance was simply to make ous streets, became the property of the it necessary for the Garden street branch city; or, at least, that the city had the and the other roads also, to comply with the right to take possession of the streets and conditions set forth in the ordinance until of the rails, tracks, etc., therein existing. the expiration of their respective and ex- We agree with the court below in the opinisting grants, but that ordinance did not ion that the title to the property remains thereby extend the various other railroad in the railroad company which had been grants by implication. There is no such operating the road, and we are of opinion connection between the various roads as that the Forest City Railway Company had to make it necessary, in order to operate no rights in the streets, so far as to affect one, that all the others should be in opera- the right of the complainant to its property tion as a unit, and as comprehending one then existing in such streets. How that indivisible system. There is nothing in property may be disposed of is not now a this record which shows any difficulty what-matter before this court. We only hold that ever in operating the Garden street branch the defendant company cannot avail itself as separate from the rest of the so-called system, or in operating that system separate from the branch. If the council had intended to extend the time of the termination of the various grants to these railroads it surely would have said so, and not
of the provisions of the ordinance of January 11, 1904, so far as taking possession of the property of the complainant is concerned.
The decree upon the defendants' appeal is also affirmed.
LOUIS KANN, Sigmund Kann, and Myer APPEALS from the Court of Appeals for
1.andlord and tenant-forfeiture of leaseequitable relief.
1. A court of equity cannot, in the exercise of its general power to relieve from a forfeiture, endow a tenant with the right to create, at the risk of the owner, a contest involving the validity of an irredeemable tax sale, for the purpose of giving such tenant the right, if the tax title be held invalid, to pay the taxes and thus be relieved of a forfeiture for his breach of his covenant to pay such taxes.
Landlord and tenant-forfeiture of leaseequitable relief-accident or mistake.
2. Equity will not relieve from the forfeiture of a lease for the breach by a tenant of his covenant to pay the taxes on any theory that his default was due to the misleading conduct of the landlord or to his own temporary oversight, where the testimony conclusively demonstrates the tenant's gross negligence. Landlord and tenant-forfeiture of leaseequitable relief-accident or mistake.
3. Relief from a forfeiture of a lease, incurred by a tenant because of his breach of his covenant to pay the taxes, cannot be given by a court of equity on the ground of accident or mistake, where the relief sought cannot be afforded without subjecting the lessor to the peril of contesting the validity of an outstanding prima facie ir
redeemable tax title.
Landlord and tenant-forfeiture of lease equitable relief-fraud.
4. The purchase of an irredeemable tax title with a view to securing a lease of the property is not such a fraud on the tenant in possession as entitles him to relief in equity from a forfeiture of the lease for a breach of his covenant to pay the taxes. Landlord and tenant-forfeiture of lease equitable relief-fraud.
5. The act of the landlord in accepting as a new tenant the purchaser of an irredeemable tax title to the property is not such a fraud on the tenant in possession as entitles him to relief in equity from a forfeiture of the lease for his breach of his covenant to pay the taxes,-especially where the landlord offered to condone the forfeiture if the tenant would commence proceedings to have the outstanding tax title declared invalid, and would secure the landlord from loss in the event that such title should be sustained, which offer the
[Nos. 16, 17.]
of Columbia to review a decree which affirmed a decree of the Supreme Court of the District adjudging a tax sale to be void and relieving the tenant from a forfeiture of the lease for his breach of his covenant to pay the taxes. Reversed with directions to dismiss the bill for want of equity.
See same case below, 25 App. D. C. 182.
Messrs. R. Ross Perry, R. Ross Perry, Jr., and E. S. Theall for appellants in No. 17. Messrs. J. J. Darlington and Leon Tobriner for appellee.
Mr. Justice White delivered the opinion of the court:
These appeals are from a decree of the court of appeals of the District of Columbia, which adjudged that a tax sale of certain real estate in the District was void, and which relieved the lessee of the premises from a threatened forfeiture of the lease, asserted to have resulted from the failure of the tenant to pay the taxes to enforce which the tax sale was made. The complainant in the original bill was Caroline King, the lessee of the premises, and the defendants were Marianne A. B. Kennedy (the lessor) and Louis Kann, Sigmund Kann, and Myer Cohen, whom it was alleged claimed to be either the equitable or legal owners of the tax title in question. The defendant Kennedy died the day the bill was filed, and Henry Randall Webb, as her executor, and Maria G. Dewey, as her heir at law, were substituted as defendants.
The lessor prosccuted an appeal from an order granting an injunction pendente lite, restraining him, among other things, from prosecuting landlord and tenant proceedings, based upon a right of re-entry arising from the alleged forfeiture caused by the nonpayment of taxes and tax sale referred to in the bill. The court of appeals, on the face of the bill, sustained the order of injunction. 21 D. C. App. 141. The cause, having been put at issue by separate answers asserting the right of the lessor to forfeit and the right of the holders of the tax title, was tried on the merits and was decided in favor of the complainant. It was taken to the court of appeals on behalf of all the defendants except Mrs. Dewey, and all the defendants except Mrs. Dewey, and the decree of the lower court, adjudging the tax sale to be void and relieving from the alleged forfeiture, was affirmed. 25 D. C.
Argued March 8, 9, 1906. Decided January App. 182.
The origin of the controversy and the
facts, as to which there is no dispute, are of King in 1897 it was the habit of Mrs. as follows:
first instalment of taxes which fell due after the death of her husband, until the summer of 1900, a period of more than two and a-half years, no taxes whatever were paid upon the leased premises. In the interval the following taxes became overdue:
Second instalment of tax for 1898, due in May, 1898;
Kennedy, when the tax on the Market space The property in controversy, No. 715 store was about to become payable, to reMarket space, in the city of Washington, quest the lessee to send her a check for the was owned by and assessed for taxation amount of the tax, and on the receipt therein the name of Maria T. Gillis at the time of the tax was paid either by Mrs. Kennedy of her death, intestate, in 1871. Marianne or her agent. This course was not, howA. B. Kennedy, as the heir at law of Mrs. ever, followed, after the death of King. Gillis, took possession of the property as The first instalment of taxes which fell owner, without any administration upon the due in November, 1897, soon after the estate of Mrs. Gillis. After the death of death of King, was directly discharged by Mrs. Gillis, continuously up to the making Mrs. King, who took and retained the reof the tax sale hereafter referred to, the ceipt. This was done at the request of property remained on the public records Mrs. Kennedy, who called at the Market and continued to be assessed in the name space store about Christmas, 1897, and of Mrs. Gillis, except that a small portion asked that the tax be paid. From that time of the rear end of the premises was, at a no request was made by the lessor to the time not shown, but prior to the tax sale tenant, as the taxes fell due, to send her before referred to, assessed for taxation in the money to enable her to pay them, nor is the name of Mrs. Kennedy and her husband. it shown that any express demands were In 1890, Mrs. Kennedy leased in writing made that the tenant pay the taxes dithe premises to Henry King, Jr., the hus-rectly. From the time of the payment, by band of complainant, for use, as a fancy the tenant, near the close of 1897, of the dry goods store, and by several extensions the period of expiration of this lease came to be October 1, 1908. By the lease the | lessee, his executors and administrators or assigns, were bound, "during the continuance and until the end and determination of the said term for which the said premises are demised, to pay or cause to be paid in each and every year thereof the taxes, general and special, of every character and description, assessed against and levied upon. the said premises by the authorities of the general or local government." The right to terminate the lease and to re-enter upon the breach of any of the conditions was stipulated. When the lease was made, King, the lessee, was engaged in the dry goods business in a store on Seventh street, not far from the Market space store. Under the lease he entered into possession of the Market space store and carried on, in addition, business there until his death on August 18, 1897. Sanctioned by an order of the probate court, an assignment of the lease covering the store on Market space was made to Caroline King, the widow. The business was thereafter conducted for a time solely in her name. She did not, however, actively supervise it. Her elder son, Harry King, who had been, during the latter years of his father's life, in general charge of the business for his father, remained in that capacity, after the death of the father, as the representative of his mother, assisted at the Market space store, in a subordinate capacity, by a brother, Joseph King, who, during the father's life, had also, in a subordinate capacity, been engaged in business at that place. From the making of the lease in 1890 to the death
First instalment of tax for 1899, due in November, 1898;
Second instalment of tax for 1899, due in May, 1899;
First instalment of tax for 1900, due in November, 1899; and,
Second instalment of tax for 1900, due in May, 1900.
On July 24, 1900, the two instalments of the tax for 1900, due in November, 1899, and May, 1900, with accrued penalties, were paid by the tenant under the following circumstances: As testified by Harry King, he being concerned over past-due taxes owing on a large number of tracts of real estate owned by the estate of his father, it "occurred" to him to have the "bookkeeper go down to the tax office and inquire for the tax bills of 715 Market space." The bookkeeper went and subsequently reported that the two instalments for 1900 were due, and Harry King paid them. The nature of the inquiry made by the bookkeeper at the tax office, and what occurred, is the subject of controversy, and we pretermit its consideration. Nearly a year after, in May, 1901, the two instalments of taxes for 1899, due in November, 1898, and May, 1899, with interest and penalties, along with the taxes for 1901, were paid by the tenant. The payment of the 1899 taxes was by way of redemption of a sale of the property for