Alper v. Tormey

The action was brought to restrain defendants from interfering with plaintiffs' use and enjoyment of certain railroad spur tracks.

These spur tracks were connected with and constituted an important part of a large meat packing plant owned and operated by the Union Stock Yard Company, situated at Rodeo, Contra Costa county.

Two tracks were built, both running — one easterly and the other westerly — from the buildings of the stockyard company to the main lines of the Southern Pacific Railroad Company.

The east track, the only one in controversy here, was constructed some time prior to the other.

The land upon which said buildings were located was originally bought by one Wheeler, and there is evidence justifying the inference that Tormey sold to him the right of way for the east spur track.

Subsequently Wheeler conveyed all his rights to the said Union Stock Yard Company, which was incorporated in 1890, and Tormey became president of the corporation.

As such president, on behalf of said corporation, he executed leases and a mortgage of the corporation's property including "all the buildings . . . and appurtenances now erected or in the process of erection upon said blocks . . . and all and every railroad tracks and railroad superstructures which have heretofore and may hereafter be built by the party of the first part, leading from the line of the track of the Northern Railway Company now operated by the Southern Pacific Company and used and intended to be used in connection with the improvements and machinery in said blocks or any or either of them."

In the year 1895 the corporation was adjudged an insolvent. *Page 10

Tormey, who was the largest creditor, was naturally interested in getting as much as possible for the property, and for that purpose he had a map made of it and he added the east spur track because it did not appear on the official map.

He caused blue-prints of this map to be made and circulated for the purpose of securing purchasers for the property.

Judgment was rendered for plaintiffs against the defendants.

The defendant Tormey appealed from said judgment and from the order denying his motion for a new trial.

It is not disputed that plaintiffs acquired whatever rights the said corporation had in and to the said east spur track.