xt70zp3vt865_199 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 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. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Dingus, D.C. v. Elkhorn and Beaver Valley Railway Company [Part II] text Dingus, D.C. v. Elkhorn and Beaver Valley Railway Company [Part II] 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_21/Folder_2/1741.pdf 1911-1919 1919 1911-1919 section false xt70zp3vt865_199 xt70zp3vt865 ' E:E"
At : g
_‘ ' ‘ mmwcm com? OF APPEALS. g
f Elkhorn Beaver Valley Railway 00., Appellant. 1‘
5 vs . STATEMNT . it
‘ g D. C. Dingus, . Appellee. i
j l. The name of the appellant herein is Elkhorn é:
'\ 3 Beaver Valley Reilwey Company. ,
E } ‘ 2;/ The name of the appellee'herein is D. C. Dingus. 1'
f. 3. The judgment herein appealed from was rendered t
‘ at the septemher Term of the Floyd Circuit Court; and is y
A found copied on pages 51 and 52 of the record. E“
K 4. $he agpeel herein having been granted by the {I
k Court below” no swhmons or warning order is necessary or !_
g desired. . g:
‘ ‘ d 5. The names and addresses of the attorneys for 2
t appellant herein are . ' Ii
, 3| Worthington, Cochran & Browningé Heyeville, Ry.
X Harkins & Harkins, Prestonsbnrg, Ky; I ‘J
"" 6. The name and address of the attorney for "
i apgellee herein is .
‘ I William Dingus, Prestonsburg, Ky. ' }‘
.‘ : /‘.
' t \ y/ .
/ ‘
t ' / .
,/»/ V ’
t ' -. , ‘7f7".7‘7r""“’“’"l‘—__"'””7"" 7'i“‘““'” 7:;“ii.'7’ if r”ijf;v;m;47'?f*’*"‘71?¢e€??¥;iZTTle¢ss;~gzrrcfléeyhnfiyu; vffifig

 FLOYD CIRCUlT COURT
\
D. c. DINGUS, PLAINTIFF,
AGAINST CARBON COPY TRANSCRIPT
ELKHORN 8c BEAVER VALLEY
RAILWAY COMPANY, ETC., DEFENDANT.

 O - ‘ O
IEDEX
9etition 1
Deed~~D. C. Dingus to E. & B. V. By. 00. 7
Summons 12
Return on Summons 12
Summons 13
Return on Summons 13
Filing Motion to Make Definite and Certain 14
Motion to Maka Definite and Certain 14
Sustaining Said Motion ’ 15
wiling Amended Petition . 16
Amended Petition 16 ‘
Eap 23
Order @iling motions 24
Motion to Strike 24
fiction to Elect 26
Sustaining Egi'ot ion to estrike 26
Overruling fiction to Elect 27
Setting for Special Term 2?
Filing Answer 27
Answer I 28
Filing Reply 37
Reply ' 38
Traversing Renly 42
Order of Continuance 42
Agreed Statement of Facts ' 43
Ordering Caae Reported 44

 O Q '0
a

Prooeedifigs of Trial 2 44
Filing Photographs and Elue Prints 45

'mMmmm 51
not ion to Instruct 52
Motion to Direct 53

2 Instnuctions 54
?iling Eotion and Grounds 55
Nation for New Trial 56
Grounds for New Trial 57
Affidavit a? Joseph D. Uarkins 59 I
Overruling fiction and Grounds 60
Enlarging Time to Prepare and Vila Bill 61
Order Tendering Bill I 62
Order F’iling 3111 - 63
BILL 03? .BKCEPTIONS

. Testimony of D. C. Dingus ’ 64
Testimony of Clayborne ?. Bailey 120 '
Tantimony of R. L. 0. May 2 146

fiestimony of H. HaAnespie 166

Testimony of Isaac Stephens ‘ 179

Testimony of 5am Stephens 189

Testimony of D. C. Dingua. (Recalled) 198

Motion to Instnuct ’ 201 -
Testimony of P. D. Davis 201

Testimony of J. W. Gleason 209 I

 o , o o
Testimony of Hanoford Lemasters 224
Testimony of J. W. Gleason (Recalled) 228
fiction to Direct 231
Instructions ‘ 232
Verdict I 334 ‘
Judgment » 235
fiction for Raw Trial 236
Grounds for New Trial A 237
Affidavit of Joseph :2. Harkina 233
Certificates to Bill 240
Schedule 242
Clerk's Certificate ’ 243

 O '0 ‘.
yLOYD CIRCUIT COURT.
D. c. mucus. PLAIHTIW,

VS. PETITION
ELKHORH & BEAVER VALLEY KY. 00., DEVENDANP. .

The plaintiff says that the defendant is a corpor-
ation, incorporated under the laws of the State of Ken—
tucky, and as such has power and authority to contract
and be contracted with, to sue and re sued, and to own
and operate trains for freight and passengers on its
railroad in the vicinity of the land owned by him, and
that he is the owner of lands and lots adjacent to lands
conveyed to the defendant hereinafter set out.

Plaintiff states that heretofore, to-wit. on the
14th day of July, 1911, defendant, in order to construct,
build and equip its railway, desired to purchase and pro-
cure the strip of land hereinafter described as a right—
of—way for its railway, in order to construct and operate
its railway from Beaver Creek, in Floyd County, Kentucky.
to Wayland, Vloyd county, Kentucky, and over the land
hereinafter described, and that for and in consideration
’of the premises and agreement of the defendant that it
(would, so soon as its road was built and cars running
athereon, would build a depot on the strip of land convey-

.. I - 1 - V

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ed, andmake a public stopping place upon the land convey—
ed, most convenient for the use of the general public.
and for the use of the adjacent lands and lots out of which
said strip was conveyed, and would build and complete
a depot and have a public stopping place on said strip
conveyed. and that it would continue said depot and pub-
lic stopping place as long as said road was operated
by it. or by its successors or assigns. and for the
use of this plaintiff, his family and persons to whom
I he might sell said adjacent lots or land, and all other I
persons who might have business at said depot. or desire
to use, purchase or have any business upon the same;
that for the aforesaid considerations that he trans—
ferred and conveyed to the said defendant the following
described lot of land:
BEGINNING atvstation 310 19 of thecenter line
of Elkhorn and Beaver Valley Railway, in line of
E. L. Dingus and D. C. Dingus; thence with said
line, N. 24 30' W. to a point thirty (30) feet from
at right angles to said center line; thence west- ‘
wardly thirty (30) feet from and parallel to said
center line to a ppint opposite station 312 50;
thence at right angles northwardly 50 feet; thence
' westwardly eighty (80) feet from and parallel with
said center line to a point opposite station 315;
thence at right angles southwardly fifty (50) feet;
thence westwardly thirty (30) feet from and parallel
- 9 - . H

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to said center line to the line of H. H. Dingus; ‘
thence with said line. S. 30 30' E., passing throfigh
station 316, 84 ---- to a point thirty (go) feet
from at right angles to said center line; thence -
eastwardly thirty (30) feet from and parallel to 1
said.oenter center line to a poitn in the line of
E. L. Dingus; tmthence with said line, N. 24 f
30‘ W. to the point of beginning, sndcontaining VT
one and two-tenths (L.2) acres, more or less. being .
six hundred sixty—five (665) feet on saidcenter line,
and also a road thirty (30) feet wide from the de—
pot to the county road nearby.
The plaintiff further says that a deed for said
land was executed and acknowledged by him and his wife
and accepted by the defendants, and recorded in Deed
Book 32, page 631. Floyd County Court Clerk's office;
that in consideration of said conveyance the defend-
ant promised and agreed to make a public depot on the
said tract of land, around which and adjacent thereto
there were a number of lots of land laid off, the prop»
g arty of the plaintiff, and it was the intention and pur- .
g pose of the plaintiff to sell the whole of said lot, a
E and several of said lots were sold to divers and sundry
% persons after the agreement hereinbefbre mentioned was , ”
3 made; that the lots that were sold with the understand-
’ ing that there was to be a depot established at the town
. -3-

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which was then understood to be called "Dingustown,"
but new is called "Dinwood;” and it was the understand-
ing and agreement with this plaintiff and defendant that
said depot. as hereinbefore stated. was to be establish-
ed and maintained at said place, and by the failure of ,
;the defendants to comply with its agreement, as here-
iinbefore set out, that quite a number of the persons
Eta whom he had conveyed lots. on aacount of this plain-
gtiff to comply with agreements hereinbefore mentioned,
ithat he has had to take back a number of said lots
éfrom the parties to whom they were sold, and have the
ésame re-conveyed to him with great loss, and that he
lhes failed to sell the remainder of said lots on the
_account of the failure of this defendant to comply
with its conmract. as hereinbefore stated, in the e-
redtion andmaintainance of a Repot at said place, and
that he is further damaged by the loss of the use of
the land adjacent to the strip hereinbefore described ’
as conveyed by the reason of having sold several lots
to parties who are located upon some and occupying the
same so that it deprives him from the free use and 00- '
‘ cupancy of the residue of the land for farming pur-
poses.
The plaintiff further states that the defendant
has long since built its railroad from Beaver Creek
to Wayland, in Floyd County, Kentucky, and through and .
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across said strip of land, and has been new operating
its trains about one year upon said tract to and from
Beaver Creek. Floyd County, Kentucky, to Wayland, Floyd
County, Kentucky, and over and through the strip of land
hereinbefore mentioned, and described as conveyed;
that this plaintiff has demanded of defendant that it
comply with its eeid agreement, as aforesaid, and erect
said depot as aforesaid, but that the defendant has
failed andrefused to erect or maintain said public de-
pot. or to make or erect any depot at said place upon
said strip 0! inset of land at Dingustown, now called
Dinwood. _

Plaintiff further states that a depot at said
place upon said strip of land would have been, and is.
of great value to the land of these plaintiffs. out
of which said strip was conveyed. to—wit: 0f the value
of more than seven thousand dollars. ($7.000.00,) and
that said strip of landconveyed by this plaintiff to
the defendant was, and is, of great value, to.wit:
Three thousand dollars. ($3.000.00.) making in all the
sum of ten thousand dollars, ($10,000.00.)

Plaintiff further states that wdthout said volun~
bury conveyance to the defendant, it would have been
compelled to haveinstituted proceedings in condemnation
against this plaintiff in order to acquire the same,
and that this plaintiff would and could have received
from the defendant in such proceedings more than the

z

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sum of ten thousand dollars ($10,000.00) for the strip
which this plaintiff conveyed to the defendant, to-
gether with the damage to the remaining land of this
plaintiff, which is adjacent to 3316 strip. and out of
which said strip was conveyed, and by defendant oper-
ating trans thereon without making a public atopping
I place and depot as hereinbefore mentioned, as defendant
promised and agreed to do, all.of which it has neglect- .
ed and refused to do, to the damage of this plaintiff
in the sum of ten thOusand dollars ($10,000.00;) and
defendant further states that by reason of the breech
of the defendant's agreement with this plaintiff, as
aforesaid, and itediaregard and violation of its con-
tract with this plaintiff, as aforesaid, this plaintiff
is no longer bound by said conveyance made by him as I
aforesaid, and that defendant has no right to retain
and erfloy the aforesaid land and conveyance. without
making Just compensation to this plaintifftherefor.
A certified copy of eaiddeed. of date 14th day
of July. 1911, and recorded in Deed Book No. 32, page
631, is here referred to. filed and made part hereof,
marked "A.” '
WHEREFORE. plaintiff prays Judgment against the
defendant in the sum of ten thousand dollars ($10,000.00)
and for cost herein expended. and for all proper and
appropriate relief.
DAVID C. DINGUS
BY WILLIAM DINGUS. Atty.
- 6 -

 STATES 073’ KEEWCKY .
COUESFI‘Y OF‘ ‘fi‘IDYD. . . . . . . . . .

The plaintiff. David C. Dingua, says that the
statements of the foregoing petition are true. as he
believes. I .

D. C. DILJGUS.

Sunscribed and sworn to before me by David C.

Dingus, this the 27" £234! of April, 1915.
SA??? PORTER, 0. mac.
Filed April 21, 1915.
SAM PORTER, 8.33.8. C.
BY Jim H. SPRADLIN. 0.19.6.0.

Here followi; copy of dead from David C. 131mm8
and wife to Elkhorn and Beaver Valley Railway Company.
filed with and as part 55 foregoing petition. which
is in words and figures as follows: ‘

D. B. #32-631

THIS DEED between DAVID C. DINGUS AND BETHSHEBA

DINGUS. his wife. parties of the first part. and ELK-
-7-

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HORN AND BEAVER VALLEY RAILWKV COMPANY, a corporation-
created and existing under the laws of the State of '
Kertucky. party of the second part.

wwweenrn: That the said parties of the first
part, in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration in hand paid. -
the receipt whereof is hereby acknowledged. do hereby
sell, grant and convey to the party of the second part,
its successors and assigns. the following property,
to-wit: All that certain tract. parcel or strip of
land situate on Right Beaver Creek, in Floyd County,
Kentucky, and bounded as follows:

Broimmxc at station 310 19 of the cancer dine
of Elkhorn and Beaver Valley Railway, in line of E. L.
Dingus and D. C. Dingue; thence with said line, N. y
24 30' W. to a point thirty (30) feet from at right
angles to said center line; thence westwardly thirty
(30) feet from and parallel to said center line to a

V point opposite station 312 50; thence at right angles
northwardly fifty (50) feet; thence westwardly eighty
(80) feet from and parallel with said center line to .
a point opeosite station 315; thence at right angles
eouthwardly fifty (50) feet; thence westwardly thirty
(30) feet from and parallel to said center line to the
line of H. H. Dingus; thence with said line, S. 30 30'
E., passing through station 316 84, to a point thirty
-8-

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(30)fset erom at right angles to said center line;
thence eastwardly thirty (30) feet from and parallel
to said center center line_to a pointin the line of
E. L. Dingus; ghggg thorns with said line, N. 24 30'

W. to the pointof beginning and containing one and two-
tenths (1.2) acres, more or less, being six hundred
sixty-five (665) feet on said center line. and also a
road thirty (30) feet wide from the depot to the coun~
]ty road nearby. The said Elkhorn and Beaver Valley
Railway agrees to build a depot on the strip of land
herein conveyed. The land herein conveyed being a
part of the same land conveyed to the parties of the
first part by James H. Dingus and wife. by deed dated
Uaroh 18. 1902, which deed is recorded in Deed Bookao.
4, page 154, office of the county court Clerk of Floyd
V County, Kentucky. It is understood that the forego-
ing strip or parcel of land is purchased for the pur— p
pose of construction and operating thereon a standard
guage railroad and facilities appurtenant thereto.

To HAVE AND TO HOLD the same with all the appur—
tenances thereon, to the said party of the second part,
its successors and assigns forever, free from damages
resulting from the prudent construction and operation
of said railroad andfacilities appurtenant thereto.
with covenant of General Warranty.

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EN 'ITESTIIEO‘FW WHEREOF, the parties of the first
part hereto subscribe their names, this the 14" day d‘
July, 1911.

DAVIE C. DINGUS
Witnesses:
BATHSHRBA DINGUS.
STATE 0‘? KENYUCKY.
(EQUNTY OT? T‘LOYD.

I. E. 3?. May, a Notary Public in and for the
county and state afornsaid, do certify that the fore-
going instrument from David C. Bingus ahd Bethaheba
Dingus to Elkhorn and Beaver valley Railway Company,
of date the 14" day of July, 1911. was this day pro»
duced before me in said county by the said David C. V
Dingus and Bathsheha Dingus, known to me to be the.
parties grantors therein named and signing game, and
by them.and.each of them acknowledged before me.

fly commission as Notary Public expires on the
14" day of Jan.. 191&.

GIVEN under my hand, this 14” day of July, 1911.

H. F. FAV. ‘
Notary Public, ?loyd County,
Kentucky.
STATE OF thM.
COUNTY 034‘ FIDYI). . . . .
I. J. E. Harris, clerk of the county court for
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the county and state aforesaid. certify that the fore-
going instrument was on the 9th day of October, 1911,
lodged for record; whereuoon the same with the forego-
ing and this certificate hath been duly recorded in
my office.

WITHEES my hand. this 9th day-of October, 1911.

J. N. HARRIS, Clerk
BY J. P. HARRIS, JR. D.C.
STATE OF KEHTUCEQP',
. COUNTY OF 710?D...........Sct.

l, J. E. Harris, clerk of the county court for
the county and state aforesaid. do hereby certify that
the above and foregoing three (3) pages of typowrittaa
matter is a true, correct and couplets copy of the ,
deed from David C. Dingus and wife to the Elkharn and \
Beaver Valley Railway Company. of date theIAth day of
July, 1911, recorded in Dead Rook No. 32, page 631,
as shown by the records of my office.

GIVEE under my hand, this alst day of April,

1915.
' J. N. HARRIS, Clerk.
To J. N. Karrie, clerk, for certified
copy $1.00. (Paid by plaintiff.)
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THE COZEZYQLWEALTH 0"" KEHTUCWV
TO THE SlfiIRIFF OF BOYD COURTY:

YOU ARE cmmfiAHDED To SUMfiOH Elkhorn and Beaver I
Valley Railway Company to answer in twenty days after
the service of this summons, a petition filed against
it in the Floyd Circuit Court by D. C. Dingue, and.warn
it that upon its failure to answer, the petition will
be taken for confessed, or it will he proceeded against
for contempt, and you will make due return of this
summons within twenty days after the service to the
Clerk's office of said court.

GIVEH undor my hand as clerk of said court, this
21 day of April. 1915. L

gém garter, Clerk
}$By Jim R. Spradlin, D.C.
OFFIQER'S RETURHQ "Executing by delivering a true
copy of the within summons to
J. W. E. Stewart, agent Elkhorn
Beaver Valley Railway Company. ‘
4-24-15.
J. E. GEIGER, S. B. C.
TOM GALLAHER. D. S."
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Tim COMhECJk-WEALTH 0T? KENTUGKY. .
so TH}?! sesame or MWRFZNCE coumv;
You are commanded to summon Elkhorn & Beaver
Valley Railway Company to answer in twenty days after
the service of this summons, a petition filed against ‘
it in the Vloyd Circuit Court, by D. C. Eingus, and
warn it that upon its failure to answer, the petition
. will be teken for confessed, or it will be proceeded
against for contempt, and you will make due return of
this summons within twenty days after the service to
the clerk's office ofsaid court.
GIVEN under my hand as clerk of said court, this
27" day of April. 1915.
SAM PORTER, Clerk.
OFFICER'S RETURN: "Executed on the Elkhorn & Beaver
Valley Railway Co. by delivering
a true copy of the within summons
. to F. T. D. Wallace, process agent
of record for the said Elkhorn &
Beaver Valley Railway Co., This I
27 day of April, 1915. ‘
R. A. STOIm.
Sheriff of Lawrence Co.
-13-

 ORDERS. FLDYD CIRCUIT COURT.
MAY Tmm, MAY mm, 1915.
D. C. DINGUS, PLAINTIFF.
VS.
.ELKHORH & BEAVER VALLEY
M; LWAY COMPARE} DEWWDMH.
Defendant entered motion for rule aéyinst plain-
tiff tomako definite and certain the averments of his
petition
FLOYD CIRCUIT COURT '
D. C. DINGUS, PLAINTIFF,
AGAINST MOTION
ELKHORN & BEAVER VALLEY
RAIBWKY COMPANY. DEFENDANT.
The defendant enters motion for rile against tlre
plaintiff herein to make definite and certain the :-
verments of the petition herein.
ELKHORN & BEAVER VALLEY RAILWAY CO.
BY HARKINS & HARKINS. Attorneys.
-14-

 Filed May 17. 1915.
SAM PORTER, 0320.0.
ORMERS. FLOYD CIRCUIT COURT.
MAY—mm: TURN, TU':TE 10, 19152:}
D. C. DINGUS, PLAIMIW,
VS. ORDER
ELK HORN ck F§AWR VALLEY
RAILWAY COMPA'LW , DEWEDANT.
This cause having been submitted and heard upon
the motion of the defendant herein for rule against
the plaintiff to make definite and certain the aver-
merits of the petition herein, and the Kourt being
sufficiently advised sustains said motion. and the
plaintiff is given leave to amend said petition.
ORDERS. FLOYD CIRCUIT COURT.
MAY—JUKE TERM. JUNE 11, 1915.

 D. C. DINGU’EB, PLAIM‘IWF,

‘ISC
ELK HOP. :11 8c BLEA‘;‘?«:R VALLEY
RAILWAY COMPAEW . DEWWDANT.

Plaintiff pro duced and filed amendad petition
herein, and by agreement defendant is given until July
Rules, 1915, to file answer to the same.

WLOYD CIRCUIT COURT
D. C. DINGUS, PLAINTITWF,
VS. MEENDED PET ITIO’vI .

ELKHORN 81c BEA‘QEB VALLEY
RAILWAY CO. , DEFENDANT.

The plaintiff, D. C. Dingua, by leave of Court,
amends hispetition herein, and for amend ment says
that in addition to the statements, averments and
pleadings set out in his original petition, that in
consideration of the conveyances by him to the defend-
ant that said defendant promised, contracted and a-
.greed to build and maintain a. depot on the tract of

-16-

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land mentioned and described in hieigriginal petition, a-
' i round which and adjoining thereto. there was laid off ‘
/ thirty-seven lots of land in a towneite, the property of
this plaintiff. for sale. The lots were laid off and
~ platted by the defendant. its agents, servants and em-
ployees. at the time the deed was made, a copy of which ~
was filed with.his original petition. in order that acid
lots could be sold by than plaintiff upon the representa-
tion made on said dead that the defendant would build a
depot upon the strip of land therein conveyed, and that I
acting in good faith upon the agreement and contract and '
conveyance that they would do so. and abide by its said '
agreement and contract by building a depot atyhadogreed .
to do. He sold and conveyed to John E. Allen one of
‘ said lots for $400.00, out of Block D. lot No. 3; sold
and conveyed 1 lot to J. S. Wilcox for $350.00, out of
Block 0. Lot Ho. 10; sold and conveyed two other late
to Isaac Stephens for $225.00, Block E, Lot E0. 1; sold
ond'conveyed two other lots to 8am Stephens for $375.00.
in Block E, Lot Ho. 2 & 3; sold to T. J. craft two other
‘ lots for $500.00. in Block A. Lots Ho. 4 & 5; that each
_ and all of these parties. J. M. Allen. J. S. Widoox. ‘
Isaac Stephens, Sam Stephens and T. J. Craft, have refuo~
ed to pay for the lots that they. and each of them, had
given as purchase money liens on said lote,‘end as each '
of these parties could not be compelled to pay for same.
thatlhe accepted the conveyance of said late back to him,
_1o-

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and that hehas loatthe amounts that they each owed. less
i the value of the lots on depreciated when returned; that
on the J. S. Wilcox. Isaac Stephens and John M. Allen
aolc of lots, the said purchasers paid a small amount at
the time of the conveyance of each of said lots. and
Sam Stephens and T. J. craft paid nothing down. and on
the account of the defendang to carry out its contract
and build a depot on the tract of land conveyed to they .
for that purpose, those parties have ro-convcyed each
lot back to this plaintiff, and have refused to pay any
further on said ----, as the lots sold to them had deprd- '
oiated in value by the defendanthfailing to comply with
its contract and agreement herein; that he was damaged
thereby, and lost by the failure as aforesaid of this
defendant, onthe John M. Allen sale $325.00. and on the
lot cold to J. S. Wilcox. his damage and lane on afore-
said. $275.00; that he gas damaged and loot $175.00 by
depreciation aforesaid on the Isaac Stephens lot, and in
the some way he lost, by depreciation as aforesaid, on
the Sam Stephers lot, $275.00. and on the T. J. Craft F.
lots he is damaged. and has lost. as aforesaid by the
failure and breach of the contract by this defendany,
_ $400.00. making the total loss on the sale or these said
lots, of $1,450.00.
Plaintiff further says that by reason of the breach
of defendant's contract by failing to build a depot, as
it had agreed and promised to do, that twenty lots, which
are laid off as shown by‘ghc plat herewith filed, have 4

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each depreciated in value from $300.00 per lot, at which
price he could have sold the said lots ofthey had com-
plied with their contract, to $50.00 per lot, thereby be-
ing a damage and 1083 to him in the full and Just sum of
$5,000.00; that by reason of the streets being laid off
in said Dinguotown, now Dinwood, that a Main street, Elk-
horn Street, East street and West street, which said sale
of land in said streets are equal to seven lots. and upon '
the defendant failing to comply with its contract. agree-
ment, etc., that the plaintiff can not close the said lots
as name must bekept open for the use of the public in
compliance with the sale of the said lots in said plot,
which ishere filed, referred to andmade part of this fifig
megdod_petition. The lots sold are to H. M. Dingus. 1
lot in Block B. Lot No. 2; A. B. Osbomn 1 lot in BlohB.
Lot No. l; 1 lot to A. J. Moore, now belonging to Tom
Patton. in Block 0, lot No. 7311 lot to D. 3. Salisbury
in Block 0, lot Ho. 6; 1 lot to o. c. Roberts, in Block
D, Lot Eb. 1; lot to Jack Ousley in Block E. lot Ho. 8; i
3 lots to Clubs Bailey. in Block E. lots No. 5, 6, & 7.
and a church buglding is also erected on 1 lot in Block
3. lot No. 9. .
That these streets are laid off in and over and
through this land, which has damaged him at least in the
sum of $2,000.00, by the failure of this defendant to
comply with its agreement. as set outin teedeed filed
with hiooriginal petition.
I)“-

 O O O

The plaintiff further states that he damaged by the
defendant in that. that it has had, and now has. the use .'
possession and control of the right-of-way over améV
through his tract of land now for over two years. The
saidtract which isdescribed by deed which is filed with
hisoriginal petition, to his damage in the full and Just
sum of $1,500.00. making in $01, for all the damages to
him by the defendant in thefull and just sum of $10,000.00
as follows. to~witz Damage for depreciation of twenty
lots caused by the failure and breach of contract by the
defendant herein. $5,000.00; by damage and loss and the
use of the etreete, as hereinbefore set out, $2,000.00;

,- by damage for rfight-of-way in. over andthrough his land.
$1,550.00; total amount of entire damage. as above stated,
3: $10,000.00.

Plaintiff saysfurther that he is damaged by said
defendant's breach of contract, and the residue of $03
land adjoining the lots laid off as shown by the plét
herewith filed, which land is on the north and south of
the lots laid off. Said plat is filedherewith and
made part hereof, marked "Plat."

WHEREFDRE. plaintiff prays judgment for $10,000.00

. as in his original petition, and for cost and all proper
and appropriate relief.
WILLIAM DINGUS.
Atty. for Plaintiff.
-21- ,

 STATE OF‘ KENTUCKY ,
COUNTY OF PLOYD.

The plaintiff, D. C. Dingus. says that the statements
in the foregoing amended petition are true as he believes.

D. C. DINGUS.

Subscribed andaworn to before me by D. C. Dingue.

this the 11th day of June. 1915.
ANNA FITZPATRICK.
Ex. Floyd 00.. Ky.
Filed June 13, 1915.
SAM PORTER. C.F.C.C.
-22- I

 ORDERS. FLOYD CIRCUIT COURT.
JULE RULES, HOEEKV. JULY 5, 1915.
D. C. DIEGUS. PLAIETIVW.

AGAINST ORDER
ELKHORH & BEAVER VALLEY
RAILWAY CO. . DEFEEEEDAEI’I‘fi.

On this. July Rule Day, July 5. 1915, came the de-

fendant herein, produced and entered written motion to
strike certain matter therein act out from the petition
herein; and without waiving such motion, also produced
and filed motion for rule against the plaintiff to elect
as to which of two or more canoes of action herein improp-
erly joined he would prosecute.

FLOYD CIRCUIT COURT '
D. C. DINGUS. PLAIMIFV,

AGAI EST MOT IO}!
ELKHORN a: 333mm VALLEY ‘_
RAILWAY COMPANY , MFEIWHTS.

The defendant moves yhc Court to strike from the V
-24— xx ‘

 O Q 0
petition of the plaintiff herein filed the following a—
verment, found on pages 4 and 5 of said petition, to—wit:
”Plaintiff finrther states that without said volunu
tary conveyance to the defendant, it would have been
compelled to have instituted pro¢eedings in condemna- _
tion against this plaintiff in order to acquire the
same. and that this plaintiff would and could have re-
ceived from the defendant in such proceedings, more
than the sum of ten thousand dollars ($10,000.00) far
the strip which this plaintiff conveyed to the defend- .
ant, together with the damages to the remaining land
of this plaintiff, which is adjacent to said strip.
‘ and out of wlfich said strip was conveyed."
And for cause assigns: The same is irrelevant, incompe—
tent, argumentative and redundant. I
ELKHORN é‘c 3321mm VALLEY RY. cfi;
BY HARRINS & HARKIHS, Attornéya
Viled July 5", 1915.
SAM PORTER. C.F.G.c.
o_25- \

 WYD CIRC‘SI’E’ CGU’E?
2'). a. magma. PfiMWIW
A6 A}: 3:15:31? ‘53?th 10315
rfifim‘fii J's E3Exi‘fl'}?! ‘P’Muiififf
RAIL‘EMY CQMM Ts38”, mmammwg.
The defendant antenna mohion for rule againat the
plaintiff to elect Ma ta which of two car more nazmea of
auticn imyramrly joined togmmer he will pmswuteu ,
EEKKORB? IE: WEAVER mm??? 2W. Cf). .
..8‘5 WHERE £1533 L‘fMEKIEfiTR. Attnrneya.
6333538. WINE) (221261-31? GQURT. ‘
my aux-1:2“; 'l'mfifi, mm: 7. 3.916.
3.2. e. 171361255, memflw‘ I
’\
v65. ‘
£1.me & BEAVFJ! VALIW ,
RAIL‘HAY 0013.135?” 3933mm:
Egon coxmidemtion of the motion omefenaant to _
striker eertain matter from petitian herein, the court. .
.26- i

 being advised, sustained motion.to which plaintiff ex-
cepts.
£33833. mom CIRCUIT COURT.
MAY JULIE TERM. JUNE 7th, 1916.
D. c. mucus, 1 memwi.
VS.
ELKHOBN & BEAVER VALLEY
RAIBWAY COfiPAEY, DEFEEDAET. ‘
Upon consideration of the motion to require plain-
tiff to elect as to which of one or more causes it iato ‘
prbsecute,the court. being advised. overrulea same said
motion. to which the defendant eXceyts.
CHEERS. FLOYD CIRCUIT COURT. .
MAY JUNE mm. JUNE 10TH,1916. ‘
It appearing that there is a necessity therefor, ow- 7
ing to the crowded and congested condition on both the I
criminal and civil dodkets of the Floyd Circuit Court. -

 and the Court no-ttiinaving time to finish the business ne»
ocssary to be done, it is ordered by the court that this
term of the court be extended, as the businessrequirea,
for the period of twelve (12) judicial days from and af-
ter the 10th day of June, 1916, this data being the ex—
piration of the regular may term, 1916, of the filoyd‘
Circuit Court, said extension to expire on and including
the 24th day of June, 1916; thisextencion of this term
does not interfere with any other term of court in this
Judicial District.

The following is a list of the cases in which judg»
manta, orderc and proceedings may be had during said ex—
tension of this term of the Gourt, to-wit:

I). C. DINGUS V8. ELKHORN a: BEAVER VALIW BY. 00.

(NOTE. There are several other cases included in

this order, it not being necessary to copy
the entire record in this transcript.)
ORDERS. “LOYD CIRCUIT COURT.
AUGUST RULES, AUGUST 7. 1916. ,
D. C. DINGUS. PLAIM‘IWF,
VS.
EIKHORN a: BEAVER VALLEY ‘
RAILWAY COki‘PANY , DEFENDANTS.
. "ecu .27. ‘

 . U 0
Defendant by counsel produced and filed answer to
pwtition and amended petition.
FLOYD CIRCUIT COURT

1). C. DINGUS. PLAINTIFF
AG AI HST ANSWER

ELKHORN a: BEAWBR VALIM

RAILWAY COHPANY, DEFENDANT.

The defendant, Elk Horn & Beaver Valley Railway
Company, for andwér and defense to plaintiff's petition
herein. says that it is untrue and it donioo that for or
in oonoideration of the promise or agreement of the do¢
fondant that it would as soon as its road was built and
oars running thereon would build a depot on the strip of
land conveyed. or make a public stopping place upon the
land conveyed moot convenient for the use of the general
public. or for the use of the adjacent lands. or lets
out of which said strip was conveyed, or that it would
build or oomplote a depot, or have a public stopping
place upon said strip conveyed. or that it would continue
said depot. or publiootopping place. as long as said road
was operated by 1y, or by its successors or assigns. or

~ -28-

 0 O O
for the nae of the plaintiff or his family, or persons
to whom he might sell said adjacent lots or land, or
5 all or any persons who might have business at said de~

pot, or deisre to use, purchase or have any business up~
on the same. orthat for said alleged aonaiderationa the

’ plaintiff transferred orconveyed to the defendant the
following described lot of land, as described in the pea
tition herein. or otherwdse, or at all. except as set
out in saiddeeé of conveyance. It denies that it a-
greed as soon as its road was built and oars running
thereon that it would build a depot on the atrip of land
conveyed. '

The defendant says that it has no knowledge or 1n~