58 Ind. App. 132 | Ind. Ct. App. | 1914
Appellant brought this suit to enjoin appellee from destroying or interfering with its railway fences and roadbed, and to quiet title to a right of way sixty feet wide through appellee’s farm. The suit was the result of a dispute between appellant and appellee as to the width of the right of way of appellant. Trial was by the court, which found the facts substantially as follows, and stated conclusions of law for the defendant, upon which judgment was rendered.
Since 1903 appellant has owned and operated a line of
In July, 1885, the Midland Railway Company upon the foreclosure of a mortgage against the Anderson, Lebanon and St. Louis Railway Company, bought its right and railway property, including the right of way above described, and in 1887 or 1888 laid ties and rails on the grade built by its predecessor in 1873, and began to operate the road. In 1891 the Chicago and Southwestern Railroad Company purchased said line of railway, and in April, 1903, the appellant purchased said line of railway at receiver’s sale.
In 1906, appellant without right built a fence out from the north line of its right of way on Kuser’s land 29 feet, 6 inches from the center of the grade, 6 feet further out from the center than the old fence, and on the south side of part of said lands also built a fence 29 feet, 6 inches from the center of the grade, this being done when William Kuser owned said land. While appellant was building the fence Kuser was away from home, and did not return until it was almost completed, and the fence was built without his consent and ovei: his protest. Thereafter the old post holes and ends of posts indicated where the old line of fence had been and were easily open to observation and appellee observed them when he bought said lands. In 1907, Kuser by warranty deed conveyed sáid lands to Lewis Bennington, who conveyed the same to appellee in 1908, together with portions of lands formerly owned by Myers and Parish, on the latter portions of which the fence built in 1874 still stood. While appellee was away from home, appellant tore down said old line of fence, and undertook to erect a new line of fence 29 feet, 6 inches from the center line of the grade,without appellee’s consent, and without any right. As soon as appellee learned of said construction, he notified appellant to cease building the new fence and .to put said fence on the line of the old fence, which appellant refused to do, whereupon appellee removed from his land the new fence.
Appellant has a right of way through appellee’s lands
The additional strip of land attempted to be taken by the plaintiff outside of its said right of way was not and is not now necessary for the operation of appellant’s railroad, and ■was not and is not now in any way coupled with the public interest. Appellant lias made no change in its roadbed and has made no more excavations and has laid no additional switches or side tracks and made no additional buildings of any kind or description along its right of way since the construction of said track in 1887 or 1888. Appellant has obtained no interest and has no interest in any part of appellee’s real estate except the right of way herein described.
The ground of error most strongly urged is the court’s refusal to admit in evidence a paper which purported to be a quitclaim deed from ¥m. A. Kuser and George A. Myers to the Anderson, Lebanon and St. Louis Railroad Company of a right of way thirty feet wide on each side of the center line on condition that the railroad company build a good
No error appears and the judgment is affirmed.
Note. — Reported in 107 N. E. 88. As to ancient deeds and when they are admissible, see 9 Am. St. 302. See, also, under (1) 17 Cyc. 443, 455; (3) 33 Cyc. 223; (4) 39 Cyc. 1703.