30 Ind. App. 650 | Ind. Ct. App. | 1903
Suit by appellee to recover the cost of a fence erected under thei provisions of §5324 Burns 1901. The complaint is sufficient, having been amended to comply with the opinion rendered upon the former appeal. Chicago, etc., R. Co. v. Vert, 24 Ind. App. 78. The only question argued is the sufficiency of the evidence to sustain the verdict in appellee’s favor. The suit was brought by the abutting landowner, Ann E. Vert, and upon her death appellee, as administrator, was substituted.
Construing §§5323, 5324 Burns 1901, together, the abutting landowner, in order to charge the road for its cost, must construct, the fence on the side of the railroad. This necessarily means that the fence should be built upon the margin, edge, or border of the right of way of the railroad. It should be placed as near as practicable to the line between the right of way and the abutting owner. The right given is statutory, and that the landowner may recover he must substantially comply with the statute. People, ex rel., v. Ohio, etc., R. Co., 21 Ill. App. 1; Ohio, etc., R. Co. v. People, ex rel., 121 Ill. 483; Wabash, etc., R. Co. v. Zeigler, 108 Ill. 304.
The fence was built twenty-one feet from the center of the railroad track. It is claimed by appellant that the right of way where the fence was erected extended forty feet from the center of the track; and as it appears that it was built twenty-one feet from the center it was not on the side of the railroad, as required by the statute. The greater portion of the right of way in question was conveyed to the predecessors and grantors of appellant by appellee’s decedent, and the deed, made in 1874, conveyed “the right
Mere proof of nonuser is not sufficient to show an intention of abandonment. See Hennessy v. Murdock, 137 N. Y. 317; Hayford v. Spokesfield, 100 Mass. 491. There is no evidence in the record to overcome the presumption that the first fence was built and possession of the strip retained by virtue of this clause in the deed. As there is no ambiguity in the deed, what the grantor or grantee understood by its terms, or in what manner they subsequently treated it, has no bearing on its construction. Wilkins v. Young, 144 Ind. 1, 55 Am. St. 162.
In Worthley v. Burbanks, 146 Ind. 534, it is held that ordinarily adverse possession must be shown to be hostile and under a claim of right, actual, open, notorious, exclusive, and continuous. It is true that constructive possession is sufficient under certain circumstances, but “without color of title there could be no constructive possession, nor any ripening of title into ownership.” Silver Creek, etc., Corp. v. Union Lime, etc., Co., 138 Ind. 297.
We have carefully considered all the evidence given in the case, and must conclude that it is not sufficient to show that appellee’s decedent acquired title to the twenty feet by twenty years’ adverse possession. Rot only is the evidence xinsatisfactory as to the location of the line up to which possession is claimed to have been held, but there is no evidence to show that possession by appellee’s decedent was not retained and held by her under the clause in the deed.
The motion for a new trial should have been sustained, Judgment reversed.