170 Ind. 316 | Ind. | 1908
In 1869 appellant’s grantor constructed a railroad from Indianapolis to Cincinnati, by way of Connersville. In passing the city of Connersville, the railroad track for some distance was on an embankment fifteen feet high, sixty-six feet wide at the bottom and sixteen feet wide at the top. When built this part of the road was outside of the city limits, and all the population resided south of the railroad. Now the territory crossed by the embankment is within the city limits, and about one-half of the city’s population reside north and the other half south of the railroad. The railroad runs east and west through the city. Running north and south entirely across the city is Grand avenue, both ends of which are open and used to the railroad embankment. There is an under-grade crossing 450 feet east of Grand avenue and another crossing 600 feet west of Grand avenue. A traveler on Grand avenue had no other more convenient way of crossing the railroad than by one or the other of these crossings.
This is a condemnation proceeding by appellee city to extend Grand avenue across the right of way of appellant, and the only question raised in this court relates to appellant’s damages.
Grand avenue is sixty feet wide, and its extension through the railroad right of way requires the appropriation of a strip of ground sixty-six feet long (the bottom width of the railroad embankment) and sixty feet wide. Appellant has only an easement in the land. From the evidence allowed and rejected, and the instructions given and refused, it is manifest that the question was submitted to the jury on the theory that appellant was entitled to damages for (1) the value of any land actually taken from it, (2) the value of the embankment necessarily taken, (3) the cost of re
Judgment affirmed.