188 Ind. 230 | Ind. | 1919
— This was a suit by appellant against appellee, whereby the former sought to enjoin the latter from further entering upon its land and doing the things necessary for the permanent laying of a railroad switch track thereon; for a mandate requiring appellee to remove that part of the track in course of construction and to require it to restore the premises to its former condition.
The complaint was in one paragraph. The cause was tried by the court; special findings of fact were made, conclusion of law was stated thereon, and judgment was rendered in favor of appellee. The appellant’s motion for a new trial was overruled,' and this ruling is the only ■ error assigned. The specifications relied on in support of this motion are: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the court erred in admitting in evidence, over objections by appellant, the plat of' an extension of Mumma’s addition to the city of Winchester, Indiana; and (4) error of the court in refusing to strike out this plat.
We will consider the questions presented in their reverse order, and, in doing so, our attention will first be directed to the ruling of the court in admitting in evidence a certified copy of the plat of John Mujnma’s extension to Mumma’s addition to Winchester.
As we see this case, the controlling question is whether or not block No. 3 owned by appellant abuts on the south the right of way of appellee, or a public street known as Railroad avenue. If Railroad avenue for its entire width of 110 feet is a public street, and appellant is the owner of the servient estate to the center thereof, as it claims, then the judgment from which it appeals must be reversed, but, if appellee is the owner in fee simple of the south eighty feet and abutting block No. 3, as claimed by it, then the judgment must be affirmed.
The special findings of the trial court support the contention of appellee, but appellant insists that the evidence does not support the findings, and that the decision of the trial court is contrary to law. Appellant first makes the point that appellee by its proposed use of the street is taking appellant’s property without due process of law in violation of the fifth and fourteenth amendments to the federal Constitution, and, second, that the proposed use will destroy one of its means of ingress and egress to its property without
It is conceded that both parties to this appeal derived title to their respective parcels of land from a common source. John Mumma, being the original owner of all this land, on May 26, 1851, by quitclaim deed released to appellee’s predecessor “the right of way” for a railroad over the northeast quarter of section No. 20, township No: 20, north, range No. 14, not included in the original plat of the town of Winchester, nor in a four-acre lot owned by one Smith. Shortly thereafter Mumma’s grantee, the Indianapolis and Bellefontaine Railroad Company, constructed a railroad over this land, and along the line on which appellee’s tracks are now located.
The Bellefontaine company was incorporated under an act of the general assembly of this state, approved February 17, 1848. Local Laws 1848 p. 176. Section 16 of this act authorizes the construction of the railroad; §18 authorizes it to receive from persons land necessary for the construction or location of its road; and §21 provided that: “When said company shall have procured the right of way as hereinbefore provided, it shall be seized in fee simple of the right to said land, and shall have the sole use and occupation of the same.”
We have no fault to find with appellant’s contention that the owner of a tract of land is held to dedicate such portion thereof as is designated for public use on a recorded plat with reference to which he sells lots. Miller v. City of Indianapolis (1890), 123 Ind. 196, 24 N. E. 228. But the facts before us make an entirely different case, for here it appears from the evidence and the findings that the north thirty feet only of Railroad avenue Mumma was authorized to dedicate to the public, and that the eighty feet opposite and abutting on the north line of block No. 3 was for more than forty years in the undisturbed possession of appellee and its predecessorthat this same eighty feet was taken possession of by the Indianapolis and Bellefountaine Railroad Company in the year 1851, and it, and its successor, have continuously used this 'strip of ground from that time until the present as a private fight of way. Under the evidence in this cause and the provisions of the act of February 17, 1848, it seems clear that the release executed by Mumma to appellee’s predecessor must be construed as giving to appellee the fee-simple title to the south eighty feet of Railroad avenue.
Upon a careful review of the evidence, we hold that it supports the findings, and that the findings justify the conclusions of law. There was no error in overruling appellant’s motion for a new trial. The judgment is affirmed.
Note. — Reported in 123 N. E. 1. Railroads: estate or interest acquired in land purchased for right of way, Ann. Cas. 242, 13 Ann. Cas. 432, Ann. Cas. 1916E 763, 33 Cyc 168. See under (1, 2) 18 C. J. 282; (4) 28 Cyc 835.