37 Ind. 294 | Ind. | 1871
This action was commenced by the appellee against the appellants, and its object was to obtain injunctive.
The first step taken by the defendants was to move the court to require the plaintiff to make the complaint more specific. This motion was overruled, and this action of the court is assigned as error. But the question is not in the record. No bill of exceptions was filed, and we cannot, therefore, know what were the grounds of the motion, or that it was not properly overruled. The defendants then answered by a general denial, which was afterward withdrawn; and, second, as follows:
“That appellee, in 1853, organized under the general law, and immediately thereafter procured a release of right of way over said streets, from the then town of Columbus, without consideration, and solely for their principal line of road, without any switch thereon, and to be so maintained by appellee; that the road was so built and operated for some time, until an arrangement was made by appellee with the Madison and Indianapolis Railroad Company, whereby the entire management and control of appellee’s road passed into the hands of the Madison and Indianapolis Company, who continually, until May 1st, 1866, operated and controlled the same, the Columbus and Shelby Company, during said time, not participating at all therein, and running no trains thereon, but by the terms of said arrangement, transferred to said Madison and Indianapolis Company all right, power, and control over said road, with full power to make all changes in the line or route thereof, which said Columbus and Shelby Company possessed; that on May 1st, 1866, the Madison and Indianapolis Company and Jeffersonville Company consolidated, forming the Jeffersonville, Madison, and Indianapolis Company, which became the owner of all the rights, privileges, and franchises of said two companies, including said rights of said Indianapolis and Madison Company in said appellee’s road; that immediately after said consolidation, an arrangement was effected between appellee
There was a demurrer to this paragraph of the answer, for the reason that it did not state facts sufficient to constitute a defence to the action. This demurrer was sustained, and the defendants declining to amend, final judgment was rendered for the plaintiff, by which the defendants were enjoined from removing the said track, etc.
The second and third assignments of error are, that the' court improperly overruled the demurrers of the defendants to the first and second paragraphs of the complaint. These demurrers are not in the record, and we cannot, therefore, tell
The only question properly presented to us is that relating to the action of the court in sustaining the demurrer to the second paragraph of the answer.
As this paragraph alleges that the acts done by the Jeffersonville, Madison, and Indianapolis Railroad Company were done “with the full knowledge and consent of the appellee,” it only remains to be determined whether the alleged acts amount to an abandonment of the right of way of that part of the original track of the appellee which lies on, along, and across the streets of the city. The question is not whether the Jeffersonville, Madison, and Indianapolis Company has made an unauthorized use of the track by converting it into a switch, and by using it as a place to leave, its cars to the obstruction of the-streets and the annoyance of the citizens. This would hardly justify the tearing up of the track, whatever other remedy it might afford the injured parties.
Do the acts alleged in the second paragraph show an abandonment of the right of way? It is not claimed that the company has abandoned the use of that part of the track in question, but it is insisted that the taking up of the rails at a point outside of the city, the transferring of them to the new track, and the promise to procure a release of the right which the company had to the way from which the rails have been removed, thus making it for the present, at least, impossible to use the track, as it originally was, continuously from the Jeffersonville, Madison, and Indianapolis road to Shelbyville, on account of the gap thus made, and indicating by the agreement to' procure a release of the right of way an intention to make this arrangement permanent, is an implied abandonment, or operates as an abandonment, of the part in question. But it is urged by the appelleé that the running arrangement with the Jeffersonville, Madison, and Indianapolis Company may, for aught that appears, at any'time terminate this arrangement, and as that Company owns the new tracks, that
It is the opinion of a majority of the court that the facts alleged in the second paragraph of the answer are not sufficient to show an abandonment of the right of way in the city, and that there was no error in sustaining the demurrer thereto.
The judgment is affirmed, with costs.