63 Ind. App. 289 | Ind. Ct. App. | 1916
The subject of controversy in this cause is a small tract of real estate, located on the outskirts, but within the corporate limits, of Greensburg, Indiana. On March 20, 1911, appellee filed a complaiht against appellant in two paragraphs, one for damages for the unlawful appropriation of this tract of real estate, and the other for
Briefly, the facts disclose that the Michigan division of appellant’s railroad crosses the Chicago division at a point within the corporate limits of the city of Greensburg. At the point of intersection, the Chicago division, runs east, and west, and the Michigan division runs northeast and southwest. For convenience in the operation- of cars, a switch was constructed from the east side of the Michigan division to the north side of the Chicago division, leaving a triangular space between the tracks of the two. divisions. Appellant filled up- the triangular space and erected a modern station thereon. Appellee claimed to be the owner of a lot, the greater portion of which extended- north of the Michigan division, and a very small portion extending south of the track of this division. The portion of” land in-controversy is bounded on the northwest by the right of way of the Michigan division of appellant’s railroad, and on the cast and south by land owned by appellant.
The giving of instructions Nos. 3, 4, 5 and 6 by the court of its own motion, and the refusal to give instructions Nos. 5, 7, 8, 12, 13, 14, 14J, 16 and 18, tendered by appellant, together with the admission and rejection of certain evidence, are the questions presented for review under the motion for new trial.
In stating the issues, the jury’s attention was called to each of the affirmative paragraphs of answer, which pleaded in various forms the different statutes of limitations that might be available to appellant.
“Where a part of .a tract of land is taken, the owner is entitled to the value of the land actually appropriated and any injury to the residue of the land naturally resulting from the appropriation and the construction and operation of the road thereon. ’ ’ White v. Cincinnati, etc., Railroad (1904), 34 Ind. App. 287, 71 N. E. 276; Louisville, etc., R. Co. v. Sparks (1895), 12 Ind. App. 410, 40 N. E. 546; Evansville, etc., R. Co. v. Swift (1891), 128 Ind. 34, 27 N. E. 420.
Many of the instructions given to the jury, when standing alone, lack clearness of expression. Taking the instructions as a whole, however, the jury was informed as to the law applicable to the issues joined and the facts involved. There was no error in refusing to give either of the instructions tendered by appellant.
In the light of the construction given the statute, which provides for the admission in evidence of exemplification
We have carefully examined each of the questions presented by appellant and find no error that calls for a reversal of the judgment. Judgment affirmed.
Note. — Reported in 112 N. E. 411. See under (9) 17 Cyc 339.