51 Ind. App. 497 | Ind. Ct. App. | 1912
— This action was instituted by appellee against appellant, to recover damages on account of a trespass on the lands o£ appellee in changing the grade of a track on the old right of way of appellant across the lands of appellee, and involving the destruction of a subway and drainage system on said lands.
The complaint was in four paragraphs, a demurrer to each of which was overruled, and exception saved by appellant. The only answer was a general denial.
The ease was tried before a jury, which found for appellee in the sum of $5,000. Answers to interrogatories were filed with the verdict, and on motion of appellee said amount of the verdict was reduced to $4,500, for which sum judgment was rendered after a motion for new trial had been overruled.
Appellant relies on the following errors: (1) In overruling separate demurrers to the first, second, third and fourth paragraphs of the amended complaint; (2) in overruling appellant’s motion for a new trial.
Omitting the formal parts, appellee’s first paragraph of amended complaint alleged, in substance, that appellant’s railroad runs almost due east and west near the center of and through a 127-acre tract of real estate belonging to appellee, situated in Hendricks county, Indiana; that said real estate is used as one farm, with buildings thereon suitable for farming purposes, “consisting of a dwelling-house, stock barns, hog houses and other necessary buildings; that said farm is a grain and stock farm in a high state of cultivation; that when appellant and its predecessors acquired said right of way and constructed its railroad thereon, John N. Griswold, father of appellee, owned said farm, and he then reserved for the use of said real estate for himself, his heirs and assigns, a perpetual right to a passageway under said railroad track through a large wooden culvert or subway, ten feet in width, and six feet in height up to the superstructure, which was not to be
As to paragraphs two, three and four, it is insisted, in effect, that they are insufficient, for the reason that appellant by its proceedings in condemnation and the said compromise agreement made thereunder, acquired the right to do the things charged in each of said paragraphs without being answerable in damages.
In the ease of White v. Chicago, etc., R. Co., supra, the Supreme Court said at page 327: “The presumption is that every injury which, in judgment of law, would result to the other adjacent property of the owner from taking a part of his land for the construction of the road, and from the use of it in a proper manner when constructed, was foreseen by the appraisers, and included in their first estimate. The award made by the statutory tribunal is exhaustive; and the land-owner cannot maintain an action for damages which should have been but were not assessed and allowed in that proceeding; even though he claimed them there, and they were erroneously disallowed. ’ ’
Appellant in changing the grade and reconstructing and rebuilding its right of way had the right, under these authorities, properly, to drain the' same, so long as such drainage was provided on its own right of way, and it had this right even to the extent of deepening and extending its side ditches in either direction, and thereby collecting water that before was not wont to flow therein, and for the collection of such water, as long as it was not carelessly and negligently done, appellant, under said authorities, would not be liable for damages, subject, however, to the condition that the collecting of such excess of water imposed on appellant the duty of providing a proper and sufficient means for its disposition, so that, after being so collected, it would not be poured on the lands of any adjoining landowner in great and unusual quantities. Lake Erie, etc., R. Co. v. Hilfiker, supra; Central, etc., R. Co. v. Windham, supra; Roushlange v. Chicago, etc., R. Co., supra; St. Louis, etc., R. Co. v. Anderson (1896), 62 Ark. 360, 365, 35 S. W. 791; New York, etc., R. Co. v. Jones, supra.
We are of the opinion, therefore, that the demurrer to this paragraph should have been sustained.
While the fourth paragraph is open to doubt, we are inclined to think that its averments are sufficient as against said objection.
The fourth provision of said agreement provides for a lane on either side of appellant’s right of way, to be fenced off and used by said Griswold in connection with said subway until the railroad company, in its judgment, shall need such strip for its own purposes, at which time said Griswold agreed to remove said fence so as to make such lane on his own land. The fifth paragraph provides for a private way or crossing over said railroad track for said farm, to be used subject to certain conditions therein provided. Section six of said agreement provides that “the right, privileges and responsibilities involved in the fourth and fifth paragraphs shall not continue beyond the time when the party of the second part shall cease to own said farm,” except on renewal as therein provided.
In construing a similar statute in Karmuller v. Krotz (1865), 18 Iowa, 352, the supreme court of Iowa, on page 358, declared the reasonable inference to be “that the use of the words, heirs or assigns would not be absolutely essential in order to make the right of way in question appurtenant to the land.” To the same effect are the following cases: Barkhausen v. Chicago, etc., R. Co. (1910), 142
We think, therefore, that the error of the court in overruling the demurrer to said third paragraph of complaint, and in giving said instruction five, could have in no way affected the $4,000 items which went into the verdict. As to the additional $500 represented by the verdict, we cannot say that it may not have been influenced by said erroneous rulings.
It appears from the evidence in this case that it has been twice tried. It appears, also, we think conclusively, that a remittitur by appellee of $500 will cure any possible harm resulting not only from said erroneous rulings of the court above discussed, but also any other possible error complained of which may have resulted in harm to appellant, and that the ends of justice will be best served by affirming the judgment below, subject to the condition that appellee file a remittitur of said sum of $500.
The judgment is therefore affirmed at the costs of appellee, subject to the condition that appellee will within sixty days from this date enter a remittitur of $500 of the judgment rendered by the lower court as of the date of the judgment below; otherwise the judgment is reversed at the costs of appellee, and the cause remanded for a new trial.
Note. — Reported in 97 N. E. 1030. See, also, under (2) 14 Cyc. 1221; (4) 33 Cyc. 161; (7) 40 Cyc. 653; (8) 40 Cyc. 643; (9) 15 Cyc. 1140, 1160; (10) 14 Cyc. 1141; (11) 14 Cyc. 1160; (12) 14 Cyc. 1165; (13) 14 Cyc. 1187; (14) 38 Cyc. 1612; (15) 3 Cyc. 436. As to elements of damages allowable in proceedings in the exercise of the power of eminent domain, see 85 Am. St. 291. As to the right of one landowner to accelerate or diminish the flow of water to or from the lands of another, see 85 Am. St. 705.