20 Ind. 9 | Ind. | 1863
Henrietta and Mary Oakes being minors, by Morris Pierson, their guardian and next friend, sued the Railway Company in trespass. The complaint consists of two counts. The first alleges that the plaintiffs were the owners and in the possession of a certain half-quarter section of land in Hancock county, and that the Company, which was the defendant, on the 1st of January 1853, and on divers other days, &c., entered upon said land, and took therefrom 25000 yards of gravel, worth 1250 dollars, and converted the same to her own use, &c. By the second count it is alleged that the defendant, intending to injure the plaintiffs, did erect and continue an embankment adjoining to and upon the same land, and thereby caused large portions of it to be overflowed and rendered worthless, &c. Damages were laid at 1800 dollars.
The defendant answered, 1st. By a general traverse. 2. That defendant was organized under, and derived her powers as a corporation, from certain acts of the Legislature, (which are referred to in the pleading), and that in the use and construction of the railway, provided for by said acts, it became and was necessary to take said gravel, which was situated on
Plaintiffs demurred to the second, third, and fourth paragraphs of the answer. To the third, the demurrer was overruled, but to the second and fourth it was sustained. And the plaintiffs, as to the third paragraph, replied, 1. By a general denial. 2. That defendant did not ask plaintiffs to relinquish the land, gravel, &c., mentioned in the answer, nor did she offer a fair compensation therefor, but they were at all times ready and willing to accept such compensation, and relinquish the right of way, &c. 3. That plaintiffs never refused to relinquish to defendant the right to any lands necessary for the use and construction of the railway, nor did they ever refuse to accept a fair compensation for such relinquishment, but the
Demurrers to the second and third replies were overruled, and the defendant excepted. The issues were submitted to a jury, who found for the plaintiffs 123 dollars. Motion for a new trial denied, and judgment on the verdict.
Section 3 of an act amending the charter of the Company is referred to by the appellant, and relied on as decisive of the questions involved in this case. That section provides thus: “In all cases where the owner of lands, stone, (gravel, wood, or other materials) necessary for the use and construction of the road, shall refuse to relinquish the same to the corporation or shall refuse to accept a fair compensation therefor, it shall be lawful for the corporation, by their agent, &c., to enter upon, take possession of, and use the same, avoiding, in all cases unnecessary damage to the owner. And where such owner may feel aggrieved or injured in consequence of such use of his land, &c., he shall make a written complaint before the nearest justice of the peace, setting forth the nature and locality of the injury, &c., whereupon such justice shall require the president of the company to appoint one disinterested appraiser, and the complainant another, which appraisers, so appointed, shall upon computation of the damages, make up their award, and report the same to the justice, &c.; Provided that no claim shall be recovered or paid by such corporation unless application therefor be made as herein provided, within two years next after the property shall have been taken possession of as 'aforesaid.” Local laws, 1849, p. 92.
In view of this enactment, the enquiry arises whether the plaintiffs, in this instance, have not misconceived their remeedy? It has been often decided that “Where property is taken for public use, under the authority of a statute which
The judgment is reversed. Cause remanded to be dismissed.