47 Ind. App. 657 | Ind. Ct. App. | 1911
— Action by appellee against appellant to recover damages accruing on account of being compelled to reconstruct its telephone lines across appellant’s right of way. The complaint was in one paragraph, to which a demurrer for want of sufficient facts was overruled, and the cause was put at issue by a general denial. The evidence was heard by the court, and, upon request of both appellee and appellant, the court made a special finding of facts, and stated its conclusions of law thereon. Appellant excepted to the conclusions of law, a motion for a new trial was overruled, and judgment was rendered upon the special findings in favor of appellee.
The errors assigned and relied upon for reversal are (1) in overruling the demurrer to the amended complaint;
The court found the facts to be substantially as follows: Appellee is a corporation which was organized and in operation in 1902, with its office in the unincorporated village of Arlington, Rush county, Indiana. Main street in the village of Arlington runs north and south. The right of way of the Cincinnati, Hamilton and Dayton railway, from the east side of said village extends slightly north of west through it. North of the Cincinnati, Hamilton and Dayton railway’s right of way, a highway, known as Phillips alley, extends west from Main street for a distance of 165 feet, where it opens into another highway, known as the
It has frequently been held in this State that an executed license, the execution of which required the expenditure of money and labor, is regarded in equity as an executed agreement for a valuable consideration, and although a parol license for the use and occupation of real estate, it is irrevocable. Ferguson v. Spencer (1891), 127 Ind. 66; Nowlin v. Whipple (1889), 120 Ind. 596, 6 L. R.
The court also found that the cost of making the change required by appellant was $199, and that appellee was damaged in said amount. Prom the facts found, the court stated, as a conclusion of law, that appellee was entitled to recover from appellant the sum of $199 and costs.
There was no error in this conclusion of law. The evidence not being in the record, it does not appear that the court erred in overruling appellant’s motion for a new trial.
The judgment is affirmed.