38 Ind. App. 115 | Ind. Ct. App. | 1906
Appellee in the court below instituted this action against appellant to recover damages for the death of a cow, averred to have been poisoned by drinking oil and eating .paints. It is conceded that the cause was tried upon the second paragraph of the amended complaint. A demurrer to this paragraph was by the court overruled, and this ruling is here assigned as error. So far as any question for our consideration is concerned, a general denial formed the issue. The cause was tried by the court, special findings of fact made and conclusions of law stated thereon, and judgment in favor of appellee for $63.
(2) The substance of the facts found may be stated as follows: On May 13, 1902, appellant was an Indiana corporation, and on June 15, 1903, was the owner of a line of railway from the city of Kokomo to the city of Logansport, Indiana. On said May 13 Hannah Jones and Silas W. R. Jones were the owners of a certain tract of grazing land in Howard county, Indiana, which was on that date enclosed by a good, substantial fence. On said last date said owners agreed in writing to sell appellant a portion of said tract of land, which instrument, omitting the description of the land sold, is as follows:
“Greentown, Indiana, May 13, 1902.
For three and one-half acres more or less in section twenty-five, township twenty-four north, of range three east, in Howard county, Indiana, I will take $568.59, upon the following terms and conditions, to wit: The boundary of said land is as follows: [Then follows a description of the land]. I will make warranty deed for same and furnish abstract showing a perfect title to same, and give possession of the same on and after November 1, 1902. The parties buying said land are to build a good, woven-wire fence on the east line of said tract of land, using cedar posts in the construction of said fence, and they are not to take possession of said ground in any manner whatever until said fence is fully completed, and the consideration for*119 said land is paid in full. This proposition good and binding on me for ten days from this date.
May 13, 1902, at 5 o’clock p. m.
Hannah Jones.
S. W. E. Jones.”
“Kokomo, Indiana, May 23, 1902.
We herewith accept the above proposition of Hannah Jones and S. W. E. Jones, and have this day paid yon $50 to bind said proposition, and will pay balance of money on or before November 1, 1902, or forfeit the $50 this day paid you.
Accepted at 1:30 o’clock p. m.
Indianapolis Northern Traction Company,
By J. H. Leffler, agent.”
On November 10, 1902, Jones and Jones sold and conveyed to Thomas C. Malaby by deed containing covenants of general warranty, a part of said original tract, and abutting the east line of the tract embraced in said agreement. On May 15, 1903, Malaby rented and leased to appellee the tract so purchased from Jones and Jones for grazing purposes, and from said last date to June 15, 1903, he continuously pastured his cow thereon. Prior to the month of May, 1903, but during that year, appellant took possession of the right of way as purchased from Jones and Jones, and begun the construction of its interurban railroad over the same, before constructing a fence along the east line of such right of way, and thereafter, and until June 15, 1903, and without any fence on said line, and knowing that cattle were being pastured upon said leased premises, it placed large quantities of materials, such as paints and oils, thereon, as well as on said leased premises, and on said last date had freshly painted trolly poles and large quantities of green paint and oil deposited thereon, which were exposed and unguarded, and which paint and oil were then allowed and permitted to be scattered over and upon the grass growing on its right of way and the premises so leased, without notifying appellee that
The court did find that appellant entered into a written contract with the grantor of appellee’s lessor to fence its right of way before entering thereon to construct its road, and that the deed to appellee’s lessor contained covenants of general warranty. The contract is set out in the findings. Under the findings, our consideration is limited to this contract, and the action of the parties thereto, as evidenced by the facts found. It is argued by appellant that the findings exhibit an executory contract and create only rights in personam, and until executed there can he no rights in rem. We have no fault to find with this argu
The agreement to fence, in the very nature of things, had reference to and is in many essential elements a real covenant. It is the usual covenant contained in grants to railway companies for rights of way and construed by courts as covenants running with the land. It contained no stipulation to make it purely personal. Such covenants may be with respect to the interest in lands granted, or it may be in the interest of that portion not granted or the lands adjacent thereto, depending upon the reasonable intent of the parties as expressed in the contract. Conduitt v. Ross (1885), 102 Ind. 166. The stipulation in the contract to fence placed that duty upon appellant, and was in part the consideration for the proposed grant, and, looking to the object and purpose of this feature of the agreement, it will be readily seen that the interest intended to be benefited thereby — by keeping animals off of appellant’s right of way and away from danger — was the unsold portion of the land.
The special findings exhibit a valid contract, founded upon a valuable consideration and in full force and effect. Its object is clear. The intention of the parties to be thereby accomplished is plain. While in terms it. is executory, yet nevertheless it was the authority by which appellant entered into possession of the land and began and continued the construction of its road. By such possession and acts it must be held to have assumed all the burdens imposed by the authority under which it was acting. One of these burdens, that of building a fence along the east line of its right of way, by the contract is made a condition precedent to its possession for any purpose, but, in violation of such stipulation, it proceeded to construct its road over the land described in the contract and deposited
The court in Conduitt v. Ross, supra, refers to the case of Bally v. Wells (1769), 3 Wils. 25, and quotes: “When the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant.”
Appellant argues, ánd it is the law, that executory contracts to convey terminate with the execution of the deeds, and the rights of the parties are to be determined by the latter, the presumption being that the deeds give expression to the final purposes of the parties. Flanders v. Chicago, etc., R. Co. (1892), 51 Minn. 193, 53 N. W. 544; Turner v. Cool (1864), 23 Ind. 56, 85 Am. Dec. 449; Clifton v. Jackson Iron Co. (1889), 74 Mich. 183, 41 N. W. 891, 16 Am. St. 621; Close v. Burlington, etc., R. Co. (1884), 64 Iowa 149, 19 N. W. 886. But where the parties are proceeding under such executory contract containing a covenant, evidently for the benefit of the remaining portion of the land, and no deed having been executed in the performance of such contract, it would seem to us that its provisions, under all the facts in this case, should and does extend to cover the damages sought to be recovered by this action.
In 3 Elliott, Eailroads, §1188, it is said: “Where a railway company obtains a right of way through á farm, and in consideration of the grant of such right of way agrees to erect and maintain secure fences, it is bound to pay for animals killed or injured by its trains in cases where the animals come upon the track through the fault of the company in failing to erect fences according to the terms of its contract. Such agreement when recited in the condemnation proceedings or the instrument by which the railway company obtains its right are charges which run
In Gulf, etc., R. Co. v. Washington (1892), 49 Fed. 347, 1 C. C. A. 286, where damages were sought for cattle hilled, it was held that “when a railroad company enters into a contract with a landowner to fence its track through his premises for the protection of his stock, such a contract is obligatory on the railroad company as a statute requiring it to fence its track, and, so far as relates to the question of the liability of the railroad company for stock killed by reason of its breach of such duty, it is precisely what it is when the obligation to fence is imposed by statute.”
The case of Louisville, etc., R. Co. v. Sumner (1886), 106 Ind. 55, 55 Am. Rep. 719, was an action to recover damages for hogs killed, as well as other items of damages, occasioned by the neglect of the company to build a fence along its right of way, in violation of a recital in its deed, that such conveyance was made upon the consideration that $200 was paid, and upon the further consideration that the grantee covenanted “to fence said strip.” It was held that “it must be supposed that the defendant knew, when it made the contract, and in pursuance thereof exposed the plaintiff’s farm to injury by throwing the fields open to the public and rendering it hazardous for' him to allow his own animals to pasture where they would be exposed to destruction by the defendant’s trains, that special damages would result. Such damages must, therefore, have been within the reasonable contemplation of the parties when the contract was made. That the duty which the railroad company owed arose by contract did not make the rule for the assessment of damages different from what it would have been if the duty to fence had been imposed by statute.”
In Toledo, etc., R. Co. v. Burgan (1894), 9 Ind. App. 604, the landowner executed a deed to the railroad company, and on the same day, by an extraneous contract, the company agreed to fence the right of way so conveyed to
The court did not err in its conclusion of law.
(3) Appellant also insists that the trial court erred in overruling its motion for a new trial. What we have heretofore said in passing on other questions here presented disposes of all the questions arising and presented by appellant in support of this assignment.
Judgment affirmed.