Jeffersonville, Madison, & Indianapolis Railroad v. Sweeney

32 Ind. 430 | Ind. | 1869

Erazee, C. J.

The appellant’s railroad was located and built, in part, along and upon a pre-existing public highway. By its charter it had a right to do this if it left the highway thirty feet wide. It had also the power to take a right of way sixty feet wide, subject to this limitation. At the place where the appellee’s horses were killed, the distance from the railroad track to the west side of the highway was, as the evidence tended to prove,, forty-five to fifty-five feet, so that a fence might have been built fifteen to twenty-five feet west of the railroad track and have left the highway .remaining thirty feet wide. Upon these facts, the appellant brings this case into this court, maintaining the proposition that it could not fence its railroad at the place without unlawfully encroaching upon the highway. We are very far from entertaining that opinion.

S. Stansifer, for appellant. F. T. Ford, for appellee.

Affirmed, with ten per cent, damages and costs.