59 Ind. App. 349 | Ind. Ct. App. | 1915
The nature and history of the occurrences which led up to the litigation in which this appeal was taken, and the character of the pleadings tendering the issues on which the case was tried below, briefly stated, are as follows: The appellant is a public service corporation engaged in the business of generating, transmitting and selling electric energy for light, heat and power purposes. It has its principal office and place of business at Muncie, Indiana, and.it there generates electricity used by it and its customers. It also has substations for the generation and distribution of such current at the towns of Eaton, Red Key, .Dunkirk and Hartford City, Indiana. In the month of September, 1911, and prior thereto appellant was engaged in constructing a transmission line on a private way from its plant in Muncie to its plants in Eaton and Hartford City, and then to Dunkirk and Red Key. This private way over which it was constructing such line was located immediately west of, and adjacent to, the right of way of the Port Wayne, Cincinnati and Louisville Railroad Company, known as the Lake Erie and Western Railroad. Prior to September, 1911, appellant had procured a private right of way for such line between Muncie and Hartford City from all the owners of the land over which it passed except from appellee, and three others. Having failed in its negotiations with appellee to secure a right of way over his farm, appellant filed condemnation proceedings for that purpose. Pending such proceedings appellant pursuant to permission obtained from said railroad companies constructed its transmission line on their right of way through appellee’s land. Later appellant turned its current into such transmission line and proceeded to construct a private telephone line on its poles for the use of its workmen. Appellee objected to such construction and cut the line at a point thereon where his farm crossing passes over the railroad right of way. Appellant then filed its sworn complaint in tbis cause and procured a temporary re-, straining order, restraining the appellee from further inter
The length of the finding forbids its incorporation in this opinion, except in so far as necessary to an understanding of the questions presented by the appeal, and the disposition made thereof. The substance of the particular findings objected to by appellant is as follows: (1-3) On, before, and after September 4, 1911, Joseph C. Joliff and Lulu B. Joliff, his wife, hereinafter referred to as the “Jol-iffs”, were the owners in fee simple of the following described real estate (here follows description), subject only to an easement, or railroad right of way owned by the Port Wayne, Cincinnati and Louisville Railroad Company, and operated by the Lake Erie and Western Railroad Company. Neither of said companies has or holds any right or interest in said right of way other than a right of way of easement for railroad purposes,
The conclusions of law are as follows: “First. That the law is with the defendant, and against the plaintiff. Second. That the plaintiff is not entitled to recover in this case against the defendant, and is not entitled to have an injunction against the defendant, and that the restraining order heretofore issued in said cause should be dissolved. Third. That the defendant is entitled to recover his costs against the plaintiff in this ease. ’ ’
It is insisted that a- railroad right of way in Indiana is
The case of Evansville, etc., R. Co. v. City of Evansville, supra, was a ease where the city was sued on a subscription contract for stock in a railroad company executed by the mayor pursuant to an order of the common council of such city. By the charter of the city the common council was authorized "to fake stock in any chartered company for making” roads "to said city”.' The ease of City of Aurora Y. West, supra, was very similar in its facts. The court in those eases very properly held thathhe word “roads” as used in the charters of such cities included railroads and hence upheld the stock subscription contracts. It is apparent that these cases can have no controlling influence as to the meaning of the word "highways” as used in the section of the statute under consideration. The case of Strange v. Board, etc., supra, was an action by a taxpayer and freeholder to enjoin the board of commissioners from letting a contract to pave with brick a highway less than three miles in length outside of a city or town pursuant to an election held under the highway act of 1907, being §7719 Burns 1908, Acts 1907 p. 68. The court in that ease in speaking of the highway act of 1905, supra, defined the word "highway” as above indicated ; but an examination of the case will show such definition had no reference to the meaning of the word as used in §38 of such act. Indeed, the definition on its face shows that the court had in mind an inclusive definition rather than
It might be stated also, in this connection, that it is manifest from finding 22 of the trial court that appellant did not confine its transmission line to the right of way of the railroad company; but, on the contrary, both on the north and south ends of appellee’s land, extended its line over on appellee’s land some five or six feet, and hence as to that part
Judgment affirmed.
Note.. — Reported in 109 N. E. 433. As to grant of easement by implication, see 122 Am. St. 206. For uses to which railroad right of way may be devoted as against the owner of the fee, see 30 L. R. A. (N. S.) 512. As to the right of a railroad company to permit use of right of way or station grounds by private individuals, see. Ann. Cas. 1912 A 180. As to the right of one of two parties deriving title from common source to assert paramount title as against other party, see 16 Ann. Cas. 652. See, also, under (1) 3 C. J. 1410; 2 Cyc. 1014; (2) 31 Cyc. 316; (3) 3 Cyc. 370; (5) 22 Cyc. 940; (6) 16 Cyc. 716; (7) 22 Cyc. 937; (8) 22 Cyc. 937; 16 Cyc. 926; (9) 33 Cyc. 220; (10) 16 Cyc. 765; (11) 3 C. J. 933-938; 2 Cyc. 730, 728; 38 Cyc. 1990; (12) 15 Cyc. 469, 612; (13) 36 Cyc. 1153; (14) 36 Cyc. 1106.