58 Ind. App. 694 | Ind. Ct. App. | 1915
In both paragraphs of the complaint in this case, appellees sued appellant for damages for the destruction of a private farm crossing which had been constructed by one of appellant’s predecessors for former owners and occupants of the farm which had been severed by such railroad. Such crossing had been maintained by appellant and its predecessors from the time of its construction until November 20, 1909. Appellees base their right to a recovery on a covenant in a deed of conveyance of the right of way, made by one of their remote grantors to appellant’s predecessors, that it “ would make and maintain a farm crossing”, etc.
The complaint avers in substance that up to November 20,1909, appellant and its predecessors performed such covenant, but on said day appellant destroyed the crossing and has never since replaced it or built another. Appellant’s tracks and roadbed so divide appellees’ lands as to leave the larger, tillable portion of the farm on one side thereof, and the house and improvements on the other, so that appellees now have no means of access from one part of the farm to the other. The second paragraph in all essential respects is similar to the first, with these additions, that without a suitable crossing- appellees are unable to cultivate the portion of their farm on the east side of the tracks, and to build a suitable crossing would cost $5,000, and with such a crossing their lands would be worth $150 per acre, and without it but $50 per acre. The demand-in each paragraph is for $6,000. Separate demurrers to each paragraph of
The answers were a general denial and an affirmative answer predicated on former adjudication, in which it is alleged substantially that in June, 1909, the appellant brought suit against appellees in the Grant Circuit Court to appropriate a twenty-foot strip of land through their farm for right of way purposes parallel with their previous right of way; that appraisers were appointed to assess damages, the award was made, and exceptions to the .award taken, among which exceptions, it is stated that the amount assessed by the appraisers as the damages that will be sustained by the defendants by such taking of such real estate is wholly inadequate and insufficient, and that the amount assessed as the damages to the balance of their real estate of which said strip sought to be appropriated is a part, is wholly inadequate. The judgment in that case was pleaded, showing a recovery by appellees on the trial of the exceptions to the award made by the viewers and the payment of that amount to appellees. The action of the trial court in sustaining the demurrer to this special answer is the second error assigned.
Upon the issues thus formed, the cause was submitted to a jury for trial, which resulted in a general verdict for appellees for $4,000, and, over appellant’s motion for a new trial, judgment was rendered on the verdict.
We proceed to the consideration of the controlling question in the appeal. Appellant contends that, since appellant filed its petition in the Grant Circuit Court to appropriate an additional strip of land on the easterly side of and adjoining the right of way previously acquired through appellees’ farm, that they were duly notified thereof, that appraisers were appointed by the judge of the court in which such proceedings were filed, to appraise damages which the appellees sustained by reason of such appropriation; that subsequently they filed exceptions to the award of damages, that the exceptions were subsequently tried and damages awarded, and judgment entered accordingly, vesting title to said strip of land in the appellant, and awarding damages to the appellees and the acceptance of the amount of the judgment was a full satisfaction of all damages, not only for the rights acquired but such damages as resulted to the remaining lands, and those resulting from the destruction of the private crossing existing at the time the appropriation proceedings were pending.
Note.—Reported in 108 N. E. 873. As to compensation when lands are taken for right of way of railroad, see 19 Am. St. 458.