46 Ind. App. 444 | Ind. Ct. App. | 1910
Appellees brought this action against appellant to recover damages for the destruction of a farm crossing over appellant’s right of way and railroad tracks, in violation of a provision in a certain deed, giving appellant a paper title to such right of way.
Many of the matters suggested by counsel for appellant at this time were sufficiently discussed in the opinion on the former appeal. That opinion also shows the facts substantially as they appeared in evidence upon the previous trial. Pittsburgh, etc., R. Co. v. Wilson (1904), 34 Ind. App. 324.
On the return of this cause to the court below, the pleadings were reformed by the filing of two amended paragraphs of complaint and. a third paragraph. A demurrer to each of these paragraphs for want of facts was overruled. When the ease was here before, as now, each paragraph was based upon a deed of conveyauce of the right of way, which contained a covenant on the part of the railroad'company, grantee, “to make, for the grantors one farm crossing; together with all legal and equitable rights, claims and demands therein and thereto.” •
The first paragraph of the complaint, after showing that appellees were the owners of the land on- each side of appellant’s right of way, and the change of grade of the railroad tracks in 1901, whereby the crossing at grade which existed at that time, and at the time of the conveyance, and for many years thereafter, was, by appellant, without the consent of appellees or either of them, wrongfully and without
In the second paragraph it was shown that in 1902 appellant, as a partial compliance with its contract, constructed a crossing over the tracks of its railroad on the top of the embankment, at a point some rods east of the place where the destroyed crossing Avas located, and at a point AAdiere the embankment and tracks were ten feet above the surrounding surface, by placing planks suitable for a crossing between the rails and at the sides of its tracks, but that it wholly failed, neglected and refused to construct the approaches thereto so that it could be used by appellees as a crossing, or Avas suitable for the use and benefit of the occupants of said lands; that before appellees could use it as a farm crossing it Avould be necessary to build and construct approaches thereto; that by reason of the sloping condition of the surface of the land at that point it would be necessary to extend the approaches for a long distance onto appellees’ land on either side of appellant’s right of Avay, to the great and irreparable damage of the land; that in order for appellées to construct, and complete said approaches it will be necessary for them
The third paragraph was substantially like the second, except that it stated that a practicable crossing could be constructed, with approaches suitable for a farm crossing, at a point 150 feet east of the place where the appellant attempted to build a crossing, by grading and constructing. approaches upon the right of way, and extending them out'over the lands of appellees on each side of the right of way, and that by reason of the high grade and embankments, and the condition of the land adjacent, there was no other place where an overgrade crossing could be constructed as easily or as cheaply.
Appellant having failed to make an undergrade crossing, and it being practicable to make an overgrade one, and it being bound by its contract to make a crossing at its own expense, and not having done so, it would be liable in damages. The second and third paragraphs each shows a cause of action.
Appellant’s motion for a new trial was overruled.
Abram Wilson was the owner and occupant of the land in question at the time of the construction of the railroad. Delia Wilson was the widow of Abram Wilson, and with Prances M. Crumley, one of the two appellees herein, and Nancy Shrack, their husbands joining, in 1883 executed the deed for the right of way containing the covenant upon which this action is predicated. At the time the deed was made, Delia Wilson’s interest in the land was that received by her as widow of Abram Wilson, and the interest of her two daughters in the land came to them by inheritance from their father. Abram Wilson died in 1874, and his widow, mother of appellees, Prances M. Crumley and James W. Wilson, died in 1887. In 1888 James W. Wilson purchased the interest from his sister, Nancy P. Shrack, and he lived on the farm from that time until after the destruction of the crossing and the commencement of this action. It was upon his demand that the imperfect crossing was made.
The contract in suit was one by virtue of which appel
Possession of land is sufficient evidence to refer the question of title to the jury. Robinoe v. Doe (1841), 6 Blackf. 85; Stockwell v. State, ex rel. (1884), 101 Ind. 1; Herff v. Griggs (1890), 121 Ind. 471, 476; Wendell v. Blanchard (1822), 2 N. H. 456.
The company, to which the grant in this case was made, entered upon and used the right of way, as has appellant, its successor. There is no pretense of any right by either
In view of these facts, evidence was admitted, over appellant’s objection, tending to show the value of the farm with a crossing consisting of such extended approaches and without such approaches. The instruction in question also proceeded along the line of this evidence and was within the issues. Appellant’s objection to this evidence, as well as its objection to the instruction, calls in question the right of the jury to take into consideration, as an element of damages, the depreciation in value of said farm, if any, by reason of such extended approaches, and which were shown to be a necessary part of a reasonable and suitable over-grade crossing. Appellant was bound to make one crossing, and under a reasonable construction of the contract appellees should be subject to no expense or pecuniary loss by teason of making the crossing. The approaches will require the permanent taking of a part of appellees’ lands, for which they have received no compensation. The taking of these lands for such purpose and the effect of such approaches, otherwise affecting the value of the lands, were proper subjects of inquiry, and therefore proper elements to be considered by the jury in the assessment of the damages. The questions here discussed and decided are not, in principle, unlike many of the eases collected and considered in the opinion of this court in Lake Erie, etc., R. Co. v. Griffin (1900), 25 Ind. App. 138. See, also, Lake Erie,
Judgment affirmed.