59 Ind. App. 147 | Ind. Ct. App. | 1915
The town of Newpoint, appellant, brought this action and by it sought to compel appellee, by mandatory injunction, to remove one of its main tracks from one of the streets of that town. Briefly stated, the averments of the first paragraph of complaint are in substance as follows: The appellant is a town of about 600 inhabitants, situated in Decatur County, Indiana, and in 1889 was duly incorporated as a municipal corporation, and since that time has been and is now a municipal corporation. Appellee is a railroad corporation and as such owns and operates a line of railroad which passes through the State of Indiana and through the town of Newpoint. There has been a public street, known as Railroad Street, located in such town for more than thirty years. .In August, 1906, and previous thereto appellee was threatening to construct a line of railroad longitudinally along said street its entire length. Before appellee had done any work thereon it was notified in writing by appellant’s town board not to construct its road on said street and that if it did appellant would institute an action to enjoin the operation of such road. Notwithstanding such notice appellee constructed such railroad upon said street its entire length. Said street is the main street in said town for foot travel and a large number of residences, factories, offices, stores .and saloons face upon it on each side its entire length, and the only means of ingress to and egress from such buildings is from and along said street, except by means of alleys and other back entrances. After said track was constructed the town by and through its town board notified appellee not to operate any engines, trains or cars thereon, and notified it that if it did, appellant would institute an action against it to enjoin such operation. Appellee is now daily operating over such track many trains of cars at high and dangerous rates of speed and such operation is without the consent of appellant and its town board. The location of the track in the street and
The second paragraph is not materially different from the first, and the third and fourth paragraphs set out more in detail the facts connected with appellee’s railroad occupying the street in question, and show that for thirty years last past the appellee had maintained and operated its railroad over such- street with the main line thereof extending longitudinally in and along and near the center of said street; that at the west end of such street and south of the main track appellee also maintained a side> track; that during such period appellee had at no time occupied more than 25 feet in width of said street, and there remained a considerable portion of said street south of appellee’s main track open to the public for travel; that in the years 1906 and 1907, appellee constructed a second main track longitudinally along said street immediately south and adjoining its other main track, etc.
To this complaint there was filed an answer in fourteen paragraphs, the first of which was a general denial. The second, fifth, seventh and eighth paragraphs were after-wards withdrawn. A demurrer to the remaining affirmative paragraphs was overruled as to paragraphs 9, 10, 11, 13 and M and sustained as to the other paragraphs.
The tenth paragraph contains substantially the same averments as the ninth paragraph, except, instead of alleging that the original owners of the 80-foot strip of land, now claimed by appellant, “gave and granted” such land to the said railroad companies, the tenth paragraph proceeds on the theory of estoppel and alleges, “that said corporations entered upon and took possession of the land described in the plaintiff’s complaint as the land upon which it is alleged the defendant has constructed its track and tracks and took possession of a strip of ground there 80 feet wide and constructed and operated a railroad thereon and did this long before 1854, and used said strip for right of way purposes; that no part of said right of way was then in any public highway or street; that in so doing they expended large amounts of money; that they did this with the’full knowledge and consent of the persons who owned the land over which said right of way extended; * * that the owners of such land never at any time objected to the construction and operation of the railroad as herein alleged.”
The eleventh paragraph contains substantially the same averments as the ninth and tenth paragraphs, but differs from.those paragraphs in that it alleges title to the right of way by adverse possession, Ariz., it alleges “that ever since said 80-foot strip of ground was so taken, said companies so taking it and the companies succeeding them including the defendant, have during all said time used and occupied the same for the purpose of constructing, maintaining and operating a railroad thereon and have used the same for railroad purposes and such occupation and use during all of said time has been continuous, exclusive, adverse, open, notorious and under claim of right to so occupy and use the same, and that this has continued for a period of more than fifty years; and each of said companies has claimed to own said 80-foot strip in fee; that each of said companies or corporations has succeeded to and become the owner of all the rights of the corporations or companies which preceded it in and to said strip of land 80 feet wide.”
The thirteenth paragraph purports to be a partial answer only and appellant predicates its title to the" strip of ground in question on adverse possession as to all that part of said 80-foot strip extending 1,500 feet east from the west corporation line of the toAvn of Newpoint.
The fourteenth paragraph is substantially the same as
A reply in general denial closed the issues and a trial by the court resulted in a general finding for appellee. Appellant filed a motion for a new trial which was overruled, whereupon judgment was rendered on the finding for appellee.
Separate errors are assigned in this court challenging the respective rulings of the court on the demurrers to each paragraph of answer, and the ruling on the motion for new trial.
One objection only is urged against each of the paragraphs of answer, viz., that they are bad because it is nowhere alleged in either of them “that appellee’s right of way was obtained in writing from the landowners. ’ ’ In support, of this contention appellant cites and relies on the acts of February 2, 1832, and February 16, 1848, which are the acts alleged in each of such paragraphs of answer as being the acts of the legislature which authorized appellee’s predecessors to construct, build and operate a railroad and acquire the right of way therefor.
The parts of said acts affecting the question under consideration are §15 of the act of 1832 (Local Laws, 1832
Finding no error in the record .the judgment below is affirmed.