40 Ind. App. 615 | Ind. Ct. App. | 1907
Appellee recovered judgment against appellant for the rebuilding of a fence on its right of way where appellee’s farm land abutted upon the same. The complaint alleges, in substance, that appellee’s lands, being agricultural lands, abut upon the right of way of appellant’s railroad; that on April 12, 1905, the original right of way fence along said lands had decayed so that it would not turn stock of any kind; that at said time his said lands were fenced, except along said right of way; that on said day he caused to be prepared and served upon the appellant’s nearest freight agent a written notice stating that he owned said lands, that the fence was out of repair, the probable cost of putting it in repair, and that unless appellant rebuilt or repaired the fence within thirty days he would enter upon the right of way and rebuild or repair it himself; that, the fence not having been rebuilt or repaired pursuant to said notice, he, on May 15, 1905, built and constructed along the edge of the right of way next to his said lands, a good woven-wire fence, at a cost of $106.67, and on May 22, 1905, he prepared an itemized statement of the cost of said fence, verified the same, and delivered a duplicate copy thereof to appellant’s agent, being the same agent upon whom he served said notice; that appellant failed within sixty days' to pay or tender the amount shown by said statement to be due, and that said sum, together with an attorney’s fee of $50, is due and unpaid. A demurrer to the complaint for want of facts was overruled, the cause put at issue by general denial, and tried by the court. Upon proper request the court made special findings and stated one conclusion of law thereon, to the effect that appellee was entitled to recover the reasonable value of the fence constructed by him, in the sum of $99.95, and his attorney’s fee of $25 and costs.
Judgment affirmed.