182 Ind. 306 | Ind. | 1914
This is an appeal from a judgment for damages, in a proceeding to condemn, for additional right of way, lands needed by appellant for reduction of its grade of the main track. The land sought to be condemned is 67 feet wide and 2,067 feet in length off the southeast side of a tract of land containing 66 acres belonging to appellee; the southeast boundary of said tract being the' northwest boundary of appellant’s right of way, and on which the main track has been located and operated for more than forty years.
The facts established in the ease are, in substance as follows: The railroad was originally the Indianapolis and Vincennes Railroad. At the time of its construction in 1866-1867 the 66 acres of land now owned by appellee was a part of a farm owned and occupied by her father, Noah Helium. On June 26, 1866, Helium executed to the Indianapolis and Vincennes Railroad Company, a release of the right of way for the road through his farm, and the road was constructed on this right of way, thus separating the 66 acres from the rest of the land owned by Helium.
The instrument of release contained no express provisions for a right of way over or across the railroad from one part of the farm to the other, except this provision, “provided said railroad company make provision for a stock passage under said road and the right to cut and remove for my use such trees as may be standing near and liable to fall upon the track, said company to allow me to join my fences on each side of said land, under the direction of the engineer, so as not to obstruct the use of the tracks, to pits in said railroad
Subsequently an interurban electric railroad was constructed and has been ever since in operation on the southeast side of appellant’s railroad and adjacent to its right of way, and interurban cars stop for passengers opposite said crossing. The reduction of grade and construction of the track on the strip of land acquired by this proceeding, have destroyed the old crossing and the privilege of ingress to and egress from the remainder of the 66-acre tract to the opposite side of the railroad and to said interurban track.
At the close of the evidence appellant requested certain instructions, No. 5 of which was refused, and in its stead
The only assignment of error is, that the court erred in overruling the motion for a new trial. The grounds for a new trial therein assigned are the alleged errors of the court in refusing instruction No. 5 tendered by appellant, and the giving of instruction No. 12.
Appellant contends that when Noah Eellum in 1890 conveyed by warranty deed the strip of land through his farm for a right of way for appellant’s railroad, without any reservations therein, or provision for a crossing, that he and his heirs are estopped from demanding that a crossing be maintained from one portion of the land to the other. This contention can not prevail. It is settled law that if one conveys a part of his land in such form as to deprive himself of access to the remainder, unless he goes across the land sold, he has a way of necessity over the portion conveyed. This is because the law presumes an understanding of the parties that the one selling a portion of his land shall have a legal right of access over the part sold to the remainder if he cannot reach it in any other way. This presumption prevails over the ordinary covenants of a warranty deed. Ritchey v. Welsh (1898), 149 Ind. 214, 219, 48 N. E. 1031, and cases cited; New York, etc., R. Co. v. Railroad Com. (1894), 162 Mass. 81, 38 N. E. 27; 3 Elliott, Railroads §1138 and cases cited.
At the time of the conveyance by Noah Eellum in 1890, the act of April 8, 1885 (Acts 1885 p. 148) covering cases of this kind, was in existence and made provision, that notwithstanding the conveyance, the grantor may have wagon and driveways across such right of way to other lands owned by said grantor, and that act has since been amended by providing the right for such wagon and driveways over a right of way to a public high
It is apparent that at the time the road was built, 1867, that it was the intention of all parties to the transaction that a crossing was to be built and maintained by the railroad company for the use and benefit of Helium. No other consideration was paid for the right of way, except such benefits as would result to the public generally and to said grantor in particular to have the road built. Upon the execution of the deed of 1890 the consideration therein named was $27.50. This certainly was not intended to be compensation for the destruction of the crossing which had been built and maintained by appellant and its predecessors for more than twenty years. It is evident therefore than at no time was it ever understood that the several tracts of land owned by Helium should be severed by the right of way, but that the same should remain one single tract, with the easement to cross said right of way.
The real contention arises in this case, as to the effect the severance of ownership would have upon the question of the right to the crossing. It is conceded by appellee that she had no prescriptive right to the crossing, but contends that by reason of the conveyance to her, by her coheirs of the land on the northwest side of the right of way she took an interest in the crossing for which she has a right to damages for its destruction. We are aware that there is a seeming conflict in the authorities on this question, some holding that where lands are severed by a right of way of a railroad that upon a severance of title that the easement would attach to each separate tract. Rathbun v. New York, etc., R. Co. (1897), 20 R. I. 60, 37 Atl. 300. Other decisions on the same question take the
There are no facts shown in this case, which would, under any law, entitle appellee to a way of necessity, either from the lands occupied by her to other lands owned by her or to a public highway. If the crossing was maintained it would lead appellee to no lands, owned by her, nor to a public highway within the meaning of §5444 Burns 1914, supra. The evidence does not establish any prescriptive right in said crossing, in appellee, neither does it show any right to the crossing as a way of necessity. It must follow that the court erred in refusing to give instruction No. 5 tendered by appellant, and in giving instruction No. 12 of its
Note. — Reported in 106 N. E. 401. See, also, under (1) 14 Cyc. 1176; (2) 14 Cyc. 1184, 1193; (3) 14 Cyc. 1199.