43 Ind. App. 221 | Ind. Ct. App. | 1909
This action was based upon a complaint in two paragraphs, brought by the appellees against appellant, in which judgment was recovered for the building of a fence along the right of way of appellant where appellees’ land abuts on said right of way.
The first paragraph of the amended complaint alleged that the railroad company had wholly failed to erect a fence along its right of w^ay. The second paragraph proceeded upon the theory that a fence had theretofore been erected, but had become out of repair and insufficient to prevent domestic animals from going from abutting land upon said right of way. Demurrers were addressed to each paragraph, as vrell as to the complaint as an entirety, which were overruled by the court and exceptions saved.
The errors assigned in this court are: (1) The rulings upon these demurrers; (2) stating the conclusions of law upon facts found; (3) overruling motion for new trial.
The special findings disclose that there was at one time a fence along the side of the right of way of appellant where the real estate abutted on the same, but when and by whom it was built is not disclosed, nor how long since it has'been destroyed; but the following further fact is found: ‘ ‘ That on said date there was no fence along the side of said right of way abutting on said real estate, and had not been for three years prior to July 11, 1905.” The record discloses that appellant was served with notice by appellees to build said fence on July .11, 1905, as required under §5448 Burns 1908, Acts 1885, p. 2.24, §2. This notice was given pursuant to §5447 Burns 1908, Acts 1885, p. 224, §1, which provides that railroads completed at the time of the taking-effect of this act, within twelve months, and roads thereafter completed, within twelve months after completion, shall be required to fence their rights of way and thereafter to maintain said fences. It also provides the kind of a fence to be erected and maintained.
