The Chicago and West Michigan Railway Company v. Huncheon

• Decision Date: 11 March 1892
• Docket Number: 15,020
• Citation: 30 N.E. 636,130 Ind. 529
• Parties: The Chicago and West Michigan Railway Company v. Huncheon et al
• Court: Indiana Supreme Court

30 N.E. 636

130 Ind. 529

The Chicago and West Michigan Railway Company v. Huncheon et al

No. 15,020

Supreme Court of Indiana

March 11, 1892

From the St. Joseph Circuit Court.

Judgment affirmed, with costs.

J. H Bradley, for appellant.

C. F Griffin, D. J. Wile and J. B. Longworthy, for appellees.

OPINION

McBride, J.

The appellees are the owners of one thousand acres of land in one body in Laporte county. The land is crossed by two lines of railroad other than that of the appellant. The Louisville New Albany and Chicago Railway crosses it from north to south, and the Chicago, St. Louis and Pittsburgh Railroad crosses it from east to west. The appellant sought to appropriate a strip for its right of way, crossing the land from northeast to southwest. The necessary steps were taken under the statute; but the award of the arbitrators was unsatisfactory to the appellees. They filed exceptions, the cause was tried by a jury, and resulted in a verdict and judgment in their favor. The only question arising on this appeal grows out of the action of the court in admitting in evidence the testimony of certain witnesses. The land sought to be appropriated was all embraced in three quarter sections, which were described in the act of appropriation.

The exceptions upon which the case was tried were upon the ground of inadequacy of damages, and contained no description of the land, but alleged, as above stated, that it consisted of "about one thousand acres of land in one body."

The testimony admitted by the court, over the objection of the appellant, related to that portion of the land not described in the act of appropriation. The objections were twofold in their character, and were stated by the appellant, in its objection to the introduction of the testimony, as follows:

"Said tracts or parcels of land constitute no part of the particular tract or parcel of land from which the land appropriated is taken, but are each separate and distinct, and cut off from that part of the land out of which the plaintiff's right of way is taken, each by the right of way of an existing railroad, in operation at the time of the taking of the defendants' land by the plaintiff company; and that, therefore, defendants were not entitled to prove or recover any damages for injury thereto; and also, for the reason that there is not any place in the instrument of appropriation, warrant, warrant to, or report of the appraisers, nor in any exception filed by the defendant in this cause, nor in any of the pleadings filed herein, any allegation or claim that any lands situated in said section 16 are affected or damaged by the location of said plaintiff's railroad, or the appropriation herein, and that, therefore, said defendants were not entitled to show or recover for any injury to said tract, section 16, nor was any issue made or tendered thereto."

A similar objection was made to testimony relating to another tract lying in section eight.

Counsel for the appellant concedes that it is the general rule "that all land belonging to one proprietor, in a continuous (or contiguous) body, and which is used together for a common purpose, will be considered one tract, without regard to the government subdivision," but says: "There must, however, be a connected use of the entire land. The land in section 8, west of the Louisville, New Albany and Chicago Railroad, can not be considered as being a continuous part of the main body of appellees' land, because it is, and was, at the time of the construction of appellant's railroad, cut off from all of the other land by the New Albany Railroad, which was an existing railroad in operation at the time of the appropriation of appellees' land. Although this parcel of land had been owned by appellees for many years, they had never used it in connection with their other lands, nor was it capable of being so used. The Louisville, New Albany and Chicago Railroad separated it from the other land. There were no crossings in any way connecting it; and thus, for any practical purpose, it was as much a distinct and separate tract of land as if cut off from the other by a wall similar to the great wall of China."

To sustain the appellant's contention would be to take a question of this character from the jury, and say, as a question of law, that when a farm is crossed by a right of way of a railroad, it becomes and is thereafter two farms instead of one. The rule, applied to the appellees' land as it will be with the appellant's right of way established, would require it...