Adams v. Pittsburgh, C., C. & St. L. Ry. Co.

Decision Date20 June 1905
Docket NumberNo. 20,461.,20,461.
Citation165 Ind. 648,74 N.E. 991
PartiesADAMS v. PITTSBURGH, C., C. & ST. L. RY. CO. et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Shelby County; Douglas Morris, Judge.

Action by Aurilla V. P. Adams against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and others. From a judgment for plaintiff for less than the relief demanded, she appeals. Affirmed.

Thos. B. Adams, John F. Walker, and Hord & Adams, for appellant. M. Z. Stannard and Carter & Morrison, for appellees.

JORDAN, J.

Appellees have filed a motion to dismiss this appeal, for the alleged reason that appellant has failed to comply with certain rules of this court and with other requirements of appellate procedure. We have concluded, however, to overrule the motion to dismiss, and consider the appeal on its merits.

This action was commenced by appellant against appellees by a complaint of three paragraphs. By the first she sought to secure the abatement of an alleged nuisance, and a recovery of incidental damages. The nuisance in question consisted of an excavation made by appellees in a public highway,known as the “Columbus Gravel Road.” By reason of this excavation she was deprived of ingress to and egress from her lands. The second paragraph is substantially the same as the first, except, in addition, it alleges that appellees constructed or cut ditches on the west and east sides of said gravel road, thereby turning the water which formerly flowed south on the surface of said road to the north. This water formed a pool at a gate which was used as an entrance to appellant's premises, etc. This paragraph alleges that appellant's land has been damaged in the sum of $5,000, for which she demands judgment. The third paragraph contains all of the averments of the second, except that, in addition, it alleges that a street lying immediately north of appellant's land has been obstructed by appellees. This street, as averred, extends 60 rods west, and the east end thereof connects with the public highway. It is charged in this paragraph that the only claim or right that appellees had for making an entry onto the said road and real estate and doing the acts complained of is under and by virtue of an act of the Legislature of the state of Indiana entitled “An act providing for the location, construction and use of lateral railroads, etc., approved April 29, 1869 (Laws 1869, p. 97, c. 46). It is alleged that appellees proceeded under said act to file a petition in the circuit court, setting forth therein the names of the Conrey & Forster Furniture Company, the Conrey & Birely Table Company, the Speigle Furniture Company, and the Hodell Furniture Company; that such proceedings being appointed to assess damages to the defendants named in said petition; that the court confirmed the report made by the commissioners, and assessed the damages in favor of the owners of said real estate, etc.; that plaintiff was not a party in any way to said condemnation proceedings, and the damages which would result to her by reason of cutting down said Columbus gravel road at the point where said lateral railroad crossed said highway, and in making the excavations and removing the earth from her land, were neither assessed by the commissioners, nor agreed upon between her and said defendants. It is averred that appellees filed a petition before the board of commissioners for permission to run said lateral railroad over said gravel road; that no notice was given either to the plaintiff or to the public of the filing of said petition; that the commissioners granted appellees the right to run and build said railroad across said public highway, but did not grant them any right to cut through said highway and made said excavations; that the above and foregoing proceedings were all the authority which the defendants had to do the acts complained of, and plaintiff charges that the said statute is ultra vires, unconstitutional, and invalid, and that all the acts that were done by the defendant thereunder are void. The plaintiff demands as relief under the facts alleged in this paragraph, that the nuisance in controversy be abated by compelling the defendants to fill up said excavations, etc., and that she be awarded damages in the sum of $5,000. A demurrer to each paragraph of the complain was overruled. Appellees then answered in four paragraphs, the first of which was a general denial. Appellant unsuccessfully demurred to the second, third, and fourth paragraphs of the answer. The second paragraph of the answer was addressed to the first paragraph of the complaint. It sets up the facts that appellees the Conrey & Forster Furniture Company, the Conrey & Birely Table Company, the Speigle Furniture Company, and the Hodell Furniture Company are, and have been for many years last past corporations duly engaged in manufacturing furniture at and near the city of Shelbyville Shelby county, Ind., and that these corporations were the owners of real estate upon which buildings and machinery were situated, and which were used in the operation of the factories of said companies. It is alleged that said companies desired to construct a lateral railroad from their factories over certain intervening lands in order to connect the same with the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad. The length of this lateral railroad is less than 10 miles, and all of said intervening lands are situated in said county of Shelby. This paragraph further charges that these companies presented a petition to the Shelby circuit court, and that such proceedings were had therein as resulted in the assessment of damages to property owners, and in appellees being granted the right to construct said lateral railroad over said intervening land. It is alleged that the damages assessed for lands taken for this lateral railroad were paid, and that no appeal has been taken from the judgment and order of the court, and the time allowed for an appeal has expired. It is further disclosed that said lateral railroad was constructed at the expense of &10,000, and that no part of the route over which it passes or is constructed is on any land owned by the plaintiff. This lateral railroad was, under an order made by the board of commissioners of said county, built and constructed across a public highway, the same being a free gravel road. The paragraph in question then proceeds to deny certain facts averred in the first paragraph of the complaint, and to allege and set up facts going to show that certain matters and things therein averred by appellant are not true, and that she would not be damaged in the manner and to the extent alleged. In fact, this paragraph is nothing more than an argumentative denial. The third paragraph of answer sets up facts to establish that appellant is estopped from maintaining her action. The fourth purports to be a partial answer to the complaint, and, so far as it applies, it is virtually the same and of like character and effect as the second paragraph -nothing more than an argumentative denial. Appellant replied to the answer, first, by a general denial; second, by alleging affirmative matter. A demurrer was sustained to the second paragraph of her reply. Upon the issues joined there was a trial by the court, and, on request, a special finding of facts was made and conclusions of law thereon, by which appellant, as her only relief, was awarded damages in the sum of $50 against the Pittsburgh, etc., Railroad Company, the Conrey & Forster Furniture Company, the Conrey & Birely Table Company, the Speigle Furniture Company, the Hodell Furniture Company, and James M. Goodrich, appellees herein. The defendants, other than those above named, were awarded judgment was rendered in favor of appellant for the damages assessed, together with her costs laid out and expended to December 13, 1902. It was adjudged that defendants recover of her their costs laid out and expended subsequent to...

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9 cases
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Collins
    • United States
    • Indiana Supreme Court
    • February 26, 1907
    ...is not presented to this court for consideration under the fifth, sixth, seventh, or eighth assignments of error. Adams v. Pittsburgh, etc., R. Co., 165 Ind. 648, 74 N. E. 991;Pittsburgh, etc., R. Co. v. Town of Walcott, 162 Ind. 399, 401, 69 N. E. 451;Standish v. Bridgewater, 159 Ind. 386,......
  • Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Collins
    • United States
    • Indiana Supreme Court
    • February 26, 1907
    ... ... decision of the lower court brought up by the record and ... assigned as error. The alleged unconstitutionality of the ... statute, upon which this action is founded, is not presented ... to this court for consideration under the fifth, sixth, ... seventh or eighth assignments of error. Adams v ... Pittsburgh, etc., R. Co. (1905), 165 Ind. 648, 74 ... N.E. 991; Pittsburgh, etc., R. Co. v ... [80 N.E. 417] ... Town of Wolcott (1904), 162 Ind. 399, 69 N.E. 451; ... Standish v. Bridgewater (1902), 159 Ind ... 386, 65 N.E. 189 ...           [168 ... Ind. 472] The ... ...
  • State ex rel. Baltimore & S.W.R. Co. v. Daly
    • United States
    • Indiana Supreme Court
    • January 10, 1911
    ...which is merely an argumentative denial. Jeffersonville, etc., Co. v. Riter, 146 Ind. 521-526, 45 N. E. 697;Adams v. Pittsburgh, etc., R. Co., 165 Ind. 648-655, 74 N. E. 991. It cannot be said that the decision of the trial court is not sustained by the evidence or that it is contrary to la......
  • Hamrick v. Hoover
    • United States
    • Indiana Appellate Court
    • March 19, 1908
    ...Exceptions to conclusions of law admit that the facts within the issues have been correctly and fully found. Adams v. Pittsburg, etc., Ry. Co., 165 Ind. 648, 74 N. E. 991;Dinius v. Lahr, 36 Ind. App. 425, 74 N. E. 1033. Upon this admission appellant argues that the findings bring this case ......
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