Chicago & G.S. Ry. Co. v. Jones

• Decision Date: 21 April 1885
• Citation: 103 Ind. 386,6 N.E. 8
• Parties: Chicago & G. S. Ry. Co. v. Jones.
• Court: Indiana Supreme Court

103 Ind. 386

6 N.E. 8

Chicago & G. S. Ry. Co.

v.Jones.¹

Supreme Court of Indiana.

April 21, 1885.

Appeal from Tippecanoe circuit court.

G. W. McDonald, W. D. Wallace, and T. C. Annabal, for appellant.

J. R. Coffroth and T. A. Stuart, for appellee.

Niblack, J.

Clement G. Jones was, on the seventh day of March, 1883, the owner of a tract of land in Warren county, over which the Chicago & Great Southern Railway Company wished to obtain the right of way for its line of railroad, and the parties being unable to agree upon the terms upon which such right of way might be obtained, the railway company, on that day, deposited with the clerk of the Warren circuit court a written instrument of appropriation, particularly describing a strip of ground running across the tract of land in question as the land intended to be appropriated for a right of way, and generally for railroad purposes. On the seventeenth day of the same month, the judge of the Warren circuit court appointed appraisers who made a report assessing Jones' damages at $800. Jones filed exceptions to the report of the appraisers, to which replies were made at the ensuing term of the court last named. A change of venue was then granted to the Tippecanoe circuit court, where, at the second term after the cause had reached that court, the railway company asked leave and proposed, if permitted, to amend the instrument of appropriation theretofore filed by it, by inserting therein, at a specified and appropriate place, the following:

“The said right of way so appropriated as aforesaid to be fenced by said railway company, on either side thereof, with a good and substantial wire fence, consisting of five strands of wire, secured by and fastened to good oak posts set in the ground at proper distance from each other. And the said railway to be constructed in the said right of way with an under-ground passage under the track thereof, fifteen feet in width, giving free, easy, and perpetual access to cattle, hogs, and other stock from each side of the right of way to the opposite field. The said fences and under-crossing to be constructed and always maintained at the expense of said railway company.”

In support of this application one of the directors of the railway company filed his affidavit stating, among other things, that at the time the proceedings to appropriate the right of way were commenced, it was uncertain whether the grades of the line of road to be thereafter adopted would be such as to admit of the construction of a crossing under the track of a depth sufficient to permit the free passage of cattle and other animals through the same; that since the commencement of such proceedings the company had constructed its line of road over Jones' land upon a grade which permitted the making of such an under-crossing, and that such a crossing had been then already begun and partially made; that the company had, also, already procured wire and posts to make a good and substantial wire fence across Jones' land on both sides of its line of road, which it was the intention of the company to erect without unnecessary delay, and to always maintain after its erection; that at the time the issues were closed upon the exceptions filed by Jones to the report of the appraisers, the company did not know that an under-crossing upon the land in controversy was practicable. A counter-affidavit was filed charging that since filing the instrument of appropriation the railway company had mortgaged its road, equipments, and all other property then belonging to it, or thereafter to be acquired, to secure the payment of $2,000,000 and accruing interest. The circuit court thereupon refused to permit the railway company to amend its instrument of appropriation as was proposed. The question as to the amount of damages to which Jones was entitled was then submitted to a jury, the result being a verdict in his favor for the gross sum of $3,488.15, for which, with costs, a judgment of recovery was rendered against the railway company, describing the real estate for which the damages were assessed. To the judgment thus rendered was added the following:

“It is further ordered, adjudged, and decreed by the court, upon failure to pay said damages for the period of thirty days, said defendant, the Chicago & Great Southern Railway Company, its servants, agents, and employes, and the successors and assignees of said defendant, and their servants, agents, and employes, and all persons acting by, through, or under them, or either of them, be, and they and each of them are, forever enjoined and restrained from going upon, using, occupying, or enjoying the said described real estate, or any part thereof, in any way whatever, or for any purpose, until the judgment aforesaid, principal, and interest, shall be fully paid and satisfied.”

Questions are made in argument only upon the refusal of the circuit court to permit an amendment of the instrument of appropriation, and upon the...