Chicago, I. & L. Ry. Co. v. Beisel, 18264

Decision Date23 May 1952
Docket NumberNo. 18264,18264
Citation106 N.E.2d 117,122 Ind.App. 448
CourtIndiana Appellate Court
PartiesCHICAGO, INDIANAPOLIS & LOUISVILLE RY. CO. v. BEISEL et al.

J. Arden Rearick, Lafayette, Harker & Irwin, Frankfort, for appellant.

Robert K. Ryan, Frankfort, for appellee.

BOWEN, Chief Judge.

This is an appeal from a judgment in an action for an injunction in which the appellees sought to enjoin the appellant from barring or destroying an underpass and cattle crossing located beneath the road bed and rails of the appellant in Clinton County, Indiana. The complaint alleged that the defendant threatened to remove the underpass and to replace the same with a culvert or tile suitable only for the purpose of drainage and that such acts would destroy the use of said underpass.

The cause was submitted to the court for trial, and the court found for the appellant and against said appellees, Maurice E. Beisel and Edith E. Beisel, and against the appellant and for appellees, Emmett Beisel and Geraldine Chittick.

The appellee plaintiffs, Emmett Beisel and Geraldine Chittick, for whom the court found, were the owners of an interest in the real estate on the west side of the railroad adjoining the underpass in question by reason of inheritance from the estate of Henry D. Beisel, and by virtue of Item 10 of his will, subject to the life estates of Maurice E. Beisel, the son of Henry D. Beisel, and his wife, Edith Beisel. The land on the east and west sides of the railroad tracks adjoining the underpass in question was originally owned by Henry D. Beisel, and he devised such real estate by the terms of Item 10 and Item 11 of his will which are as follows:

'Item 10:--I give and devise to my son, Maurice E. Beisel, the same to have and to hold for and during the period of his natural life, the following described real estate in Clinton County, in the State of Indiana, to-wit:

'All that part of the south half of the southwest quarter of Section 8, in township 22 north, range one west that lies west of the right of way of the Chicago, Indianapolis, and Louisville Railway Company, containing 60 acres, more or less.

'At the death of my said son, Maurice E. Beisel, it is my will, should his wife, Edith Beisel, be then living, that she have and take said above described real estate, and I hereby give and devise the same to said Edith Beisel for and during the period of her natural life. And at the death of said Edith Beisel, should she survive my said son, Maurice E. Beisel, or at his decease, should he survive his said wife, then it is my will that said real estate go to and I hereby give and devise the same share and share alike to the children of my said son, Maurice E. Beisel, living at the death of the survivor of said Maurice E. Beisel and his said wife, Edith Beisel, share and share alike, and should any of the children of my son, Maurice E. Beisel, and his wife, Edith Beisel, die prior to such time leaving a descendant or descendants surviving, then the descendant of such deceased child or children shall take the share or shares their parent or parents would have taken if living.

'And in the event my said son, Maurice E. Beisel, and his said wife, Edith Beisel, should die leaving no child or children them surviving, nor the descendants of any deceased child or children, then it is my will that the real estate in this item described shall be sold and I hereby direct my executor to sell the same and the proceeds therefrom shall be divided share and share alike among my grandchildren living at said time, and the descendants of such as may have died prior thereto.'

'Item 11:--I give and devise to my son, Bertice C. Beisel, the same to have and to hold for and during the period of his natural life only the following described real estate in Clinton County, in the State of Indiana, to-wit:

'All that part of the south half of the southwest quarter of Section 8 in Township 22 North, Range 1 West, lying east of the right of said Chicago, Indianapolis, & Louisville Railway Company, containing 18 acres, more or less, and containing in all 58 acres, more or less.

'At the death of my said son, should his wife, Emma Beisel, survive him, it is my will that said real estate go to and I hereby give and devise the same to Emma Beisel, wife of my said son, Bertice C. Beisel, the same to have and to hold for and during the period of her natural life. And at the death of said Emma Beisel, should she survive my said son, Bertice C. Beisel, or at his death, in the event he should survive his said wife, Emma, I give and devise said real estate to the child or children of said Bertice C. Beisel, and his wife, Emma Beisel, share and share alike. My said son, Bertice C. Beisel and his wife, Emma Beisel, now have no child or children and in the event no child or children should be born to my said son and wife, and no such child nor the descendants of any such child should survive my said son and his wife, then it is my will that said real estate, at the death of the survivor of my son, Bertice C. Beisel and his wife, Emma, shall be sold by my executor hereinafter named and the proceeds thereof shall be divided share and share alike among my grandchildren living at such time and the descendants of such as may have died prior thereto share and share alike.'

In 1881, the said Henry D. Beisel conveyed the title to a strip of land through farm lands at that time owned by him to appellant's predecessor, which deed contained the following words after the granting clause: 'Accepting and reserving for the use of the grantor the timber thereon and the grantee to build and maintain fences, and crossings, and cattle guards.'

Pursuant to the covenant with reference to crossings and cattle guards, in 1906, a stone box structure was constructed by appellant beneath its right-of-way which was sufficient to permit the passing of cattle and livestock from the east side to the west side of the railroad, and adjoining the two tracts of land originally owned by Henry D. Beisel. Henry D. Beisel died testate on December 30, 1936. Appellee, Maurice E. Beisel, is a son of Henry D. Beisel, and appellee, Edith Beisel, is the wife of Maurice E. Beisel, and the appellees, Emmett Beisel and Geraldine Chittick, are the children of appellees, Maurice E. Beisel and Edith Beisel.

A covenant in a deed conveying a right-of-way to a railroad company whereby the company is obligated to maintain a means of crossing, runs with the land and inures to the convenantee's successor. Pittsburgh, etc., R. Co. v. Kearns, 1914, 58 Ind.App. 694, 108 N.E. 873; Pittsburgh etc., R. Co. v. Kearns, 1921 (Transferred) 191 Ind. 1, 128 N.E. 42; Pittsburgh, etc., R. Co. v. Wilson, 1904, 34 Ind.App. 324, 72 N.E. 666; Pittsburgh etc., R. Co. v. Wilson, 1910, 46 Ind.App. 444, 91 N.E. 725 (Retrial); Chicago, etc., R. Co. v. McEwen, 1904, 35 Ind.App. 251, 71 N.E. 926.

While the authorities are divided on the question, this state adheres to a qualification and limitation of this rule to the effect that the easements for farm crossings across a railway's right-of-way that are created by covenants contained in conveyance by virtue of which railroad companies hold such right-of-ways, are not transmitted to grantees of separate tracts in case there is a severance of the ownership of divided farm land. Vandalia Railway Co. v. Furnas, 1914, 182 Ind. 306, 106 N.E. 401.

The legal proposition which we are called upon to determine by reason of the assignments of error is whether the plaintiffs have such an interest in the two tracts on each side of the railroad as to entitle them to the relief sought in the complaint. It is clear that the appellees, Maurice Beisel and Edith Beisel, against whom the court rendered judgment, had no interest whatsoever in the land described in Item 11 of Henry D. Beisel's will and lying to the east of appellant's right-of-way. Therefore, they cannot predicate any rights as to crossings and cattle guards upon the covenant contained in the deed given by Henry D. Beisel to the appellant railroad company's predecessor.

The question remains then whether appellees, Emmett Beisel and Geraldine Chittick, have such an interest in the real estate located on both sides of such railroad track, by reason of the provisions of Item 10 and Item 11 of the will of Henry D. Beisel, to entitle them to the benefit of the covenant as to crossings and cattle guards contained in the deed of Henry D. Beisel by which he conveyed such property to appellant's predecessor in title.

The appellant contends that Henry D. Beisel for the purpose of inheritance established in his last will and testament two separate and distinct inheritances in the lands that had been owned by him. That the lands lying to the west of appellant's right-of-way comprised one distinct inheritance. That the field lying to the east of appellant's right-of-way was originally a part of the tract lying to the west of appellant's right-of-way, but as a matter of equalizing the inheritance in the will, said field to the east of appellant's right-of-way was severed from the tracts lying to the west of appellant's right-of-way and became a part and was included with other lands owned by Henry D. Beisel which were described and devised in Item 11 of the will of Henry D. Beisel in a second and separate inheritance.

The appellant contends that the interest of appellees, Emmett Beisel and Geraldine Chittick, in the real estate in question, is a contingent remainder, and that it is not such an interest in such real estate, as to entitle them to the benefits of the covenant in the deed conveying the right-of-way.

The appellees, on the other hand, contend that there has been no such severance of title of the two tracts lying on both sides of the railroad as would extinguish the easement and bar the appellees, Emmett Beisel and Geraldine Chittick, from the covenant contained in the deed as to the railroad's underpass.

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