Chicago, I. & L. Ry. Co. v. Beisel, No. 18264

• Docket Nº: No. 18264
• Citation: 106 N.E.2d 117, 122 Ind.App. 448
• Case Date: May 23, 1952
• Court: Court of Appeals of Indiana

Page 117

106 N.E.2d 117 122 Ind.App. 448 CHICAGO, INDIANAPOLIS & LOUISVILLE RY. CO.
v.
BEISEL et al. No. 18264. Appellate Court of Indiana, in Banc. May 23, 1952.

[122 Ind.App. 450]

Page 118

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 [122 Ind.App. 451] 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

Page 119

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 [122 Ind.App. 452] 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, [122 Ind.App. 453] 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

Page 120

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 [122 Ind.App. 454] 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,...