Chicago & S.E. Ry. Co. v. Grantham

• Decision Date: 06 October 1905
• Docket Number: No. 20,550.,20,550.
• Citation: 75 N.E. 265,165 Ind. 279
• Parties: CHICAGO & S. E. RY. CO. et al. v. GRANTHAM.
• Court: Indiana Supreme Court

165 Ind. 279

75 N.E. 265

CHICAGO & S. E. RY. CO. et al.

v.GRANTHAM.

No. 20,550.

Supreme Court of Indiana.

Oct. 6, 1905.

Appeal from Circuit Court, Clinton County; Samuel R. Artman, Special Judge.

Action by Charles W. Grantham, administrator, against the Chicago & Southeastern Railway Company and others. Judgment for plaintiff, and defendant railway company and defendant Davis, trustee, appeal. Transferred from Appellate Court under Burns' Ann. St 1901, § 1337u (Acts 1901, p. 590). Appeal dismissed as to Davis, and judgment affirmed.

A. C. Harris and U. C. Stover, for appellants. Clodfelter & Fine and T. E. Ballard, for appellee.

MONKS, C. J.

This action was brought on July 26, 1901, by Wesley Grantham against appellant railroad company for the assessment of damages for land appropriated for railroad purposes. The Metropolitan Trust Company, Theodore P. Davis, trustee, and the Central Trust Company, were made parties defendant; it being alleged in the application that “they each claim some right, title, and interest in the strip of land described, the exact nature of which is unknown to this plaintiff, and that said claim of each of said defendants is unfounded and without right. Elizabeth A. Messick is also made a party defendant to answer as to any interest she may have in the matter alleged.” Elizabeth A. Messick filed a disclaimer of any interest in the cause of action set forth in the complaint. Final judgment for damages was rendered in favor of the plaintiff, Wesley Grantham. The only errors assigned are by the railroad company and Theodore P. Davis, trustee.

Appellee, by verified motion to dismiss this appeal, shows as to appellant Davis, trustee, that he and the Metropolitan Trust Company were made parties defendant in the court below to answer as to their interest in the real estate in controversy; that the only interest they claimed in said real estate was under and by virtue of a deed of trust for all of the property rights and franchises of said appellant railway company, executed to them as trustees to secure certain bonds described therein; that since the rendition of final judgment by the court below in this cause said trust deed and all the bonds secured thereby have been fully paid and satisfied by the sale of all of said railroad property under a decree of foreclosure of said trust deed, and said trust company and Davis, trustee, no longer have any interest in the matters in controversy in this action. It is well settled that, when a party to an appeal transfers or otherwise loses his interest in the subject-matter in controversy, the appeal will be dismissed as to him, when the fact is brought to the attentionof the appellate tribunal. Stauffer v. Salimonie, etc., Co., 147 Ind. 71, 72, 73, 46 N. E. 342;Faucher v. Grass, 60 Iowa, 505, 15 N. W. 302; 2 Cyc. 781. The appeal as to Davis, trustee, must therefore be dismissed.

The only questions left for determination are those presented by appellant railroad company. It appears from the record that on and prior to November 21, 1887, one Elizabeth A. Messick was the owner in fee simple and in the possession of a farm of 182 acres, described in the complaint in this action, in Montgomery county, Ind., and that prior to said day, and while said Elizabeth A. Messick was the owner and in the possession of said real estate, the Midland Railway Company, a corporation organized under the laws of this state, entered upon said real estate and proceeded to construct a railroad across the same, and on November 21, 1887, said Elizabeth A. Messick brought suit against said Midland Railway Company to quiet her title in and to that part of said real estate so entered upon and occupied by said railway company; the same being a strip 80 feet wide across said 182 acres of land. On May 16, 1892, she obtained judgment in said action against said railway company quieting the title to said real estate in her. On October 30, 1890, while said suit to quiet title was pending, said Midland Railway Company by deed conveyed all its property and franchises to appellant, the Chicago & Southeastern Railway Company, a corporation organized under the laws of this state. On February 1, 1893, the said Elizabeth A. Messick sold, and by warranty deed, in which her husband joined, conveyed, said 182 acres of land to Wesley Grantham. At the time the deed was so executed to said Wesley Grantham the appellant railway company was operating a railroad over and upon the part of said real estate in controversy as a common carrier. In March, 1893, said Grantham, after the conveyance of said land to him, commenced an action in the Montgomery circuit court against the appellant railway company to recover possession of the part of said real estate over and upon which said railroad was being operated; and on December 10, 1894, he recovered judgment for possession of said real estate. On January 1, 1901, the sheriff of Montgomery county, under writ issued on said judgment, put said Grantham in possession of said real estate and made his return on said writ accordingly. Afterwards, on January 19, 1901, while said Grantham was in possession of said real estate, the appellant railway company entered upon said real estate, tore down and removed his fences, and constructed a railroad track over and upon said real estate, and ran its cars and operated a railroad over the same, and when this action was commenced claimed and used the real estate in controversy as a part of its right of way. Said entry was made upon said real estate without the consent of said Grantham, and without making or tendering him any compensation or damages.

In one of its exceptions to the award, appellant railway company alleged in effect that in 1873, the Anderson, Lebanon & St. Louis Railroad Company, a corporation organized under the laws of this state, located and graded a continuous roadbed from the city of Anderson, Ind., to the town of Waveland, Ind.; that a part of said continuous roadbed was constructed upon the strip of real estate in controversy, the same being then owned in fee simple by and in the possession of Thomas H. Messick as a part of said farm of 182 acres; that in 1874 said Anderson, Lebanon & St. Louis Railroad Company paid said Thomas H. Messick the amount of damages for said right of way as fixed by arbitrators selected by said parties, which amount said Messick received in full payment and satisfaction thereof; that afterwards, in 1885, said railroad and its franchises and property were sold and conveyed under a decree of foreclosure, to which Thomas H. Messick was a party, to the said Midland Railway Company, a corporation organized under the laws of this state; and that afterwards, on October 30, 1890, said Midland Railway Company sold and conveyed its said railroad and all of its property and franchises to appellant railway company, and it owns and operates the same as the successor of the Anderson, Lebanon & St. Louis Railroad Company and the Midland Railway Company. The trial court sustained a demurrer for want of facts to said exception, and sustained objections to all evidence tending to show that appellant railway company, or those under whom it claims, had any interest or right in or to the real estate in controversy prior to the rendition of said judgments quieting title and for possession, upon the theory that the rights of Wesley Grantham, plaintiff in the court below, were conclusively established by said judgments, and appellant railway company was estopped thereby from asserting any right, title, or interest in the real estate in controversy prior to the rendition of said judgments. This theory was correct. It was alleged in the complaint of Elizabeth A. Messick against said Midland Railway Company, filed November 21, 1887, that she was the owner in fee simple of the tract of land in controversy, and that said railway company claimed some title to or interest therein adverse to her, which claim she averred was groundless and unfounded, and a cloud upon her title, and prayed for a judgment quieting her title to the same. Said railway company appeared and filed an answer in two paragraphs. One paragraph was a general denial, and the other alleged new matter by way of confession and avoidance; it being substantially the same in effect as the matter alleged in the said appellant railwaycompany's sixth exception to the award above set out. A reply was filed, and upon the issues so formed the cause was tried by the court and a decree rendered, on May 16, 1892, that said railroad company had no right, title, or interest in said real estate, that its claim therein was unjust and unfounded, that Elizabeth A. Messick was the owner thereof in fee simple, and that the title in fee simple thereto be forever quieted in her. It was alleged in the complaint of Grantham against appellant railway company, filed in March, 1893, for possession of the real estate in controversy, that he was the owner in fee simple and entitled to the immediate possession of the real estate in controversy, and that appellant railway company wrongfully and unlawfully kept him out of possession thereof; and it prayed judgment that he recover possession thereof. Appellant railway company appeared to said action and filed two paragraphs of answer. One of said paragraphs of answer was a general denial, and the other alleged new matter by way of confession and avoidance, being substantially the same in effect as the matter alleged in the railway company's sixth exception to the award as above set out. The cause was tried by the court, and...