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

• Decision Date: 31 March 1903
• Citation: 30 Ind.App. 650,66 N.E. 923
• Parties: CHICAGO & S. E. RY. CO. v. WOOD.
• Court: Indiana Appellate Court

30 Ind.App. 650

66 N.E. 923

CHICAGO & S. E. RY. CO.

v.WOOD.

Appellate Court of Indiana, Division No. 1.

March 31, 1903.

Appeal from Circuit Court, Tipton County; W. W. Mount, Judge.

Action by Augustus C. Wood, as administrator, against the Chicago & Southeastern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. R. Crawford, W. C. Stover, and W. H. Najdowski, for appellant. Roberts & Vestal, for appellee.

ROBINSON, J.

Suit by appellee to recover the cost of a fence erected under the provisions of section 5324, Burns' Rev. St. 1901. The complaint is sufficient, having been amended to comply with the opinion rendered upon the former appeal. Chicago, etc., Ry. Co. v. Vert, 24 Ind. App. 78, 56 N. E. 139. The only question argued is the sufficiency of the evidence to sustain the verdict in appellee's favor. The suit was brought by the abutting landowner, Ann E. Vert; and, upon her death, appellee, as administrator, was substituted.

Construing sections 5323, 5324, Burns' Rev. St. 1901, together, the abutting landowner, in order to charge the road for its cost, must construct the fence on the side of the railroad. This necessarily means that the fence should be built upon the margin, edge, or border of the right of way of the railroad. It should be placed as near as practicable to the line between the right of way and the abutting owner. The right given is statutory, and, that the landowner may recover, he must substantially comply with the statute. People v. Ohio, etc., Ry. Co., 21 Ill. App. 23;Ohio, etc., Ry. Co. v. People, 121 Ill. 483, 13 N. E. 236;Wabash, etc., Ry. Co. v. Zeigler, 108 Ill. 304. The fence was built 21 feet from the center of the railroad track. It is claimed by appellant that the right of way where the fence was erected extended 40 feet from the center of the track; and, as it appears that it was built 21 feet from the center, it was not on the side of the railroad, as required by the statute. The greater portion of the right of way in question was conveyed to the predecessors and grantors of appellant by appellee's decedent, and the deed, made in 1874, conveyed “the right of way on the north half” of certain described land, “forty feet in width from the center line” of the road, “measured on the north of said railroad”; the grantor “to have the privilege of fencing within twenty feet of the center line of said railroad after said railroad is finished for the purpose of cultivation.” This suit was first brought in 1895. The deed conveyed from appellee's decedent to the railroad company a strip 40 feet wide, and vested all the grantor's title in this strip in the grantee. The deed gives the grantor the privilege to erect a fence within 20 feet of the center of the track. The company had title to the whole 40 feet; the grantor simply retaining the privilege to erect a fence within 20 feet of the track, and occupy the outside 20 feet for the purposes of cultivation. If the deed conveyed a strip only 20 feet wide from the track, there is no meaning in the provision reserving to the grantor the privilege of cultivating the outside 20 feet. See Branson v. Studabaker, 133 Ind. 147, 33 N. E. 98. When the first fence was erected there was no statutory requirement that railroads should fence their rights of way. If the title to the outside 20 feet passed by the deed, which it did, appellee can claim that...