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

• Citation: 35 Ind.App. 251,71 N.E. 926
• Decision Date: 06 October 1904
• Docket Number: No. 4,832.,4,832.
• Court: Indiana Appellate Court
• Parties: CHICAGO & S. E. RY. CO. v. McEWEN.

35 Ind.App. 251

71 N.E. 926

CHICAGO & S. E. RY. CO.

v.McEWEN.

No. 4,832.^*

Appellate Court of Indiana, Division No. 2.

Oct. 6, 1904.

Appeal from Circuit Court, Parke County; A. F. White, Judge.

Action by Mary C. McEwen against the Chicago & Southeastern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. C. Stover, for appellant. Elwood Hunt and D. P. Williams, for appellee.

COMSTOCK, J.

Appellee filed her complaint against appellant in three paragraphs. In the first and third she sued for breach of covenants contained in a deed and contract made part thereof for the right of way across appellee's lands for the Midland Railway Company's track, appellant being the successor of said Midland Company. The second paragraph is for stock killed and property destroyed, but, as no finding or recovery was had thereon, further reference to it is unnecessary. A demurrer to each paragraph of the complaint was overruled, and answer of general denial filed, and special finding of facts and conclusions of law against appellant stated. Appellant's motion for a new trial was overruled, and judgment rendered in favor of appellee on the conclusions of law for $1,510.87. Appellant contends upon this appeal that the court erred (1) in overruling its demurrer to the complaint; (2) in its conclusions of law; (3) in refusing a new trial (a) because the damages assessed were excessive, (b) request of appellant to provide an efficient stenographer to take down the evidence at the trial was refused, (c) the decision of the court was contrary to law.

The facts specially found are substantially the same as those alleged in the first and third paragraphs, namely: On the 7th day of April, 1891, the plaintiff, Mary C. McEwen, was the owner in fee of a tract of land in Parke county, Ind., containing 240 acres. On said day she conveyed by warranty deed to the Midland Railway Company a strip of ground 40 feet in width across and over the same, containing 3 acres, more or less. The consideration for said right of way was the sum of $1,300 and the performance by the said Midland Company as a part of the consideration for said right of way of the stipulations, conditions, and covenants agreed by it to be performed, of a certain contract and agreement in writing, which written agreement was of even date with said deed. By the terms of said written contract said railway company, as a part of said consideration, agreed with the plaintiff, for itself, its successors and assigns, and was, so soon as the railway company should have laid its track over and across the right of way described in said deed, to erect and maintain in good repair, and to rebuild when necessary, at its own expense, but for the benefit of plaintiff, along both sides of said right of way on the line between said right of way and said adjacent lands of plaintiff, a good and substantial board fence sufficient to turn all kinds of stock, the manner in which said fence should be constructed being particularly described. That said company agreed with plaintiff for itself, its successors and assigns, that it would put in and maintain in good repair, and rebuild when necessary, all farm crossings across said right of way for the convenience of plaintiff as might be deemed suitable and necessary by her, and at the points and places she might designate, and within a reasonable time after such selection. The said crossings were to be constructed in connection with gates and cattle guards. The gates to be hung on good hinges, and to have strong hooks to fasten them with, and to be set opposite each other. Good fences forming wings or guards were to be built from each side of each gate to the track of the railroad; the cattle guards to be placed at each end of the crossing so as to prevent stock from running on the track in using the crossing. The whole to be so arranged as to form a safe, easy, and commodious farm crossing. Said Midland Railway Company further agreed with plaintiff for itself, its successors and assigns, to put in and maintain in good repair, and rebuild when necessary, at its own expense, an underground passageway for stock and cattle at a convenient place to be selected by plaintiff, and to put the same in within a reasonable time after such selection was made by her. It further agreed to construct ditches and culverts along said right of way so as to render the adjacent lands of the plaintiff free from any damage from water, and to make and maintain a good and substantial gate to said underground passageway. It further agreed with the plaintiff for itself, its successors and assigns, to erect a good and substantial cattle guard at the Rockville and Bellmore gravel roads and erect and maintain a good, substantial gate just east of the track on the Bellmore gravel road to take the place of a gate then used at that point. All of said farm crossings, underground passageways, fences, gates, and cattle guards were to be constructed and maintained by said company in a good, workmanlike, substantial, safe, and convenient manner. Said company agreed with plaintiff for itself, its successors and assigns, to put in a switch track and all usual and necessary appurtenances at such place or point and on such ground as might be selected by plaintiff, free from any cost to her, and within a reasonable time after such selection. Said railway company agreed with plaintiff, for itself, its successors and assigns, to pay her all damages which it might do to the wheat crop then growing on said land, and for any damage it might do at any time to stock or premises in constructing or operating its road, and that the material of all fences on said premises should be the property of said plaintiff, and to furnish plaintiff a life pass on said road so soon as trains should run over said road. It was agreed by and between the parties to said contract that said written contract should be considered in connection with the provisions and conditions of said deed, and that on the failure of said railway company, its successors or assigns, to comply with any or all of the covenants of said contract and deed, said company, its successors or assigns should be liable in damages therefor in the sum of $1,000. That said deed and written contract were duly executed on said 7th day of April, 1891. That said contract was duly recorded in the properrecord in the recorder's office of Parke county, Ind., on the 29th of May, 1891. That said railway company entered upon said right of way across the lands of plaintiff, took possession of same, began constructing the track upon the same, and had nearly completed the construction of such track by the 20th of October, 1891. That on said 20th day of October, 1891, said Midland Company, by a proper deed of conveyance duly executed, sold and transferred all its said railway and railway property, including said right of way over said lands, to the defendant, the Chicago & Southeastern Railway Company. That said defendant took said deed of conveyance with full knowledge of the terms, conditions, and covenants contained in the said deed and written contract between the plaintiff and said Midland Railway Company dated April 7, 1891. That shortly after said conveyance of said railway and said right of way to the defendant, to wit, in the year 1892, said defendant completed the construction of said railway track along and upon said right of way, and extended and completed said railway to the city of Brazil from the city of Anderson, Ind., and since said time has been in possession thereof and controlling and operating same. That in 1891, and prior to October 20th of said year, the plaintiff designated and pointed out to said Midland Railway Company the places at which she desired farm crossings to be erected in accordance with said contract; also the place under said track where she desired said company to make an underground passway in accordance with said contract. In 1892 she in like manner pointed out and designated to said defendant the same places where she desired farm crossings and underground passway to be made by said defendant in accordance with said contract. In 1891 said Midland Company put at the farm crossings designated, on the ties of said track, some heavy plank for crossings, but they were not spiked or nailed down nor otherwise permanently secured; they were not convenient nor suitable farm crossings, but temporary, and inconvenient for crossings by tenants and others on said farm. In 1899 plaintiff...