Chicago & Southeastern Railway Company v. Vert

• Decision Date: 02 February 1900
• Docket Number: 3,051
• Citation: 56 N.E. 139,24 Ind.App. 78
• Parties: THE CHICAGO AND SOUTHEASTERN RAILWAY COMPANY v. VERT
• Court: Indiana Appellate Court

56 N.E. 139

24 Ind.App. 78

THE CHICAGO AND SOUTHEASTERN RAILWAY COMPANY v. VERT

No. 3,051

Court of Appeals of Indiana

February 2, 1900

From the Tipton Circuit Court.

Reversed.

W. R Crawford, U. C. Stover and W. R. Oglebay, for appellant.

J. A Roberts and M. Vestal, for appellee.

OPINION

COMSTOCK, J.

This action was brought under §§ 5323, 5324 Burns 1894, 4098a, 4098b Horner 1897, requiring railway companies to erect fences along their right of way. The cause was put at issue, submitted to the court for trial, and a judgment rendered in favor of appellee for $ 120, principal and interest, and the further sum of $ 35 attorney's fees.

The errors assigned are: (1) That the court erred in overruling the demurrer to the amended complaint; (2) in overruling appellant's motion for a new trial.

The objections urged to the complaint are: (1) That it does not aver that that part of appellant's road in Hamilton county abutting the land of appellee was completed and in operation for twelve months before the giving of notice; (2) it fails to show that the right of way abutting appellee's land is not "within such portions of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks"; (3) it does not show that the notice required by the statute to be given was served upon this appellant.

The portion of the complaint to be considered in passing upon the first objection is as follows: "That said defendant is a railway corporation, engaged in the business of owning controlling, and operating a line of railroad into, through, and across the said county of Hamilton; that said railway was completed many years ago, and the part thereof extending through said county of Hamilton has been completed and in operation for more than twenty years, and the same has been so operated by defendant company for more than two years; that the plaintiff is the owner in fee simple of the north half of the northwest quarter of section five, in township eighteen north, of range four east, situate in said county of Hamilton, in the State of Indiana; that said real estate abuts upon the right of way of said railway in said county; that said land abutting said right of way, at and for more than one year prior to the building of the fence, and the giving of the notices as herein averred, has been, and is, improved and inclosed land--that is to say, said land has been inclosed on all sides, except next to said right of way, during all of said time, the same having been so inclosed and so in a state of cultivation for more than one year prior to said first notice, as herein averred; that said defendant neglected and refused to inclose its right of way abutting said lands, or to build a fence, as required by law, for more than six months after the completion and the beginning of the operation of said railway, and for more than six months after said land had been inclosed on three sides, as aforesaid; that said railway right of way through and along plaintiff's said lands was not fenced on the 13th day of April, 1885, when the act of the General Assembly of said State requiring such fencing went into force, and the same was not fenced for more than twelve months after such act went into effect, and the same has not been fenced since said time...