Clawson v. Chicago, & Great Southern Railway Co.
| Decision Date | 19 April 1884 |
| Docket Number | 11,316 |
| Citation | 95 Ind. 152 |
| Parties | Clawson, Township Trustee, v. The Chicago and Great Southern Railway Company |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
The judgment is affirmed, with costs.
T. F Davidson and W. B. Durborrow, for appellant.
In this case the appellant, Clawson, the plaintiff below alleged in his complaint that he was the trustee of Warren civil township, in Warren county, and the appellee was a corporation organized under the laws of this State, and was then engaged in constructing its line of railroad in and through Warren township; that the board of commissioners of Warren county, at its March term, upon the petition of Wesley Waldriss et al., located and established, and ordered to be opened and kept in repair, a certain highway in Warren township, particularly described in appellant's complaint; that such highway was laid out and opened in compliance with law, and had been used since that time as a public highway, and, as such, was under the control of the appellant, as trustee of said township. The appellant further averred that the appellee was constructing its railway at and in Warren township, over and against the aforesaid public highway, and in constructing such railway great masses of dirt, boulders, stone and brush were being thrown upon such highway, rendering the same impassable and of no use to the public; that the appellee was constructing, and, if not enjoined, would continue to construct its railway along and on top of the aforesaid public highway, and by grading and filling, and by laying dirt, stone and brush on top of such highway, were rendering the same impassable, so that the public could not use it without great personal danger, and danger to animals driven thereon.
And the appellant further averred, that, as the trustee of Warren township, he made a demand upon the appellee's superintendent, workmen and contractors, and at the appellee's office, but the appellee's employees, in a rude, insolent and angry manner, refused, and had since refused, to comply with the demand made upon them to cease obstructing said highway; that the appellee had no right in and on said highway, for the uses to which it was being put for constructing its railway; and that the appellee had never, in any way, acquired the right to enter upon or use said highway, for the purposes of its railroad, or otherwise. Wherefore the appellant prayed for a perpetual injunction, etc.
The cause was put at issue and tried by the court, and a finding was made for the appellee; and, over the appellant's motion for a new trial, the court rendered judgment against him for the appellee's costs.
In this court, the appellant's learned counsel first complain, in argument, of an alleged error of the court in overruling his demurrer to the second paragraph of appellee's answer. In this paragraph of its answer, the appellee alleged that, in the construction of its line of railway over, across and along said highway, and in making such cuttings and embankments for its railway, it became most expedient for the appellee, in order to make said highway more easy of ascent and descent, and safe for travel, to take additional lands bordering along said highway whereon to construct said highway; all of which the appellee had done, and had constructed the highway on such new line and the same had been...
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