Cleveland, C., C. & St. L. Ry. Co. v. Doan

• Decision Date: 28 March 1911
• Docket Number: No. 7,166.,7,166.
• Citation: 94 N.E. 598,47 Ind.App. 322
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. DOAN.

47 Ind.App. 322

94 N.E. 598

CLEVELAND, C., C. & ST. L. RY. CO.

v.DOAN.

No. 7,166.

Appellate Court of Indiana, Division No. 2.

March 28, 1911.

Appeal from Circuit Court, Putnam County; J. M. Rawley, Judge.

Action by Joseph J. Doan against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

F. L. Littleton, E??oe & Pattison, L. J. Hackney, C. C. Matson, and T. C. Grooms, for appellant. G. E. Easley and S. A. Hays, for appellee.

ADAMS, J.

Action by the appellee against the appellant to recover damages for alleged trespass. The complaint is in two paragraphs. In the first paragraph the appellee alleges: That the appellant is a corporation organized under the laws of the state of Indiana, and for many years has owned and operated a line of railroad from the city of Indianapolis, Ind., to the city of St. Louis, Mo. That the appellee is the owner of a farm of 200 acres, situate in Hendricks county, Ind., subject to an easement in favor of the appellant, said easement being in a strip of land 75 feet wide and 1,380 feet in length, and from zero to about 30 feet in depth, which said easement was acquired by deed of conveyance on May 14, 1906; also, subject to an easement across said land owned by the appellant, acquired by the exercise of the right of eminent domain in the Hendricks circuit court on the 15th day of May, 1869, by the Indianapolis & St. Louis Railway Company, of which appellant company is the successor. A copy of said proceedings and the map and profile, filed on the 7th day of May, 1869, are also made part of the complaint and set out as exhibits. “That, by virtue of said proceedings, the said defendant railway company acquired an easement in and to a strip of land on each side of the center line of said railroad, 49 1/2 feet wide, making the entire width 99 feet, and running in a southwesterly direction through said tract, being about 2,788 feet long, and containing 6 33/1OO acres; said strip being from zero to about 16 feet in depth, as shown by the map and profile in said cause.” The alleged trespass is charged in the following words: “The plaintiff alleges and says that the defendant has unlawfully entered upon the real estate of this plaintiff, and is removing the earth, rock, and gravel, underneath the easement acquired by said defendant company, as set forth in Exhibit B, from zero to about 30 feet in depth, and 99 feet in width, and for a distance of 2,788 feet, and will continue to remove said earth, rock, and gravel of said plaintiff, if not restrained by this court, taking and transferring said earth, rock, and gravel entirely away from the lands of this plaintiff, and depositing the same upon other lands of the defendant, and wrongfully converting and using the same for the purpose of embankments and fills and wrongfully converting to the use and benefit of this defendant, to the damage of this plaintiff.” The complaint then states more in detail the nature and extent of the injury which will result to the lands of the appellee by reason of the alleged trespass, and says that the appellant has not taken the necessary steps in such cases made and provided by the statutes of Indiana, either by purchase or by the exercise of the right of eminent domain, to acquire from the appellee title to said real estate, or in any manner compensating or offering to compensate appellee for the same. The second paragraph of complaint is substantially the same as the first, except that the map and profile of the 75-foot strip acquired by deed, filed on the 8th day of December, 1905, is shown as an exhibit, and the damages claimed are set out more fully than in the first paragraph. Appellant demurred to each paragraph of the complaint for want of facts sufficient to constitute a cause of action, which demurrers were overruled. A supplemental complaint was also filed, subsequent to the excavations made by the appellant, in which special and additional damages are claimed. The appellant answered in four paragraphs, and also filed a motion to strike out certain parts of the supplemental complaint, which motion was overruled. Upon issues thus formed, the cause was submitted to the court, resulting in a finding and judgment for the appellee. The ruling of the court upon demurrers and upon the motion to strike out, together with the overruling of appellant's motion for a new trial, are separately assigned as error, and relied on for reversal in this court.

It is the settled law in Indiana that a railroad company, in the exercise of the right of eminent domain, acquires but an easement in the lands taken for a public use. Quick v. Taylor, 113 Ind. 540, 16 N. E. 588; Railroad Company v. Geisel, 119 Ind. 77, 21 N. E. 470;Chicago Ry. Co. v. Huncheon, 130 Ind. 529, 30 N. E. 636.

The error assigned on the overruling of the motion to strike out part of the supplemental complaint is not well taken. The overruling of a motion to strike out parts of pleadings has been held not to constitute available error on appeal. Brown v. Summers, 91 Ind. 151;Zimmerman v. Gaumer, 152 Ind. 552-555, 53 N. E. 829;Pfau v. State, 148 Ind. 539, 542, 543, 47 N. E. 927;Petree v. Brotherton, 133 Ind. 692, 695, 32 N. E. 300.

It is urged by the appellant that the complaint fails to state a cause of action, for the reason that it contains no averment that the railroad was constructed upon the grade shown by the profile. While there is no direct averment to this effect, it is alleged in the complaint that, by virtue of the proceedings in condemnation, the appellant acquired an easement in a strip of land 99 feet wide, and 2,788 feet long; said strip being from zero to about 16 feet in depth, as shown by the map and profile in said cause. While this is not an averment that the railroad was constructed as shown by the map and profile, it does show that the right or easement which the appellant acquired was to a depth of 16 feet, and, as the trespass complained of relates to excavations made below the 16-foot line, we think each paragraph of the complaint stated a cause of action.

There seems to be no difference between the parties as to their rights in the 75-foot strip of land acquired by deed. It was understood by both parties at the time of the execution of the deed that there should be a cut of 30 feet, and this is shown by the map and profile. The whole difference arises over the right of the appellant to excavate on the 99-foot strip acquired by condemnation proceedings in 1869 to a greater depth than 16 feet. If the filing of the map and profile showing the width of the tract claimed, and the depth of the cut, formed the basis of the damages assessed, and was a part of the...