Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Griswold
| Decision Date | 27 March 1912 |
| Docket Number | 7,503 |
| Parties | THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. GRISWOLD |
| Court | Indiana Appellate Court |
Rehearing denied June 28, 1912. Transfer denied November 27 1912.
From Hendricks Circuit Court; J. L. Clark, Judge.
Action by James T. Griswold against The Cleveland, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed conditionally.
Solon A. Enloe, George T. Pattison and Frank L. Littleton, for appellant.
Brill & Harvey and Spencer & Spencer, for appellee.
This action was instituted by appellee against appellant, to recover damages on account of a trespass on the lands of appellee in changing the grade of a track on the old right of way of appellant across the lands of appellee, and involving the destruction of a subway and drainage system on said lands.
The complaint was in four paragraphs, a demurrer to each of which was overruled, and exception saved by appellant. The only answer was a general denial.
The case was tried before a jury, which found for appellee in the sum of $ 5,000. Answers to interrogatories were filed with the verdict, and on motion of appellee said amount of the verdict was reduced to $ 4,500, for which sum judgment was rendered after a motion for new trial had been overruled.
Appellant relies on the following errors: (1) In overruling separate demurrers to the first, second, third and fourth paragraphs of the amended complaint; (2) in overruling appellant's motion for a new trial.
Omitting the formal parts, appellee's first paragraph of amended complaint alleged, in substance, that appellant's railroad runs almost due east and west near the center of and through a 127-acre tract of real estate belonging to appellee, situated in Hendricks county, Indiana; that said real estate is used as one farm, with buildings thereon suitable for farming purposes, "consisting of a dwelling-house, stock barns, hog houses and other necessary buildings; that said farm is a grain and stock farm in a high state of cultivation; that when appellant and its predecessors acquired said right of way and constructed its railroad thereon, John N. Griswold, father of appellee, owned said farm, and he then reserved for the use of said real estate for himself, his heirs and assigns, a perpetual right to a passageway under said railroad track through a large wooden culvert or subway, ten feet in width, and six feet in height up to the superstructure, which was not to be reduced in width to less than eight feet; that said passageway permitted the appellee and his employes and his stock to pass north and south from one side of said farm to the other under said railroad tracks and across said right of way "without interruption or inconvenience to the persons or stock so passing and was a right retained and given to said owner and reserved by him for the use and benefit of said farm;" that such passageway has been so used continuously by appellee and his immediate and remote grantors since 1871, up to the time of the destruction thereof by appellant, as hereinafter set out; that on August , 1907, appellant, by its servants, entered on said premises, and tore out and destroyed said subway, and filled up the space with dirt so as to form a solid wall, through which were placed two cast-iron pipes, about thirty inches in diameter, all of which acts were done over the objection and protest of appellee; that said passageway through said culvert was of great value to appellee's said farm, and appellant by "wrongful and unlawful removing * * * and destroying said culvert and subway damaged appellant in the sum of $ 2,000."
In its brief, under its "Points and Authorities," appellant has not pointed out any objections to the first paragraph of the complaint, or indicated wherein its averments are insufficient, but counsel, in discussing this paragraph, address their remarks entirely to the effect of the written agreement entered into between appellant's predecessor and appellee's remote grantor in settlement of condemnation proceedings, said agreement being relied on by appellee as providing for the easement in said subway. In fact, in their reply brief counsel say: "The sufficiency of the first paragraph of complaint depends upon the interpretation of the alleged easement and as to whether it was a personal one (or one) that goes with the land." Said written agreement is not set out in said paragraph of complaint, nor is a copy thereof filed with the same as an exhibit. The sufficiency of said paragraph cannot therefore depend on the construction to be given to said agreement, and appellant's said objections are, in effect, objections to the sufficiency of the evidence offered in support of the averments of said paragraph. The proof of the paragraph does depend on the construction or interpretation to be placed on the easement created by said agreement made in settlement of said condemnation proceedings, which was the only evidence offered in support of the easement alleged in this paragraph.
The complaint, however, must be judged by its own averments and its sufficiency determined therefrom, and cannot depend on any construction or interpretation that may be placed on the evidence introduced in its support, either written or oral. We think the averments of this paragraph good as against the objections urged, and sufficient to show an easement running with the land, and therefore a right of action in appellee.
As to paragraphs two, three and four, it is insisted, in effect, that they are insufficient, for the reason that appellant by its proceedings in condemnation and the said compromise agreement made thereunder, acquired the right to do the things charged in each of said paragraphs without being answerable in damages.
The principles of law applicable to the question presented by this objection may be summed up as follows: Damages are assessed in condemnation proceedings once for all, and they are assessed as of the date of the appropriation. All damages of every kind and character, which might reasonably be expected to result from the appropriation and construction of the road in a proper and lawful manner, are treated as included in such original assessment. Cleveland, etc., R. Co. v. Doan (1911), 47 Ind.App. 322, 94 N.E. 598; New Jersey, etc., R. Co. v. Tutt (1907), 168 Ind. 205, 209, 80 N.E. 420; Cleveland, etc., R. Co. v. Smith (1912), 177 Ind. 524, 97 N.E. 164, 172; Indiana, etc., R. Co. v. Allen (1885), 100 Ind. 409, 414, 415; Rehman v. New Albany, etc., R. Co. (1893), 8 Ind.App. 200, 210, 213, 35 N.E. 292; White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 329, 23 N.E. 782, 7 L.R.A. 257; Union Traction Co. v. Pfeil (1906), 39 Ind.App. 51, 57, 78 N.E. 1052; Roushlange v. Chicago, etc., R. Co. (1888), 115 Ind. 106, 111, 17 N.E. 198.
Roushlange v. Chicago, etc., R. Co., supra, 108.
In the case of White v. Chicago, etc., R. Co., supra, the Supreme Court said at page 327:
The second paragraph of appellee's complaint differs from the first, in that it proceeds on the theory that appellee and his immediate grantor had acquired an easement by prescription to maintain under said culvert the main ditch or tile of the drainage system used to drain the farm described; that appellant committed a trespass on said easement by closing up the subway in the manner set out in said first paragraph, and thereby closed up and so injured, destroyed and stopped up the drain tile as to cause the water flowing into the same to back up, and thereby greatly injure appellee's farm, to his damage in the sum of $ 2,000. The averments of this paragraph show appellee's prescriptive right to the easement in question, describe its location, set forth the acts of appellant which constitute a violation of appellee's rights, and allege the latter's injury. A cause of action is thus stated. 14 Cyc. 1220 et seq. The averments showing that appellee had since the original condemnation proceedings acquired a prescriptive right to drain his land through said subway under appellant's road, which appellant had, by its new appropriation, destroyed, are sufficient to take the paragraph out of the operation of the rule announced in the cases cited, and we think make the paragraph sufficient as against said objections. Lake Erie, etc., R. Co. v. Hilfiker (1895), 12 Ind.App. 280, 281, 40 N.E. 80; 14 Cyc. 1220 et seq.
The third paragraph of complaint presents a more...
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