Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Cross

• Decision Date: 26 June 1928
• Docket Number: 12,956
• Citation: 162 N.E. 253,87 Ind.App. 574
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. CROSS ET AL
• Court: Indiana Appellate Court

162 N.E. 253

87 Ind.App. 574

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. CROSS ET AL

No. 12,956

Court of Appeals of Indiana

June 26, 1928

From Boone Circuit Court; John W. Hornaday, Judge.

Action by John G. Cross and others against the Cleveland Cincinnati, Chicago and St. Louis Railway Company and another in which the named defendant filed a cross-complaint. From a judgment for plaintiffs, the named defendant appeals.

Reversed.

Frank L. Littleton, Forrest Chenoweth and Parr & Parr, for appellant.

Rogers & Smith, for appellees.

OPINION

MCMAHAN, J.

This is an action by John G. Cross and others against appellant and the town of Zionsville to quiet title to certain real estate in said town. Appellant filed a cross-complaint against the plaintiffs asking that the title to the land be quieted in it.

The court found the facts specially and stated conclusions of law in favor of the plaintiffs and rendered judgment accordingly.

Appellant contends the court erred in overruling its demurrer to the third and fourth paragraphs of complaint, in the first second and third conclusions of law, and in overruling its motion for a new trial.

The salient facts are that:

Plaintiffs, who are appellees here, are the heirs of Elijah and Polly Cross, who in 1849, and prior thereto, were the owners of certain land in Boone county. In November, 1851, Elijah and Polly Cross, with William Zion, laid out and platted upon said land the original plat of Zionsville, and in 1854, Elijah and Polly Cross conveyed and warranted to the Lafayette and Indianapolis Railroad Company a parcel of land described as:

"Beginning in the center of the track of the Lafayette and Indianapolis Railroad, 120 feet north of the north line of the original plat of the Town of Zionsville, running thence northwardly 40 rods in the center of said main track, thence westwardly at right angles with said first line 120 feet, thence southwardly parallel with said named line 40 rods, thence on a direct line 120 feet to the place of beginning, in consideration of one dollar, the receipt of which is acknowledged."

It is provided in said deed that:

"Said conveyance is upon the express condition that said railroad company shall keep and maintain a switch, side or double track at Zionsville, and shall, as soon as it shall be convenient for them to do so, use said parcel of ground for their station, woodshed, station house and other buildings they may deem necessary for the transaction of their business at Zionsville; and that said railroad company shall not themselves use said ground permanently nor suffer other persons permanently to use it for any other purpose not connected with said railroad."

This deed was acknowledged and recorded. Elijah Cross laid out and platted Cross's first, second, third and fourth additions to Zionsville in 1854, 1864, 1866 and 1869 respectively. He died in 1869, the owner of a large number of lots in the original plat of Zionsville and lands adjacent thereto and in the above mentioned additions. Polly Cross continued to own a large number of lots in said subdivisions and adjacent territory until her death in 1903. The plaintiffs, as heirs of Elijah and Polly Cross, are the owners in fee of part of real estate owned by Elijah and Polly Cross when said deed was executed.

In January, 1846, the legislature passed a special act incorporating appellant's predecessor, the Lafayette and Indianapolis Railroad Company. Some time between 1851 and 1854, the railroad company built a railroad across the land owned by the Crosses through Zionsville. The railroad was completed in 1854, and from that time to the spring of 1921 appellant and its predecessors continuously operated and maintained a railroad on and over said right of way. The land described in said deed and known as "station ground," was, during all of said years, used by the railroad for station grounds and railroad purposes. In 1921, appellant moved its tracks and depot building about one-half mile west, where it had constructed a new line. After the removal of the station house and tracks, the town of Zionsville entered upon the old right of way, took gravel therefrom and converted the same into a public thoroughfare and converted the depot grounds into a public park and erected a band stand thereon. Such use by the town has been without any objection on the part of the railroad. No part of the right of way and ground so used by the railroad other than the depot ground was ever conveyed by the Crosses to the railroad. A number of streets in said town, and crossing the said railroad...