Cleveland, Columbus, Cincinnati and Indianapolis Railway Co. v. Coburn

• Decision Date: 28 November 1883
• Docket Number: 8234
• Citation: 91 Ind. 557
• Parties: Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Coburn et al
• Court: Indiana Supreme Court

91 Ind. 557

Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Coburn et al

No. 8234

Supreme Court of Indiana

November 28, 1883

From the Superior Court of Marion County.

The judgment is affirmed, at the costs of the appellant.

H. H Poppleton, J. T. Dye and A. C. Harris, for appellant.

C. H Test, J. Coburn, W. Wallace, T. A. Hendricks, A. W Hendricks, C. Baker and O. B. Hord, for appellees.

Bicknell C. C. Elliott, J., took no part in the decision of this cause.

OPINION

Bicknell, C. C.

It is not disputed that the appellant holds all the rights of the Indianapolis and Bellefontaine Railroad Company to the land in controversy in this suit. All the defendants except Thomas A. Hendricks and wife, Aquilla Parker and Mrs. Lingenfelter, are the heirs at law of Henry P. Coburn. Hendricks and wife and Parker and Mrs. Lingenfelter claim under conveyances made by the Coburn heirs in 1859, 1861 and 1862.

The land in controversy is a strip eighty feet wide extending through out-block No. 182 in Marion county, Indiana. This out-block belonged to Henry P. Coburn, who subdivided it into lots, and, on March 9th, 1854, filed a plat thereof in the recorder's office of Marion county, on which the strip in controversy is named Curve street.

In 1866, on the petition of the Coburn heirs, Curve street was vacated by the common council of Indianapolis, except an alley twelve feet wide in the center thereof, between Ash and Plum streets. Afterwards some of the owners of the lots abutting on the vacated street enclosed parts of it. On the 17th of August, 1874, the appellant brought this suit, claiming to be the owner of said strip of land, and seeking to establish its boundaries, to quiet the title thereto, and to obtain possession of so much of it as was held adversely.

The appellant claims title as follows:

It holds the rights of the Indianapolis and Bellefontaine Railroad Company, which was chartered in 1848, to build a railroad from Indianapolis to the Ohio State line, near the site of Union City.

It was authorized to acquire, by relinquishment and by condemnation, lands and materials for the construction of its road. Its charter, in section 18, provides that "It shall be lawful for said company, either before or after the location of any section of said road, to obtain from the person or persons through whose land the same may pass a relinquishment of so much of the land as may be necessary for the construction or location of said road * * * * and that all such relinquishments * * * * made and entered into in writing, by any person or persons capable of contracting, made in consideration of such location or construction of said road, for the benefit of the company, shall be binding and obligatory; and said company may have their action at law or in chancery, in any court of competent jurisdiction, to compel the performance of the same."

In section 21 the charter provides that "when said company shall have procured the right of way as hereinbefore provided they shall be seized in fee simple of the right of said land, and shall have the sole use and occupation of the same, and no person * * * * shall in any way interfere therewith, or disturb, molest or injure any of the rights and privileges hereby granted, so as to detract from or affect the profits of said corporation."

The language of this section is somewhat obscure. The Legislature, in exercising the right of eminent domain, has the power to determine the estate or quantity of interest in the lands which shall be taken, whether an estate for years, for life, or in fee; whether a right of reversion in any event shall be left in the owner, or whether a mere easement shall be taken, without divesting the general ownership of the land. Heyward v. Mayor, 7 N.Y. 314; Water Works Co. v. Burkhart, 41 Ind. 364, 373.

But section 21, supra, does not expressly provide that the company shall be seized in fee simple of the land. The words are, "They shall be seized in fee simple of the right of said land, and shall have the sole use and occupation of the same, and no person shall interfere therewith."

In the absence of any judicial construction of this language, it might be supposed to mean that the company shall be the owner of the right relinquished, which might be a fee, or a less estate, or a mere easement, according to the terms of the written relinquishment. But the very same language, in another charter, has been construed by this court as follows: "We think it simply intended as declaratory of the effect which the releases and condemnations of land * should have; that is, whether they should be taken to convey an easement, a right of way merely, or a fee simple title, and declaring it should be the latter; that they should have the same force that deeds from the proprietors in the usual form to the company, conveying to their sole use, etc., would have." Newcastle, etc., R. R. Co. v. Peru, etc., R. R. Co., 3 Ind. 464. Under this construction, an unconditional relinquishment of the land undoubtedly would have vested in the railroad company the absolute fee simple of the land, but the statute under consideration can not be held to impair the right to make contracts. Fisher v. Evansville, etc., R. R. Co., 7 Ind. 407; Evansville, etc., R. R. Co. v. City of Evansville, 15 Ind. 395.

The company is not bound to accept a conditional relinquishment; it may proceed to acquire the land by condemnation. If it does not proceed by condemnation, but accepts a relinquishment coupled with conditions, then, upon general principles, if the conditions are precedent, they must be performed before the rights of the company can be complete, and if the conditions are subsequent, a failure to perform the conditions may be followed by a forfeiture of the estate of the company, even if it be a fee simple. Leach v. Leach, 4 Ind. 628; Lindsey v. Lindsey, 45 Ind. 552, 562.

On the 27th of February, 1849, the plaintiff's road was located through the out-block No. 182, eighty feet in width, by an accurate survey. On the following day Henry P. Coburn executed to the railroad company the following deed of relinquishment:

"Indianapolis and Bellefontaine Railroad.

"Release of Right of Way.

"I, Henry P. Coburn, of the county of Marion and State of Indiana, for and in consideration of the advantages which may or will result to the public in general, and myself in particular, by the construction of the Indianapolis and Bellefontaine Railroad, as now surveyed, or as the same may be finally located, and for the purpose of facilitating the construction and completion of said work, do hereby for myself, my heirs, executors, administrators and assigns, release, relinquish and forever quitclaim to the president and directors of the Indianapolis and Bellefontaine Railroad Company the right of way for so much of said railroad as may pass through the following described piece, parcel, or lot of land, to wit: Out-block No. 182, situated, lying and being in the county of Marion and State of Indiana, being part of the donation lands for the seat of government for the State of Indiana. This release to cover eighty feet in width, or forty feet from the center of the road on each side. Said company shall make the necessary culverts under the track to pass the water, and I reserve the right to lay down and keep a railroad track in front of the lots adjoining the road, and also of connecting the same with the track of the railroad in such way and manner as shall be designated and approved by the board. And I hereby further release and relinquish to the president and directors of the Indianapolis and Bellefontaine Railroad Company, all damages and right of damages, actions and causes of actions whatever, which I might sustain, or be entitled to by reason of anything connected with or consequent upon the location or construction of such work, or the repairing thereof when finally established and completed.

"Witness my hand and seal this 28th day of February, A. D. 1849.

H. P. Coburn. [seal.]"

This deed was not recorded until August 14th, 1867, more than seventeen years after its acceptance by the company, but it was valid as between the parties thereto. The foregoing instrument is not an unconditional relinquishment of a right of way. The depot of the company at Indianapolis was to be erected on out-block No. 181, adjoining out-block No. 182 and the location of the track through the latter block approaching the proposed depot on block No. 181, and the acceptance by the company of the aforesaid relinquishment were parts of one transaction. Unquestionably, the intention of the parties was that the depot should be constructed and permanently maintained on out-block 181, and that the track upon out-block 182 was to be permanently maintained as an approach to the depot. The relinquishment states its consideration, to wit, advantages to the public in general and to the grantor in particular, by the construction of the railroad as now surveyed, that is, on the land relinquished; but without permanence there would be no advantages, and such permanence was the principal consideration. This appears clearly from the subsequent provisions, to wit, that the company shall make the necessary culverts under the track to pass the water, and that the grantor reserves the right to lay down...