Cottrell v. Chicago, T.H.&S.E. Ry. Co., 23937.

• Decision Date: 13 March 1923
• Docket Number: No. 23937.,23937.
• Citation: 138 N.E. 504,192 Ind. 692
• Parties: COTTRELL et al. v. CHICAGO, T. H. & S. E. RY. CO. et al.
• Court: Indiana Supreme Court

192 Ind. 692

138 N.E. 504

COTTRELL et al.

v.CHICAGO, T. H. & S. E. RY. CO. et al.

No. 23937.

Supreme Court of Indiana.

March 13, 1923.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.

Petition by the Chicago, Terre Haute & Southeastern Railway Company and others against Daniel V. Cottrell and others, to appropriate land for a right of way. From an order appointing appraisers, defendants appeal. Affirmed.

Lindley & Bedwell, of Sullivan, and Hamill, Hickey, Evans & Danner, of Terre Haute, for appellants.

Beasley, Douthitt, Crawford & Beasley, of Terre Haute, Charles D. Hunt, of Sullivan, and Moore & Moore, of Terre Haute, for appellees.

EWBANK, J.

Appellee railway company filed a petition in the superior court of Vigo county, by which it sought to appropriate a strip 75 feet wide across lands owned by appellants near the Wabash river, as right of way on which to build a track to a gravel bank, beginning at the terminus of an existing “branch” or switch which leads off from appellee's main line to a small station called Perkins, where there is a “loading track” for the use of teamsters, a spur to a gravel pit, and a spur running into an elevator owned by appellants. The trial court, after sustaining demurrers to certain objections filed by appellants and hearing evidence on the issues formed on others, found that appellee was entitled to appropriate the land petitioned for, and entered an order appointing appraisers, from which order this appeal was taken.

The petition alleged, in substance, that appellee is a railroad corporation of Indiana, operating a line of railroad and engaged in the business of a common carrier and in the usual ordinary business incident to the operation of a railroad; that near its railroad are large tracts of land underlaid with minerals, including gravel, on some of which mines, quarries, and gravel pits are being operated, while on other such lands the operation of gravel pits is contemplated; that appellee company has surveyed, located, staked out, and determined to build, and is desirous of constructing a branch railroad from its main line to a designated gravel pit, extending across certain described lands owned by appellants over a route described, which will not exceed 50 miles in length nor extend more than 50 miles from the petitioner's main line; that said gravel pit has no railroad connection, nor means of shipping its product by railroad; and that the petitioner made an effort to agree with said owners and each of them for the purchase of such right of way, but was unable to do so; that such right of way is necessary for plaintiff's use for the construction and maintenance of such branch railroad, and will be used only for railroad purposes.

Appellants filed 40 objections, to 28 of which the court sustained demurrers. The 28 thus rejected consisted of a general denial of the facts alleged in the petition, specific denials of particular facts alleged, and denials of certain conclusions of law which necessarily follow, if the facts stated in the petition constitute a cause of action and are true.

[1] Appellants have not...