Davis v. The Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Decision Date: 18 January 1895
• Docket Number: 17,100
• Parties: Davis v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company
• Court: Indiana Supreme Court

39 N.E. 495

140 Ind. 468

Davis v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company

No. 17,100

Supreme Court of Indiana

January 18, 1895

From the Montgomery Circuit Court.

The judgment is affirmed.

J. L Shrum, for appellant.

J. T Dye, B. K. Elliott, W. F. Elliott, and Kennedy & Kennedy for appellee.

OPINION

Hackney, J.

The appellant's complaint against the appellee was in three paragraphs, in each of which he sought to enjoin the appellee from making an embankment in its roadbed at a point where it had maintained a trestlework. In two of said paragraphs, it was alleged that the embankment would wholly obstruct a private passageway under said trestlework, enjoyed by the appellant for more than twenty years; and in the third paragraph it was alleged that said embankment would destroy a tile drain maintained by the appellant for his adjacent lands. Upon the issue formed, the court rendered a special finding, in which the following facts were stated: In September, 1869, John S. Gray owned the lands through which the appellee's railway runs, and conveyed to the appellee's predecessor, by deed of general warranty, "the land, right of way, and right of drainage for its railroad;" that said railroad was constructed and the possession of a way was taken by said predecessor; that in said construction a trestlework was built sixty-two feet long and seven feet and three inches from the ground to the bottom of the superstructure. In the year 1873, said deed was recorded, and in 1875 Gray conveyed the lands, through which said railroad had been so constructed, to the appellant; that ever since the construction of said railroad the said Gray and the appellant, each during his ownership of said adjacent lands, used continuously a passageway under said trestle for their live stock and teams in passing from either side of said railroad to the other upon said lands, and in the course of operating said lands as a farm; that said use was without agreement, permission or hindrance from the appellee or its predecessor, and was without any claim of right on the part of either said Gray or the appellant. It is found also that the appellee intended to and had taken steps towards filling the space occupied by said trestlework with an embankment upon which to carry its railroad, thereby cutting off any opportunity to pass from either side of said railroad to the other at that point upon the level of the adjacent lands. There are further findings having relation to the destruction of the appellant's tile drain across the line of railroad, but, as the conclusion and decree were in appellant's favor upon that element of the case, such facts need not be here stated. The court stated, as its conclusion of law upon the facts so found, that the appellee should not be enjoined from obstructing said passageway. The questions arising in this court have reference to this conclusion of the trial court.

The theory of the suit was that the appellant held an easement by prescription in a way across the appellee's right of way, which easement the appellee was about to obstruct.

The argument of appellant's learned counsel covers the field of easement by grant, by necessity and by prescription, but, it is needless to say, our investigations must be confined to the theory of the case as defined by the issue and observed in the trial.

We have examined the evidence, and find that it does not extend beyond the scope of the facts specially stated by the trial court. The facts found are wholly insufficient to establish an easement by prescription. Such an easement does not exist where the...