Dwenger v. Chicago & G. T. R. Co.

• Decision Date: 31 October 1884
• Docket Number: 11,666
• Citation: 98 Ind. 153
• Parties: Dwenger v. Chicago and Grand Trunk Railway Company
• Court: Indiana Supreme Court

98 Ind. 153

Dwenger v. Chicago and Grand Trunk Railway Company

No. 11,666

Supreme Court of Indiana

October 31, 1884

From the St. Joseph Circuit Court.

A Anderson and L. Hubbard, for appellant.

T. S Stanfield and W. G. George, for appellee.

OPINION

Bicknell C. C.

The plaintiff demanded $ 7,000 as damages for the alleged obstruction of an easement. His complaint alleged that Division street was laid out on the plat of the Bank of Indiana's addition to South Bend, as forty-nine and one-half feet wide along the front of lot No. 70; that in 1871, the plaintiff became the owner in fee simple of a part of lot No. 70, known as lots 4 and 5, in E. Sorin's subdivision of lot No. 70, abutting on the south side of said street for the distance of sixteen rods; that in 1865, said street was made sixty-six feet wide; that on said lots 4 and 5 a church, a school-house and a dwelling-house were built; that the dedication of the street and all of said improvements were made long before the existence of any railway; that for fifteen years said church has been used continuously for public worship and for funeral and marriage ceremonies; that many children have continuously attended said school, and that said dwelling-house has been continuously occupied; that in 1872 a railroad track was made in the center of Division street, so that half of the ties and one rail were south of the center thereof, and said track has ever since been used for the passage of steam cars and as railroads are ordinarily used; that said railroad was so constructed and has been so used without right by purchase, condemnation or otherwise; that the defendant for seven years has been operating said road, without right to the use of the street opposite plaintiff's said land, and that said railroad was previously operated by another corporation, to all of whose rights and liabilities the defendant has succeeded; that trains of cars with freight and passengers are and have been drawn along said road at great speed, which, by their noise and jarring, have disturbed said public worship and have interrupted said funeral and marriage ceremonies, and have also endangered the lives and limbs of the church worshipers and school children, and have obstructed the exit and entrance of said street and prevented it from being safely used with horses; that by such trains smoke and cinders and dust are raised and dangerous sparks of fire emitted; that said rails and ties obstruct the use of the street by vehicles; that stock trains send offensive odors upon the plaintiff's premises; that all of these grievances have existed ever since the construction of said railroad, obstructing the plaintiff's easement in said street, and materially damaging the rental and market value of his said property. Wherefore, etc.

The defendant answered by a general denial and three special defences.

Demurrers to the special defences were overruled, and, the plaintiff declining to reply, judgment was rendered for the defendant.

The plaintiff appealed. The only error, relied on for the reversal of the judgment, is the overruling of the demurrer to the second paragraph of the answer. That paragraph is as follows: It admits the laying out of Division street and the location of lot 70, and that in 1865 a church was built thereon, but alleges that the school-house and the dwelling-house were built after the construction of railroad. It admits the making of the railroad on Division street, but denies that it was laid in the center of the street as it was originally, and avers that in 1869 the city of South Bend widened the street by adding thereto sixteen and one-half feet on the north side, and that the railroad was placed in the center of the street thus widened; that its track is nine feet wide, and that none of it is on the south half of the street, and that the plaintiff has no title to any of the ground occupied by it. It admits that the defendant has succeeded to the rights of the Peninsular Railroad Company which built the road, and avers that the defendant has operated the same since April 6th, 1880, but not without right. It avers that the city of South Bend, by an ordinance passed March 2d, 1868, authorized the said Peninsular Railroad Company to build a track in said Division street in front of said lot 70, and that said road was built in pursuance of said...