Evansville And Indianapolis Railroad Company v. Butts, 3,406

• Docket Nº: 3,406
• Citation: 59 N.E. 1070, 26 Ind.App. 418
• Case Date: March 26, 1901
• Court: Court of Appeals of Indiana

59 N.E. 1070

26 Ind.App. 418

EVANSVILLE AND INDIANAPOLIS RAILROAD COMPANY
v.
BUTTS

No. 3,406

Court of Appeals of Indiana

March 26, 1901

From the Clay Circuit Court.

Reversed.

J. G. Williams, D. P. Williams and G. A. Knight, for appellant.

J. A. McNutt, for appellee.

OPINION

[26 Ind.App. 419] COMSTOCK, J.

Appellee brought this action under §§ 5323, 5324 Burns 1894, §§ 4098a, 4098b Horner 1897, to recover the cost of building a fence along his land where the same abuts appellant's railway. The cause was put at issue, submitted to the court for trial, and a judgment rendered in favor of appellee for $ 107.50 against the appellant.

The only specification of the assignment of errors discussed is the action of the court in overruling appellant's demurrer to the complaint.

Section 5323 (4098a), supra, imposes upon railroads the duty to fence their rights of way. If there is a failure to perform this duty, § 4098b (5324), supra, gives to the owner of abutting lands the right to build the fence and recover the cost. To entitle the landowner to recover the costs incurred for labor and material in the construction of the fence, the duty of the railroad must be made to appear. The statute does not make it the duty of the railroad to fence its entire right of way. It provides that fences shall be built "except at the crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks," etc. The exceptions above set out are in the clause and sentence of the section prescribing the duty of the railroad company.

The objection made to the complaint is that it does not negative the foregoing exceptions. It is a well settled rule of pleading in this State that where there is an exception or [26 Ind.App. 420] condition in a law imposing a duty or giving a right of action, the exception or condition must be negatived in order to make a pleading good on such law. Chicago, etc., R. Co. v. Vert, 24 Ind.App. 78, 56 N.E. 139; Cleveland, etc., R. Co. v. Gray, 148 Ind. 266, 46 N.E. 675; Colson v. State, 7 Blackf. 590; Russell v. State, 50 Ind. 174; Montgomery v. State, 53 Ind. 108; Weaver v. State, ex rel., 8 Blackf. 563; Struble v. Nodwift, 11 Ind. 64; State, ex rel. v. Shackleford, 15 Ind. 376; Ezra v. Manlove, 7 Blackf. 389.

The learned counsel for appellee admit the rule of pleading as stated, but insist that while the...