Evansville & I.R. Co. v. Butts

• Decision Date: 26 March 1901
• Citation: 59 N.E. 1070,26 Ind.App. 418
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & I. R. CO. v. BUTTS.

26 Ind.App. 418

59 N.E. 1070

EVANSVILLE & I. R. CO.

v.BUTTS.

Appellate Court of Indiana.

March 26, 1901.

Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Action by William Butts, Sr., against the Evansville & Indianapolis Railroad Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

John G. Williams, D. P. Williams, and George A. Knight, for appellant. James A. McNutt, for appellee.

COMSTOCK, P. J.

Appellee brought this action under sections 4098a, 4098b, Horner's Rev. St. 1897 (sections 5323, 5324, Burns' Rev. St. 1894), 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 4098a (section 5323), supra, imposes upon railroads the duty to fence their rights of way. If there is a failure to perform this duty, section 4098b (section 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 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. Railway Co. v. Vert (Ind. App.) 56 N. E. 139;Railway Co. v. Gray, 148 Ind. 272, 46 N. E. 675;Colson v. State, 7 Blackf. 590;Russell v. State, 50 Ind. 174;Montgomery v. State, 53 Ind. 109;Weaver v. State, 8 Blackf. 563;Struble v. Nodwift, 11 Ind. 64;State v. Shackleford, 15 Ind. 376;Erza v. Manlove, 7 Blackf. 389. The learned counsel for appellee admit the rule of pleading as stated, but insist that, while the complaint does not in express terms negative the exceptions, it is plainly apparent from the facts pleaded that the place at which the fence was erected by appellee was not and could not fall within the exceptions of the statute, and that it is, therefore, sufficient. In support of this position, Byard v. Harkrider, 108 Ind. 376, 9 N. E. 294, and Railway Co. v. Case, 122 Ind. 310, 23 N. E. 797, are cited....