Evansville & Richmond Railroad Company v. Charlton

• Citation: 33 N.E. 129,6 Ind.App. 56
• Decision Date: 18 January 1893
• Docket Number: 608
• Court: Court of Appeals of Indiana
• Parties: THE EVANSVILLE & RICHMOND RAILROAD COMPANY v. CHARLTON

33 N.E. 129

6 Ind.App. 56

THE EVANSVILLE & RICHMOND RAILROAD COMPANY v. CHARLTON

No. 608

Court of Appeals of Indiana

January 18, 1893

From the Jackson Circuit Court.

Judgment affirmed.

M. F Dunn, for appellant.

O. H Montgomery, for appellee.

OPINION

DAVIS, J.

This was an action commenced in the Circuit Court by the appellee against appellant for a writ of assessment of damages, under sections 881 to 912, inclusive, of the revised statutes of 1881.

The writ was issued and the sheriff proceeded to hold the inquest and made his return with an award of damages in favor of appellee in the sum of three hundred and eighty dollars. To this award each of the parties filed exceptions.

The sixth specification of exceptions to the assessment of damages filed by appellant was, in substance and to the effect, that the railroad track of appellant, in question was located and established in a street in the city of Seymour; and that, prior to the location and establishment of said railroad, the common council of said city duly gave the consent of the city to said appellant to locate and operate its railroad upon said street; and that afterwards, and before the location and construction of the road, the appellee and other owners of real estate abutting on said street gave the appellant their free and unqualified consent to the location and operation of its railroad on said street, which authority and consent was in writing and was accepted by the appellant as a free gift of the right of way along and over said street; and that, relying upon and by virtue of said order and consent of said city, and the consent of said appellee and other abutting owners of real estate on said street, appellant did thereafter construct said railroad and expend a large amount of money, all with the full knowledge of appellee, who made no objection thereto.

A demurrer was sustained to said exception, to which ruling appellant at the time excepted.

If an estoppel from claiming damages can be predicated upon the fact that the land owner, prior to the location and construction of the railroad, gave his free and unqualified consent thereto, the facts in said exception were fully and properly pleaded, provided the point raised by appellee that such answer, if otherwise sufficient, should be addressed to the complaint and not to the assessment, is not well taken.

The first question to be determined is whether the court erred in sustaining the demurrer to the sixth paragraph of exceptions to the assessment of damages.

If the appellant is right on this proposition, the judgment of the court below will have to be reversed, but if the action of the court below, in sustaining this demurrer, is correct, then, as we view the record and understand counsel for appellant, the judgment should be affirmed, unless the appellee is entitled to a reversal on his cross-assignment of errors.

As a matter of practice, it is perhaps true, as contended by counsel for the appellee, that the facts set out in the sixth specification of exceptions, if sufficient, should have been pleaded in bar of the right of appellee to have the benefit of the writ. Section 896, R. S. 1881; Indiana, etc., R. W. Co. v. Allen, 100 Ind. 409.

This question, however, we do not decide.

It will be observed there is no pretense that appellee relinquished any claim for damages by reason of the construction of the railroad, except as the result of the consent and license mentioned in said specification. Burrow v. Terre Haute, etc., R. R. Co., 107 Ind. 432, 8 N.E. 167 (438).

The doctrine established by the decisions of the Supreme Court in this State is that the license or consent of the land owner to the entry and appropriation of a right of way by a railroad company, and the location and construction of its line of road thereon, do not bar or estop the owner from prosecuting proceedings for assessment of damages, at any time before the statute of limitations has run against him.

"A land owner who consents to an appropriation of his land by a railroad company is not precluded thereby from seasonably instituting proceedings for the assessment of his damages." Midland R. W. Co. v. Smith, 125 Ind. 509, 25 N.E. 153; See also Midland R. W. Co. v. Smith, 113 Ind. 233, 15 N.E. 256; Midland R. W. Co. v. Smith, 109 Ind. 488, 9 N.E. 474; Evansville, etc., R. R. Co. v. Nye, 113 Ind. 223, 15 N.E. 261; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446; Porter v. Midland R. W. Co., 125 Ind. 476, 25 N.E. 556; Kincaid v. Indianapolis Natural Gas Co., 124 Ind. 577, 24 N.E. 1066 (582).

In the Smith cases, supra, the land owner not only consented that his land might be occupied by the company for right of way, but also, as subcontractor, actually graded and constructed that part of the line across his own lands, without asserting or claiming compensation, and yet it was held that he could maintain his proceedings for assessment of damages against a subsequent purchaser of the road without notice of his claim.

Our conclusion, therefore, is that the court below did not err in sustaining the demurrer to the sixth specification of exceptions.

The cause was tried by the court, special findings were made, and conclusions of law thereon stated as follows:

"First. Defendant is, and has been for five years, a railroad corporation organized under the statutes of Indiana.

"Second. Plaintiff is a resident, and has been for ten years past, of the city of Seymour, Jackson county, State of Indiana.

"Third. During the years 1888, 1889 and 1890, the plaintiff owned in fee the following described real estate, situate within said city, to wit: Block numbered 27, being 300 feet square.

"Fourth. That during the year 1888, what is known as Eighth street, in said city, was extended, and was and is 60 feet wide from north to south and was then made to run through said block as follows: Entering at the west side of said block so that the south side of such street was 40 feet north of southwest corner of said block, and the said street ran thence east with such angle south that 130 feet east of southwest corner of said block said south side of said street crossed and intersected the south side of said block, and said street continued on the same angle to Ewing street, which bounds said block No. 27 on the east, and Booth street bounds said block on the west.

"Fifth. That thereupon said plaintiff laid out said block in lots as follows: The three-cornered tract cut off said block by Eighth street, as shown above, and lying on the south and contiguous to Eighth street, and being 40 feet front on Booth street, and the two sides being 130 feet, and then at the east end coming to a point--being one lot--being the same as described in complaint, and the balance on the north side of Eighth street being divided into nine lots of about equal size, all 150 feet long from east to west, four of them fronting on Booth street and five of them fronting east on Ewing street. The same side of the two lots, they being next to Eighth street, were the only lots of said nine abutting or lying next to Eighth street.

"Sixth. Very soon (in 1889) after said Eighth street was extended and opened as described above, defendant obtained the consent of the city authorities in said city to extend and lay its railroad track along and on said Eighth street at and over the ground above described, and the city council of said city was superinduced to give defendant the right of way for its track along said Eighth street, at said point, by a written petition signed by many property owners in that neighborhood, including the plaintiff, and that at once defendant then laid, located, and erected its main track along said street, a few feet south of the center of said street, clear along between Booth and Ewing streets, without molestation, and the defendant brought no proceedings against the plaintiff to assess damages, and none have been paid, and no proceedings were had until the plaintiff began this proceeding, September 8th, 1891.

"Seventh. Immediately before defendant's track was laid along said Eighth street, as above set out, the three-cornered lot of ...