Evansville & T.H.R. Co. v. Nye

• Decision Date: 28 January 1888
• Citation: 15 N.E. 261,113 Ind. 223
• Court: Indiana Supreme Court
• Parties: Evansville & T. H. R. Co. et al. v. Nye.

113 Ind. 223

15 N.E. 261

Evansville & T. H. R. Co. et al.

v.Nye.

Supreme Court of Indiana.

January 28, 1888.

Appeal from circuit court, Parke county; Joshua Jump, Judge.

Ejectment by appellee, Margaret J. Nye, against appellants. Appellee recovered judgment, and the defendants appealed, assigning separate errors.

Iglehart & Taylor, J. G. Williams, and White & Hunt, for appellants. D. H. Maxwell and H. Daniels, for appellee.

Howk, J.

In this case Margaret J. Nye, as plaintiff, sued the Evansville & Terre Haute Railroad Company and the Terre Haute & Indianapolis Railroad Company, as defendants, in a complaint of one paragraph. The suit was commenced on the fourth day of November, 1882, and in her complaint appellee alleged that she was the owner in fee, and entitled to the possession of, a strip of land, particularly described, in Parke county, containing about two-thirds of an acre, which the appellants wrongfully, and without right, detained and kept her out of the possession thereof. Wherefore, etc. Appellants, severing in their defense, answered by general denials of the complaint. The issues joined were tried by a jury, and a verdict was returned for appellee, that she was the owner and entitled to the possession of the real estate in controversy, and has sustained damages in the sum of $128 for the use and detention thereof. Over the separate motions of the appellants for a new trial, the court rendered judgment against them for appellee upon and in accordance with the verdict. Separate errors are assigned here by the appellants upon the overruling of their separate motions for a new trial. Substantially the same causes for a new trial were assigned by each of the appellants, in their separate motions therefor. In their respective briefs of this cause, the learned counsel of each of the appellants have made substantially the same points and discussed substantially the same questions. Whatever we may say in this opinion, therefore, may be regarded as equally applicable to, and decisive of, the points and questions made and discussed by and on behalf of each and both of the appellants.

It is necessary, we think, to a proper understanding of the questions in the case, and of our decision thereof, that we should first give a summary, at least, of the evidence in the record. There is not much conflict in the evidence, and it was substantially as follows: It was admitted, for the purposes of the trial of this cause, that in 1860, at the date of the entry hereinafter mentioned upon the real estate in controversy, one William H. Nye was the owner of such real estate, and that on January 12, 1880, Margaret J. Nye took a deed thereof from J. Perry Nye and wife, who had purchased the same at sheriff's sale, on a foreclosure proceeding against William H. Nye and plaintiff herein in the court below, in 1879; that in 1860, the Evansville & Crawfordsville Railroad Company made its survey and entered upon such real estate for the purpose of building its railroad, and in December, 1860, such road was completed thereon, and such real estate had been continuously, openly, and notoriously occupied by such railroad, and the same had been continuously operated from December, 1860, to May, 1885, by the agents, servants, and rolling-stock of the Evansville & Crawfordsville, afterwards, and at the commencement of this suit, known by its present corporate name of the Evansville & Terre Haute Railroad Company, or of the Terre Haute & Indianapolis Railroad Company, and other railroad companies paying rent therefor to the Evansville & Crawfordsville Railroad Company, by that or its subsequent name. Plaintiff reserved the right to prove, if she could, the character and circumstances under which said entry took place, and that the said possession was not exclusive.

William H. Nye, a witness for the plaintiff, testified as follows: “In 1860, the Evansville & Crawfordsville Railroad Company sent its engineers to make a survey for its railroad on the land described in the complaint. At the time the land was fenced in. They threw down the fence and entered upon the land, cut and plowed it, cut down some apple trees, and built their grade and laid their track. I protested at the time to their doing so without permission. I saw Gen. Steele, who was general manager of the railroad extension, and made protest to him. He said they wanted to go on with the work; that they were poor, but would fix it all right; that I should be paid what the land was worth. Afterwards I spoke to the railroad authorities about settling for the land. I spoke once to Mr. Ingle, president of the road, and he suggested an arbitration. There was an agreement to arbitrate.” Question by counsel for plaintiff: “State whether an arbitration was had, or not?” Question objected to by counsel for defendants, for the reason that the record of the arbitration would be the best evidence of whether an arbitration was had; but the objection was overruled, and the witness was permitted to answer the question, to which ruling the defendants, at the time, severally excepted, and the witness answered as follows: “An arbitration was had; arbitrators were agreed upon. I selected Isaac J. Silliman, the railroad selected George W. Sill, and these two selected the third man, Levi Sidwell. Silliman and Sill are now dead. Silliman died in 1867, and Sill in 1884,-the latter since the commencement of this suit. These arbitrators viewed the premises, and awarded me $1,000 damages. This sum has never been paid. It was further agreed that the finding of the arbitrators should be made a rule of court, and each gave bond to that effect. The papers were brought into court and the railroad company objected to their being filed, or entry of judgment for the amount of the award, and the objection was sustained on some technical ground, and no judgment was entered. J. M. Allen, Esq., was attorney for the railroad company. I have looked for these papers in the clerk's office, but cannot find them. The last time I saw them they were in the hands of Mr. Allen, in the court-room. There is no record of the matter in the clerk's office, and there was no action taken on the arbitration. This arbitration was in the latter part of 1865. Within two hours after the case was disposed of, I went to the court-room for the papers and did not find them, and the clerk made search for them and could not find them. After a service of one and one-half years in the clerk's office, as deputy clerk, I made a thorough search for the papers in the office, but could not find them.” Whereupon the defendants and each of them objected to further testimony touching said arbitration, and moved the court to strike out all the testimony of the witness in relation thereto, for the reason- First, that the evidence of the witness disclosed that a competent court decided that the arbitration was a nullity, and, this being so, the proceedings were void for all purposes; and, second, that the testimony was irrelevant and immaterial; and, third, that the testimony did not tend to show that plaintiff was then claiming the title or possession of said land, but that said arbitration related solely to an amount of damages claimed for land already appropriated and in use for railroad purposes by the Evansville & Crawfordsville Railroad Company, and not to any claim for the title or possession thereof. But the court overruled said objection and motion, to which ruling the defendants, and each of them, at the time excepted.

Said witness testified further, as follows: “Nothing has been done about the arbitration since 1865. About a year before the commencement of this action, I commenced corresponding with Mr. Mackey, superintendent of the railroad, in regard to settlement, but could not get the claim settled. The real estate lies in the west half of the south-east quarter of section 7,...