Ind. v. Finnell

• Decision Date: 22 December 1888
• Citation: 116 Ind. 414,19 N.E. 204
• Parties: Indiana, B. & W. Ry. Co. v. Finnell.
• Court: Indiana Supreme Court

116 Ind. 414

19 N.E. 204

Indiana, B. & W. Ry. Co.

v.Finnell.

Supreme Court of Indiana.

December 22, 1888.

Appeal from circuit court, Marion county; Alexander C. Ayres, Judge.

Action by James S. Finnell and wife against the Indiana, Bloomington & Western Railway Company for damages for the breach of a contract. Special verdict for plaintiffs, and judgment thereon. Defendant appeals.

C. W. Fairbanks and Jas. A. New, for appellant. L. H. Reynolds, Merrill Moores, and C. G. Offutt, for appellees.

Zollars, J.

It is charged in appellees' complaint that in consideration of a grant by them to the railway company of a strip of land upon which to construct and operate its road, that corporation agreed to pay to appellees $500, fence the way so granted on both sides through their land, and build two farm crossings for their convenience. It is further charged that the railway company has failed and refused to build and construct the fences and farm crossings. The purpose of this action is to recover the damages, which it is averred resulted from the breach of the contract on the part of the railway company.

The jury returned the following special verdict:

“We, the jury, having been directed by the court, at the request of the plaintiff herein, to return a special verdict in writing upon all the issues in the above-entitled cause, do find specially the following facts, that is to say:

(1) On May 18, 1881, the defendant was, and still is, a railroad corporation, organized and existing under and by virtue of the laws of the states of Ohio, Indiana, and Illinois, and being desirous of surveying, locating, and constructing a railroad from the city of Indianapolis, Indiana, to the city of Springfield, Ohio, and through and across lands of the plaintiff, situated in Hancock county, Indiana, and described as follows, viz., the southwest quarter, section numbered three, (3,) in township sixteen (16) north, of range numbered seven (7) east, of which lands the plaintiffs then were the owners in fee-simple, the defendant, with the plaintiffs, entered into a written contract, which contract was executed, acknowledged, and delivered by plaintiffs to the defendant, and was accepted by the defendant, and was in the words and figures, as follows, to-wit:

‘This agreement, made and entered into between James S. Finnell and Elizabeth A. Finnell, his wife, of the county of Hancock, and state of Indiana, of the first part, and the Indiana, Bloomington & Western Railway Company, a corporation existing under and by virtue of the laws of the States of Ohio, Indiana, and Illinois, of the second part, witnesseth: That, whereas, the said party of the second part is desirous of surveying, locating, and constructing a railroad from the city of Indianapolis, Indiana, to the city of Springfield, in the state of Ohio, and it is rendered probable that said railway may be finally located over the lands of the party of the first part, situated in the county of Hancock, in the state of Indiana, and described as follows: The southwest quarter section numbered three (3,) in township numbered sixteen (16) north, of range seven (7) east, said company to fence said road where the same passes over said land within a reasonable time after the same is completed, and to put in two farm crossings on said land. And whereas, it is considered that if the said road is built over the land of the parties of the first part, above described, said road will greatly benefit and enhance the value of the same: Now, in further consideration of the sum of one dollar to us in hand paid by said company, receipt whereof is hereby acknowledged, we do hereby agree, and by these presents bind ourselves, our heirs, executors, administrators, and assigns, that if the line of railway of said the Indiana, Bloomington & Western Railway Company shall be finally located over the said above-described land, within the time fixed by its charter, to make or cause to be made to said company, as soon as said line of railway shall be located, a good and sufficient deed, clear of all incumbrances, for a strip of said land fifty feet wide on each side of the center stake or center line of said railway, as located, and that the said company may, at any time, enter upon and use said land for the purpose of locating, building, operating, and maintaining said railway. And it is further agreed that said company shall, upon the delivery of said deed, pay to the party of the first part the sum of five hundred dollars, as a further consideration for the said land.

In witness whereof, the parties of the first part have hereunto set their hands and seals this 18th day of May, 1881.

James S. Finnell. [Seal.]

Elizabeth A. Finnell. [Seal.]'

To said contract was and is attached a certificate of acknowledgment in the words and figures following, to-wit:

State of Indiana, Hancock county-ss.:

Before me, William C. Barrett, a notary public in and for said county, this 18th day of May, A. D. 1881, personally appeared the within-named James S. Finnell and Elizabeth Finnell, his wife, and acknowledged the execution of the annexed instrument.

Witness my hand and notarial seal this 18th day of May, A. D. 1881.

William C. Barrett, Notary Public.'

Said contract was delivered by plaintiffs to one Albert Emerson, an authorized agent of defendant, and was accepted and placed of record by defendant upon the 25th day of May, 1881, in the recorder's office of Hancock county, Indiana.

(2) On June 22, 1881, defendant demanded of plaintiffs, who then were and now are husband and wife, a warranty deed to a strip of land through plaintiffs' said land, pursuant to said contract; and plaintiffs being, upon said day last named, still the owners in fee-simple of said real estate, and in possession of the same, executed, acknowledged, and delivered to the said defendant a deed of general warranty to a strip of land one hundred feet in width, being fifty feet wide on each side of the center stakes or center line of said railway, as located, which land then was free and clear of all incumbrances, and was accepted by defendant as a complete execution and fulfillment by the plaintiffs of said contract of sale. Said deed was caused by the defendant to be recorded in the office of the recorder of Hancock county, Indiana, and contained a correct description of the land now occupied by defendant for its right of way through said real estate, and of land which was then and there turned over to defendant by plaintiffs, and was accepted by said defendant, and occupied as and for its right of way.

(3) At the time of the execution and acceptance of said deed, it was understood and agreed by the parties thereto, by an oral agreement contemporaneous thereto, that the consideration for said deed was the sum of five hundred dollars in money, and a good and sufficient fence upon both sides of said right of way where the same should, and did, cross plaintiffs' said land, with two farm crossings upon said land; such fence and farm crossings to be constructed within a reasonable time after the completion of the said railroad by defendant, and at defendant's expense, which fence...