Indiana Railway Co. v. Morgan

• Decision Date: 17 March 1904
• Docket Number: 20,243
• Citation: 70 N.E. 368,162 Ind. 331
• Parties: Indiana Railway Company v. Morgan
• Court: Indiana Supreme Court

70 N.E. 368

162 Ind. 331

Indiana Railway Company v. Morgan

No. 20,243

Supreme Court of Indiana

March 17, 1904

From St. Joseph Circuit Court; W. A. Funk, Judge.

Suit by Henry C. Morgan against the Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

A. L Brick and D. D. Bates, for appellant.

Andrew Anderson, James Du Shane and W. G. Crabill, for appellee.

OPINION

Hadley, J.

Appellee brought this suit on March 8, 1901. The first paragraph of the complaint is a common count to quiet his title to, and the second to recover mesne profits for the alleged wrongful occupancy with its railroad track and right of way, and without his authority, of a strip of ground from eight to twenty-five feet wide running east and west across his certain farm of 100 acres, and between the Vistula road and the bank of the St. Joseph river.

There is no controversy over the pleadings. The controlling question arises upon appellant's exception to the conclusion of law upon the special finding of facts. The facts found established, so far as material to the question involved, are in substance as follows: John M. Miller died testate in 1880, the owner of the farm of which the strip in dispute was a part, and by his will devised the land to his widow for and during the remainder of her life, and directed his executor, upon her death, to sell the land, and after the payment of some small legacies to divide the balance of the proceeds of the same equally among his three children, Henry C., Martha E., and Sarah A. Miller. The widow accepted the will; took possession of the land, and enjoyed the rents and profits thereof until her death in 1899, when the land was conveyed by the executor as directed by the will. In 1893 Sarah A. executed to appellee Morgan, for value, a warranty deed for an undivided one-third of said lands.

A public highway known as the Vistula road, and running east and west across the land, has been opened and used for public travel to a width of forty feet for more than fifty years though its legal width was never defined. In 1894 the board of commissioners granted to the General Power & Quick Transit Company, a corporation organized as a street railroad company, a franchise to construct a street railroad upon and along the Vistula road, and providing that the track shall be laid north of said road wherever practicable to do so, and at no point should the south rail of said track be laid nearer than twenty feet to the center of said road. In 1895 said corporation constructed through the premises a railroad, connecting the town of Mishawaka with the city of South Bend, along the north side of the Vistula road, occupying a strip outside the limits of the highway, varying in width from eight to twenty-five feet from the north line of the highway to the north line of the railroad track. After the company had cut and removed the timber and bushes that grew upon the line, and was engaged in constructing the grade, appellee Morgan first learned that said company proposed to and was engaged in constructing a street railroad on the land, and immediately, through his attorney, notified the company that he was informed that it had taken a large amount of gravel off the farm to be used in the construction of said road, and that he was the owner of an undivided one-third of the land, subject only to the life estate of the widow of John M. Miller, deceased; that the widow had no right to sell the gravel, and he should hold the company liable to him for one-third in value of the same. Henry C. and Martha E. Miller, the other two beneficiaries of the will, and the widow of John M. Miller, had knowledge of the location and construction of said railroad from beginning to end, and neither the said Henry, Martha, the widow of John M. Miller, or appellee, at any time during the construction and operation of said railroad, prior to February 23, 1900, made any protest or objection to the location, construction, or operation of said railroad upon the land in controversy. The railroad was completed in 1895, and from January 1, 1896, to the commencement of this action cars have been continuously run over the same at intervals of fifteen minutes, and have carried from 1,500 [162 Ind. 334] to 4,000 passengers daily, including a large number of laborers who lived in one and worked in the other of said cities. On March 15, 1899, appellant Indiana Railway Company, by consolidation, succeeded to the rights and obligations of the said General Power & Quick Transit Company, and after said last-mentioned date, in addition to the cars run between South Bend and Mishawaka, passenger and express-cars from Goshen and Elkhart were run over said road to Mishawaka and South Bend, carrying passengers and light freight. The cost of construction of said railroad was $ 8,000 per mile. The widow of John M. Miller died in August, 1897, and in June, 1899, Henry C. and Martha E. Miller, the other tenants in common, and James S. Ellis, as executor of the will of John M. Miller, pursuant to the will, for value, executed to appellee a deed conveying to him the whole of said farm. On February 23, 1900, appellee, then being the owner of all of said farm, demanded of appellant payment for the value of the land occupied by said railroad.

The conclusion of law was that appellee is the owner in fee of the land described in the complaint, and entitled to the...