Indianapolis & C. Traction Co. v. Arlington Tel. Co.

• Decision Date: 23 May 1911
• Docket Number: No. 7,237.,7,237.
• Citation: 47 Ind.App. 657,95 N.E. 280
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & C. TRACTION CO. v. ARLINGTON TELEPHONE CO.

47 Ind.App. 657

95 N.E. 280

INDIANAPOLIS & C. TRACTION CO.

v.ARLINGTON TELEPHONE CO.

No. 7,237.

Appellate Court of Indiana, Division No. 2.

May 23, 1911.

Appeal from Circuit Court, Rush County; W. M. Sparks, Judge.

Action by the Arlington Telephone Company against the Indianapolis & Cincinnati Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.Smith, Cambern & Smith, for appellant. Douglass Morris, for appellée.

ADAMS, J.

Action by appellee against appellant to recover damages accruing on account of being compelled to reconstruct its telephone lines across appellant's right of way. The complaint was in one paragraph, to which a demurrer for want of sufficient facts was overruled, and the cause was put at issue by general denial. The evidence was heard by the court, and upon request of both appellee and appellant the court made a special finding of facts, and stated its conclusions of law thereon. Appellant excepted to the conclusions of law, motion for a new trial was overruled, and judgment rendered upon the special finding in favor of appellee. The errors assigned and relied upon for reversal are: (1) Error of the court in overruling the demurrer to the amended complaint. (2) Error of the court in stating its conclusions of law. (3) Error of the court in overruling appellant's motion for a new trial.

[1] It is unnecessary to separately consider the first specification of error. The rule is well settled by the decisions of the Supreme and this court that the overruling of a demurrer to a complaint is not material in an action where the court finds the facts, and states conclusions of law thereon. In such case, an exception to the conclusions of law presents the same questions as those arising on demurrer to the complaint. Fry v. Hare (1906) 166 Ind. 417, 77 N. E. 803;Board v. Wolff (1905) 166 Ind. 328, 76 N. E. 247;Ross v. Van Natta (1905) 164 Ind. 557, 74 N. E. 10;Goodwine v. Cadwallader (1902) 158 Ind. 202, 61 N. E. 939;Woodward v. Mitchell (1895) 140 Ind. 406, 39 N. E. 437;Elsman v. Whalen (1907) 39 Ind. App. 350, 79 N. E. 514, 1072;Chicago, etc., R. Co. v. Yawger (1900) 24 Ind. App. 460, 56 N. E. 50.

[2] It is also the settled law of this state that an exception to the conclusions of law admits that the facts have been fully and correctly found for the purposes of the exception. National State Bank v. Sanford Co., 157 Ind. 10, 60 N. E. 699;Blair v. Curry, 150 Ind. 99, 46 N. E. 672, 49 N. E. 908;City of Indianapolis v. Board, 28 Ind. App. 319, 62 N. E. 715;Ladd v. Kuhn, 27 Ind. App. 535, 61 N. E. 747;Austin Mfg. Co. v. Smithfield township, 21 Ind. App. 609, 52 N. E. 1011.

[3] The court found the facts to be substantially as follows: The appellee, the Arlington Telephone Company, is a corporation, organized and in operation in 1902, with its office in the unincorporated village of Arlington, Rush county, Ind.; that Main street in the village of Arlington runs north and south; that the right of way of the Cincinnati, Hamilton & Dayton Railway from the east side of said village extends slightly north of west through the same; that north of the Cincinnati, Hamilton & Dayton right of way, a highway, known as Phillips' alley, extends west from Main street for a distance of 165 feet, where it opens into another highway known as the north and south alley, which extends north one block, and opens into a street extending east and west; that said north and south alley was not, and never had been, opened for travel south of the point where it joins Phillips' alley; that the real estate west of Main street, south of Phillips' alley, and north of the Cincinnati, Hamilton & Dayton right of way was owned by one Rebecca Sampson, and was unimproved, except a store building was located on the east 60 feet thereof; that the west part was uninclosed and unimproved, and had been in such condition for 40 years; that the appellee in 1902 acquired the right from Mrs. Sampson to erect a telephone pole near the west end of said real estate, and near the south line thereof; that, pursuant to said right, the appellant erected a pole which remained at that place, and was used by appellantuntil the latter part of December, 1904, when the plaintiff's wires were placed underground, and another pole erected in the north and south alley, near the east line thereof, and immediately north of Phillips' alley; that in 1902 appellant had strung 28 telephone wires on the pole located on the property of Mrs. Sampson, and by means of said wires was giving telephone service to more than 56 patrons of said company; that said wires at the point of intersection with appellant's right of way were 25 feet high; that appellant is a corporation, organized in 1903, authorized to construct an interurban railway from the city of Indianapolis to the city of Rushville, through the village of Arlington, and to use electricity as its sole motive power; that the right of way of the appellant is 66 feet wide, and through the village of Arlington lies immediately north of the right of way of the Cincinnati, Hamilton & Dayton Railway Company; that appellant in June, 1903, acquired by purchase from Mrs. Sampson the vacant property upon which the telephone pole hereinbefore mentioned was located as a part of its right of way; that appellant erected poles along said right of way on which it suspended its trolley wires, and also erected poles on which it fastened its high tension wires, for the purpose of transmitting electricity at a high voltage, to wit, 33,000 volts, for the propelling of its cars; that on November 25, 1904, there were six of said high-tension wires on said poles, the highest of which at the point of intersection with appellee's telephone wires was 32 feet above the ground; that on said day appellant notified the appellee in writing that it intended to put up trolley and other wires “over and across the highway at Arlington, along which you are now, as we understand, maintaining a telephone line,” also stating that it will be necessary for the appellee to adjust the height of its wires so that the same will not come in contact with appellant's wires, and saying further: “This you can do by setting a high pole on each side of our right of way and running your wires above our wires, or you may run a lead covered cable under our tracks, from one side of the right of way to the other. The latter, we understand, is more desirable for telephone purposes, so as to avoid all interference from electric current on our line. It will be desirable both for you and for us that you attend to this matter promptly as the electric current will be turned into our lines in a short time. If you desire to put a lead covered cable under the right of way, and will notify us, we will execute to you a written license authorizing the same.” On November 29, 1904, the appellee replied to this notice, saying: “We will comply...