Indianapolis, Delphi and Chicago Railroad Co. v. Holmes

• Decision Date: 11 April 1885
• Docket Number: 12,020
• Parties: The Indianapolis, Delphi and Chicago Railroad Company v. Holmes
• Court: Indiana Supreme Court

101 Ind. 348

The Indianapolis, Delphi and Chicago Railroad Company v. Holmes

No. 12,020

Supreme Court of Indiana

April 11, 1885

From the Carroll Circuit Court.

The judgment is affirmed, with costs.

J. C Odell and T. H. Palmer, for appellant.

J. A Sims and C. E. Taber, for appellee.

OPINION

Mitchell J.

There was a special finding of facts by the court in this case, and as the only error assigned which involves the merits of the controversy is, that the court erred in its conclusions of law upon the facts found, the case may be disposed of by a consideration of the facts deemed to be material as found by the court, and a determination of the law upon such facts.

The suit was upon a written instrument, signed by William W. Holmes, bearing date November 3d, 1871, the purport of which was that on the arrival of the first train of cars at Delphi, Indiana, from Indianapolis, over the track of railroad proposed to be built from Indianapolis, Indiana, to Chicago, Illinois, and to aid in such building, and in consideration thereof, Holmes promised to pay the railroad company, above named, $ 200, with ten per cent. interest if not paid at maturity.

The court found that the railroad company was organized pursuant to the laws of this State, in May, 1869, and received from the defendant at its date, the obligation above mentioned; that after procuring the right of way and constructing its road from Delphi to Rensselaer, a distance of about thirty miles, and expending about $ 75,000 in addition in procuring right of way between Rensselaer and Dyer, the railroad company executed a trust deed to one Morris Sharp to secure a contemplated issue of $ 900,000 of its bonds. This deed and a supplemental deed or mortgage executed to the same person for the same purpose as the first, embraced all the property, real and personal, of the company, including its franchises, excepting only two subsidies mentioned in the last deed, one voted by Union township, in White county, and one by Deer Creek township, in Carroll county. On the 18th day of December, 1880, pursuant to a decree of foreclosure had under the deeds above mentioned, all the property embraced therein was sold by a special master to a trustee of the Chicago and Indianapolis Air-Line Railway Company, which sale was duly approved by the court, and the property transferred to the last named company. This company then took possession of the property and completed the road from Dyer to Rensselaer, connecting there with that built by the plaintiff company from Delphi to Rensselaer. Subsequently it completed the road from Delphi to Howland station, in Marion county, which is a station on the Wabash, St. Louis and Pacific Railroad, about one and a half miles from the corporate limits of the city of Indianapolis, and by an arrangement with the Wabash road, under which its track was used from thence to the Union Depot, a distance of four and a half miles, the Air-Line company ran a train of cars from Indianapolis to Delphi on the 26th day of March, 1883, and continued to run them regularly from that time forward, using the track of the Wabash road from Howland station to the Union Depot.

It is found that the Indianapolis, Delphi and Chicago Railroad Company had made a survey of a line, before its property and franchises were sold, from Delphi to Indianapolis, the expense of which was paid by donations, but the Air-Line Company, which acquired its property, rights and franchises, adopted another independent route which it surveyed for itself, nothing more having been done by the first company between these points than to survey a line. It was also found that the instrument sued on never was in the actual possession of the Air-Line Company, but at all times remained in the hands of the plaintiff or its agents.

Upon the foregoing facts ...