Kixmiller v. Baltimore And Ohio Southwestern Railroad Company
| Decision Date | 03 February 1916 |
| Docket Number | 8,814 |
| Citation | 111 N.E. 401,60 Ind.App. 686 |
| Parties | KIXMILLER v. BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY |
| Court | Indiana Appellate Court |
From Knox Circuit Court; B. M. Willoughby, Judge.
Action by Simon Kixmiller against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for defendant the plaintiff appeals.
Affirmed.
Shuler McCormick and Wm. Kixmiller, for appellant.
W. R Gardiner, C. K. Tharp, C. G. Gardiner, W. C. Johnson and Edward Barton, for appellee.
Appellant brought this action to recover from appellee the possession of a narrow tract of real estate, situate along the north side of the latter's right of way in the city of Vincennes, and also for damages for the alleged unlawful holding of such real estate for a number of years. The lands described in the first paragraph are 25 feet wide and 7.63 chains long, containing .28 of an acre, more or less. The strip described in the second paragraph is a part of that described in the first paragraph. It is 20 feet wide and 160 feet long. The eastern terminus is the same as that of the entire strip, and its center line is the continuation of the center line of a sidetrack extending from the west end of the entire strip to the west end of the strip described in the second paragraph of complaint. Appellee filed an answer in general denial, and the cause being at issue was tried by the court. The decision and judgment were in favor of appellee. On this appeal, appellant presents the single question of the sufficiency of the evidence to sustain the decision.
The material part of the evidence is to the following effect: January 21, 1892, the Vincennes Coal Company, under which both appellant and appellee claim, was the owner of a large tract of land, lying along the north line of the right of way of the Ohio and Mississippi Railroad Company, appellee's predecessor, which tract included the various parcels of land hereinafter mentioned. On that day the coal company conveyed to the Vincennes Board of Trade by warranty deed a two-acre tract situated along the north side of the strip described in the first paragraph of complaint, and being of the same length as the strip. Only such strip intervened between the right of way and the lands conveyed. The strip of ground was not conveyed, but by the terms of the deed a way over it was granted as indicated by the following language contained in the deed: "With a right of way over and along a strip of ground twenty-five feet in width between the above described land and the right of way of the Ohio and Mississippi Railway Company." The board of trade purchased the two-acre tract for the purpose of locating a spoke factory on it, and to that end, the next day, January 22, 1892, conveyed the tract and also the right of way over the 25-foot strip to Charles L. Wayman. Among the inducements offered to Wayman to establish the spoke factory on the two-acre tract was the agreement of the board of trade to procure the railroad company to extend a sidetrack along the strip. Thereupon, in January, 1892, the railroad company, by arrangement with the board, constructed a sidetrack branching from its main line at the west end of the strip and extending eastward over it to a point 160 feet west of the east end. At the same time Wayman, associated with others, commenced to build a spoke factory on the two-acre tract, and on its completion in a few weeks, proceeded to operate it. The Wayman Company and its successor, The Security Spoke and Manufacturing Company, continued to operate the factory until 1902 or 1903, when a part of the plant was destroyed by fire. The sidetrack was used in shipping raw material to and the finished product from the factory.
In May, 1893, appellant purchased from the coal company a tract of land adjoining the two-acre tract on the east and abutting on the north line of the railroad right of way. The deed executed by the coal company to him included in the conveyance the 25-foot strip south of the two-acre tract, but with a reservation expressed in the following language: "Subject to the right of way over said ground granted by said Vincennes Coal Company to the Vincennes Board of Trade, their successors, and assigns by its deed", etc. At the time of this conveyance, the sidetrack over the strip was being used for transportation purposes in connection with the operation of the spoke factory. In May, 1896, there was duly placed on record in the recorder's office of Knox County a plat of an addition known as the "Manufacturers' Subdivision" adjoining the two-acre tract on the west and the railroad right of way on the north. The plat designated as Hack Street, a strip of ground 20 feet wide immediately north of the right of way and abutting against the 25-foot strip. In 1901, appellant caused the lands so purchased by him to be platted as a subdivision, and May 12, 1904, caused the plat to be recorded. This plat designated, as Hack Street, a strip of ground 25 feet wide and extending the full length of the plat and abutting on the north line of the right of way of the railroad company. This strip is an extension of the 25-foot strip south of the two-acre tract.
In 1903, the Vincennes Canning and Packing Company, a corporation, was organized. Appellant was a stockholder and at one time a director in this company. To be used as a factory location, it purchased from appellant lots 1 to 5, inclusive, in the southwest corner of his subdivision and abutting on the spoke factory two-acre tract, and the strip south of it. In 1904, it built its factory on these lots. Under date of July 8, 1904, the canning company contracted with appellee to extend the spoke factory sidetrack along the 25-foot strip eastward 160 feet to the canning factory property, and thence a distance over the extension of the strip designated as Hack Street along the south side of such property, and to that end the canning company agreed to procure the necessary right of way. On the same day, the Security Spoke and Manufacturing Company executed to appellee its warranty deed purporting to convey the strip of ground 160 feet long and 20 feet wide, described in the second paragraph of complaint, for so long a time as the contract executed the same day should remain in force. Appellee thereupon extended the sidetrack the distance of 160 feet over said strip, to the canning factory property. Appellee thereafter used the entire sidetrack, including the extension thereof, in transporting raw material to and the finished product from the canning factory, continuously until 1907 when the Dyer Bean Company succeeded the canning company. The former continued to operate the factory and to utilize the sidetrack for shipping purposes. During all the time involved, the sidetrack afforded the only means of shipment to and from the factory. The evidence showed its business to be growing. In the year immediately preceding the trial, it handled 860 carloads on the sidetrack.
It is a reasonable inference from the evidence that both appellant and the canning company of which he was a stockholder and director as indicated, in the building of the plant and the sale and purchase of the lots to that end, contemplated the extension of the sidetrack, as it was very soon thereafter extended, and its use for shipping purposes in connection with the operation of the factory. During all the time involved, appellant lived one-fourth of a mile west from the sidetrack and, during a part of the time, he operated a brickyard near thereto. The evidence is sufficient to support a very strong inference that he had knowledge, at the time, that the sidetrack was being extended and of the purpose of such extension and the contemplated use and the use actually made of it throughout the succeeding years. Appellant does not deny these propositions. This action was commenced in September, 1911. He does not claim that he objected to the extension of the sidetrack. He first objected to its use shortly before commencing the action.
Proceeding to determine the sufficiency of the evidence, it is conceded by the parties that the deed by which the coal company conveyed to the board of trade the two-acre tract of land, by its terms granted...
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