Lake Erie and Western Railway Co. v. Griffin

• Decision Date: 27 November 1883
• Docket Number: 10,757
• Citation: 92 Ind. 487
• Parties: Lake Erie and Western Railway Company v. Griffin et al
• Court: Indiana Supreme Court

92 Ind. 487

Lake Erie and Western Railway Company v. Griffin et al

No. 10,757

Supreme Court of Indiana

November 27, 1883

Petition for a Rehearing Overruled Jan. 2, 1884.

From the Carroll Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to set aside the verdict of the jury and proceed in the cause, in accordance with this opinion.

H. W Chase, F. S. Chase and F. W. Chase, for appellants.

J. R Coffroth, S. A. Huff, G. O. Behm and A. O. Behm, for appellees.

OPINION

Howk, C. J.

This suit was commenced by the appellees against the appellant and the Lafayette, Muncie and Bloomington Railroad Company, in the Tippecanoe Circuit Court. The appellant's demurrer was sustained to the original complaint, to which ruling the appellees excepted, and, with leave of the court, filed an additional second paragraph of complaint. Thereupon, on the appellees' motion, the venue of the cause was changed to the court below.

In this latter court, the cause was put at issue and tried by a jury, and a special verdict was returned, upon which the court rendered judgment for the appellees, as prayed for in the second paragraph of their complaint. From this judgment the appellant has appealed to this court, and, by a proper assignment of errors, has called in question a number of the decisions of the trial court, which will be considered and passed upon in the order of their assignment.

The first error complained of by the appellant, in argument, is the overruling of its demurrer to the second paragraph of the complaint. In this paragraph of their complaint, the appellees alleged, in substance, that each of the defendants was a railroad corporation of this State, organized under the general laws thereof; that on and before the 24th day of October, 1875, the appellees were the owners in fee simple of thirty-eight feet off of the west end of lot number one, in O. L. Clark's addition to the town, now city of Lafayette, in Tippecanoe county, abutting on an alley twelve feet wide; that on and before the day last named, the defendant the Lafayette, Muncie and Bloomington Railroad Company owned and operated a line of railway through Tippecanoe county, along and contiguous to the above described real estate; that, on the last named day, the said Lafayette, etc., R. R. Co. appropriated the above described real estate for the use of its track and necessary side-tracks, water-stations, depots, etc., by filing its act of appropriation in the office of the clerk of the circuit court of Tippecanoe, and serving notice of such appropriation on the appellees, pursuant to the act of May 11th, 1852, providing for the incorporation of railroad companies; that thereupon such proceedings were had therein, as that appraisers were appointed by the Tippecanoe Circuit Court to appraise the damages of the appellees occasioned by such appropriation; that afterwards, on December 14th, 1875, the said appraisers made and filed in the clerk's office of such court their report, awarding the appellees the sum of $ 2,400 as their said damages; that, feeling aggrieved by such award, appellees filed exceptions thereto and appealed therefrom to the Tippecanoe Circuit Court on the 14th day of December, 1875; that afterwards, on December 28th, 1875, on the appellees' application, the venue of such appeal was changed to the Carroll Circuit Court; that in the latter court, on the 16th day of May, 1877, such appeal was tried and final judgment was rendered therein in favor of the appellees and against the Lafayette, Muncie and Bloomington Railroad Company, on account of the appropriation of such real estate, in the sum of $ 5,008.66 and the cost of suit, taxed at $ -----; and that said judgment remained in full force, unreversed and unsatisfied in whole or in part.

The appellees further averred that prior to October 20th, 1875, the Lafayette, Muncie and Bloomington Railroad Company had executed a mortgage to Abram B. Bayless, as trustee, to secure the payment of the sum of $ 600,000 in the bonds of such company, and also another mortgage to the New York Loan and Trust Company, as trustee, to secure the further sum of $ 1,750,000 in the bonds of such company, both of which mortgages were upon the franchises and property, both real and personal, then owned or thereafter to be acquired by such railroad company; that afterwards, in 1879, in a certain suit then pending in the circuit court of the United States for the district of Indiana, wherein the said Bayless, as trustee, was complainant, and the said Lafayette, Muncie and Bloomington Railroad Company and the trustee in said second mortgage were defendants, decrees of foreclosure of both mortgages were rendered by the court, and a commissioner was appointed to sell the mortgaged property; that afterwards, on April 28th, 1879, the said commissioner sold all the franchises, rights, property and effects of the last named railroad company to certain named persons, at the instance of, in trust for and on account of the owners and holders of the bonds, so secured by both of such mortgages; that afterwards, in 1879, the owners and holders of such mortgage indebtedness organized a railroad corporation, under the name of the Muncie and State Line Railroad Company, pursuant to the laws of this State, for the purpose of owning, maintaining and operating the said line of railway so owned by the Lafayette, Muncie and Bloomington Railroad Company, with all its franchises, rights and property; that after the incorporation of the Muncie and State Line Railroad Company, at the instance and request and by the procurement of the owners and holders of the mortgage bonds, the purchasers at such commissioner's sale conveyed, transferred and delivered to such last named company all the franchises, rights, property and effects so purchased by them as aforesaid; and that the Muncie and State Line Railroad Company, by change of its corporate name, had become and was the appellant, "the Lake Erie and Western Railway Company," and was then possessed of and enjoying all the franchises, rights, property and effects of the Lafayette, Muncie and Bloomington Railroad Company.

And the appellees averred, that from and after the said condemnation of their said real estate, the said Lafayette, Muncie and Bloomington Railroad Company entered upon and occupied the premises so condemned until the appellant's succession to the rights and franchises of the former railroad company as aforesaid; and that the appellant, upon such succession, entered upon, used and occupied the condemned premises, and from thence until the bringing of this suit had, and still continue to occupy and use the premises so condemned as aforesaid. Wherefore the appellees prayed judgment that the appellant, the Lake Erie and Western Railway Company, might be decreed to pay the amount of the said judgment of the Carroll Circuit Court, with the interest and costs thereon, to wit, the sum of $ 10,000, and for other proper relief.

We are of opinion, that the facts stated in this paragraph of complaint, if true, and the demurrer admits their truth, are sufficient to constitute an equitable cause of suit in favor of the appellees and against the appellant. Under the averments of the paragraph, the appellees had recovered against the Lafayette, Muncie and Bloomington Railroad Company, in its proceedings for the appropriation of appellees' real estate, a valid judgment, which remained in full...