Lake Erie & W. R. Co. v. Lee

• Decision Date: 19 November 1895
• Citation: 14 Ind.App. 328,41 N.E. 1058
• Parties: LAKE ERIE & W. R. CO. v. LEE et al.
• Court: Indiana Appellate Court

14 Ind.App. 328

41 N.E. 1058

LAKE ERIE & W. R. CO.

v.LEE et al.

Appellate Court of Indiana.

Nov. 19, 1895.

Appeal from circuit court, Delaware county; O. J. Lotz, Judge.

Action by William H. Lee and others against the Lake Erie & Western Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Hackedorn & Cockrum and Gregory & Silverburg, for appellant. Ryan & Thompson, for appellees.

DAVIS, J.

In June, 1871, appellees executed a right of way deed to the La Fayette, Muncie & Bloomington Railroad Company for the construction of a railroad through their farm, consisting of two adjoining tracts of land, in consideration that the company should fence the railroad, and that said appellees should have one crossing over and one under the railroad. It was then mutually agreed between the parties that the appellees should have the under crossing at the point where the railroad crossed a highway on appellees' real estate. The place was selected for the over crossing, but it was never constructed. The fence was built by the railroad company, but it was not properly maintained by the appellant. Appellant succeeded to the rights of the original company as shown in Railroad Co. v. Griffin, 107 Ind. 464, 8 N. E. 451, and at the same time came into possession of the right of way deed executed by appellees. The appellant, in 1890, over objection of the appellees, filled and obstructed the highway under said railroad, which up to that time had been used by the appellees, under the agreement before mentioned, as the under crossing provided for in the right of way contract.

Many questions are properly presented by the record, which have been fully and ably argued by counsel. We have carefully read the entire lengthy record in the light of the exhaustive briefs of counsel; and, in the view we take of the case, the decision of a few propositions disposes of all the questions sought to be raised. The first question is whether, under the circumstances, the appellees can recover for the obstruction of a private passageway on their real estate, over and upon a public highway. Counsel for appellant contend that the railroad company had no authority to grant the appellees a private way under its road, dividing their farm, over and upon a public highway, and that the appellees did not acquire any rights by such an agreement. The company, however, did have authority to agree, in consideration of the grant of the right of way, that the appellees should have a private way on their real estate, as provided in the deed, under the railroad; and, the appellees, with the consent of the company, having elected to accept such right of way over and upon the public highway, the appellant is not in a position to say that it could close up such way under the railroad, to appellees' damage, without incurring any...