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

• Decision Date: 24 May 1899
• Citation: 53 N.E. 1042,25 Ind.App. 138
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. R. CO. v. GRIFFIN et al.

25 Ind.App. 138

53 N.E. 1042

LAKE ERIE & W. R. CO.

v.GRIFFIN et al.¹

Appellate Court of Indiana.

May 24, 1899.

Appeal from circuit court, Henry county; W. O. Barnard, Judge.

Action by John W. Griffin and another against the Lake Erie & Western Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Henley, J., dissenting.

John B. Cockrum, Eugene H. Bundy, William A. Brown, and W. E. Hackedorn, for appellant. M. E. Forkner and D. W. Chambers, for appellees.

BLACK, J.

The complaint of the appellees, John W. Griffin and William L. Cory, against the appellant, a demurrer to which for want of sufficient facts was overruled, showed that on a day not stated in June, 1881, the New Castle & Rushville Railroad Company had located the center of its right of way on the line dividing the east one-half of a certain quarter section of land in Henry county, Ind., from the west one-half thereof, and for the purpose of its right of way desired to purchase a strip of land two rods in width off the east side of said west one-half; that the appellee Griffin was then the owner in fee of said west one-half, it being an improved and cultivated farm of said Griffin, and he and the said New Castle & Rushville Railroad Company then entered into an agreement whereby the former sold, conveyed, and transferred to the latter, by a good and sufficient deed, said strip of land, and said railroad company, as the sole consideration of said conveyance, agreed by and in said deed to build on the line dividing the right of way conveyed from the residue of said Griffin farm a good and sufficient fence against all hogs, cattle, horses, sheep, and other stock of every description; that said deed on said day, after having been duly executed, was delivered to said railroad company by said Griffin, but that said railroad company and its successors had failed and refused to record it, and the appellees had no copy thereof, and were therefore unable to set out the same or a copy thereof as an exhibit; that by mesne conveyances from said New Castle & Rushville Railroad Company the appellant had succeeded to all rights and obligations, including the obligation to build and perpetually maintain said fence, of said New Castle & Rushville Railroad Company, and was the owner, and since January 1, 1891, had been managing and operating said railroad; that said New Castle & Rushville Railroad Company and all subsequent owners, including the appellant, had failed and refused to build and maintain said fence, although often requested by the appellees; that said Griffin had continued to be the owner in whole or in part of said land from the date of the execution of said deed to the commencement of this action; that on the 1st of January, 1895, he sold and conveyed by good and sufficient warranty deed to the appellee Cory the undivided one-half of said one-half quarter, and since that time the appellees had been the owners of said land as tenants in common; that at the time of said conveyance said Griffin also sold and conveyed to said Cory all rights in all covenants running with said land, and especially under the deed conveying right of way to the New Castle & Rushville Railroad Company; that on the 26th of April, 1897, said Griffin sold, transferred, assigned, and set over to said Cory the undivided one-half of all rights of action then held by him against the appellant growing out of the violation by it of the condition and stipulation contained in said deed in respect to building and maintaining a fence along the right of way; that by reason of appellant's failure to build and maintain said stock-proof fence from the 1st of January, 1891, up to the filing of the complaint herein, being the 27th of April, 1897, the rental value of said land had been greatly reduced, to wit, in the sum of $75 per year, to the damage of the appellees $450; wherefore, etc. The appellantobjects to the complaint “for the reason that the only damages shown by it to have been sustained by the plaintiffs by reason of a failure to repair the fence consists of an alleged reduction or diminution in the rental value of the whole tract of land.”

The question as to whether or not there may be a recovery for such damage as stated in the complaint is not conclusively settled by former decisions authorizing a recovery in such cases for the killing of animals, injury to crops, expense of building or repairing the fence, etc., in which diminution of rental value was not alleged in pleading or shown in evidence. The fact that certain injuries specified have supplied the measure of damages in particular cases in which such injuries were shown to have occurred as the result of breach of the contractual duty does not necessarily lead to the conclusion that the measure may not be supplied by other injuries arising from such cause; being natural results of such breach of obligation, or such effects thereof as may be reasonably supposed to have been contemplated by the parties when the duty was assumed.

In Lawton v. Railroad Co., 8 Cush. 230, where the measure of damages was the cost of erecting the fences according to the agreement, it was said that if the plaintiff had proved injury to his lands from want of the fences, on which no evidence was offered, another question might have been raised. The covenant shown in the complaint is one which runs with the land. It binds the appellant, the successor of the railroad company to which the right of way was granted, and by which the covenant to construct and maintain the fence was made, and it operates in favor of the appellees; one of them being the covenantee still retaining part ownership of the land, and the other being the grantee and assignee of the covenantee and his co-tenant. Railroad Co. v. Cosand, 6 Ind. App. 222, 33 N. E. 251; Railroad Co. v. Power, 15 Ind. App. 179, 43 N. E. 959;Railway Co. v. Fisher, 125 Ind. 19, 24 N. E. 756; Railroad Co. v. Priest, 131 Ind. 413, 31 N. E. 77;Huston v. Railroad Co., 21 Ohio St. 235. In Railway Co. v. Barnes, 116 Ind. 126, 18 N. E. 459, it was held that a railroad company is bound to pay for animals killed by its trains in cases where the animals enter upon the track through the fault of the company in failing to fence a crossing in accordance with the terms of the contract. In Railway Co. v. Wray, 52 Ind. 578, in the contract for the right of way the railroad company agreed to pay the landowner a certain sum per acre for the land appropriated, and to build and construct a good and sufficient fence on each side of the railway across the land, and to build and construct two good and sufficient farm crossings. The complaint alleged failure to pay and failure to construct the fence and crossings, and stated generally that the plaintiff was damaged in a certain sum. An instruction was approved whereby the court stated the measure of damages to be the cost of constructing the fences, the cost of putting in cattle guards and farm crossings, and the amount per acre specified in the contract. In Railway Co. v. Adams, 112 Ind. 302, 14 N. E. 80, it was held that there is a right of action to recover the amount which it would fairly cost to erect such fences as the contract called for, together with any special damages which the plaintiff may have sustained. In Railway Co. v. Power, 119 Ind. 269, 21 N. E. 751, the court adhered to the rule that “for the breach of a contract by a railroad company with a landowner to fence its right of way the cost of erecting the fence, and also special damages for animals killed, for damage done by trespassing animals, and for loss of pasturage, may be recovered.” In Railroad Co. v. Cosand, 6 Ind. App. 222, 33 N. E. 251, it was held that in such case the owner of the land was entitled to recover for being deprived of the use of a pasture, and for being deprived of the use of a passageway which the company covenanted to make, and that evidence of the character and condition of the land was proper to aid the jury in arriving at the correct amount of damages by reason of loss of crops and pasturage. In Railway Co. v. Sumner, 106 Ind. 55, 5 N. E. 404, the deed of conveyance of the right of way recited that it was made upon the consideration of a certain sum, and that the railroad company covenanted to make a stock pass and a farm crossing, and to fence the strip, and to locate and maintain a depot on the land. The breaches alleged were failure and refusal to establish and maintain a depot, and failure and refusal to erect and maintain fences. The damages assessed included (1) the cost of erecting the fence; (2) damages for failure to erect the fence, embracing certain amounts for hogs killed, loss of pasture for three years, and loss from trespassing animals, and (3) an amount for failure to erect and maintain a depot. In Emmons v. Railway Co., 35 Minn. 505, 29 N. W. 202, it was held that under a statute providing that for failure or neglect to fence its railroad, etc., the company should be liable for all damages sustained by any person in consequence of such failure or neglect, and that “damages might be recovered for injury done to a farm by rendering it less fit for pasturing cattle, in consequence of failure of the company to fence its road, as required by the statute.” The court did not decide upon the measure of damages. On a subsequent appeal in the same case (38 Minn. 215, 36 N. W. 640) it was held that the diminution in the rental value of the farm from such cause was a proper measure of damages, and that such damages were not necessarily limited to what it would cost to build a fence. The same court in Nelson v. Railroad Co. (Minn.) 42 N. W. 788, adhered to the former decisions, and said, concerning rental value, that it “is but another form of saying the value of the use, and means simply the value of the use of the land for any purpose for which it is adapted in the hands of a prudent and discreet occupant upon a judicious system of...