Lake Erie & Western Railroad Company v. Ziebarth

• Decision Date: 15 February 1893
• Docket Number: 669
• Citation: 33 N.E. 256,6 Ind.App. 228
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & WESTERN RAILROAD COMPANY v. ZIEBARTH

33 N.E. 256

6 Ind.App. 228

LAKE ERIE & WESTERN RAILROAD COMPANY v. ZIEBARTH

No. 669

Court of Appeals of Indiana

February 15, 1893

From the Clinton Circuit Court.

Judgment affirmed.

S. O Bayless, C. G. Guenther and W. E. Hackedorn, for appellant.

J. V Kent and R. W. Irwin, for appellee.

OPINION

DAVIS, J.

The complaint filed by appellee in this case against appellant is in two paragraphs. The first paragraph is in the ordinary form of trespass on real estate, and alleges appellant's wrongful breaking into and entering upon certain of appellee's lands; the wrongful taking down and removing of a fence standing thereon; the plowing up of the surface of the earth, making embankment and ditches, etc., and the wrongful appropriation of said lands, and the disturbing of appellee in the use and occupation thereof, and preventing her from using and enjoying the same, etc. The third paragraph of the complaint (the second having been withdrawn) also counts in trespass. The same acts are alleged as in the first, and, in addition thereto, avers in substance: That appellant then and there took possession of said real estate, described as follows: beginning on the section line three hundred and thirty and one-half feet east of the northwest corner of section eleven (11) in township twenty-one (21) north, in range one (1) east; thence east on said section line to the northeast corner of the west half of the northwest quarter of said section eleven (11); thence south fifty (50) feet; thence west parallel with said section line to a point due south of the place of beginning; thence north fifty (50) feet to the place of beginning, and permanently appropriated all of the same to its own use and purpose, and has entirely destroyed its value for any other purpose, and wholly deprived appellee of the use and occupancy of the same; that appellant had not in any manner condemned, nor in any legal manner appropriated the land, nor paid or tendered any sum of money to appellee for the land and its use; that appellee is the owner of other real estate adjoining the lands so taken, and that by said taking and appropriation appellee's farm has been greatly lessened in value, etc.

The first paragraph of the answer was a general denial. Briefly stated, the averments of the second paragraph of the amended answer show the following facts:

That on and prior to the 25th day of July, 1870, the Lafayette, Muncie & Bloomington Railroad Company, which was a corporation duly organized under the laws of this State, and invested with all the rights and powers ordinarily granted by law to corporations organized in this State for the purpose of building and operating railroads, was projecting a line of railroad from Muncie, Indiana, to the State line between the States of Indiana and Illinois, which projected line of railroad extended into and through Clinton County, Indiana; that on said day it procured from one Jacob Heise, a deed, or grant, of right of way over certain of his lands, which reads as follows:

"This indenture made this 25th day of July, 1870, between Jacob Heise, of the first part, and the Lafayette, Muncie & Bloomington Railroad Company, a corporation duly organized and incorporated under the laws of the State of Indiana, of the second part, witnesseth:

"That the party of the first part, in consideration of the sum of one dollar in hand, paid by the party of the second part, hereby conveys and warrants to said party of the second part, its successors and assigns, the right of way for the construction and operation of said company's railroad, being a strip of land one hundred feet in width upon such route and line as the said company has located, or may locate and construct, the said road through and over the following described land in Clinton County, in said State, to wit:

"The west half of the north-west quarter of section eleven (11), in township twenty-one (21) north, range one (1) east.

"This conveyance shall include all materials necessary to construct and maintain said railroad, which may be found in the strip of land aforesaid.

"The estate granted hereby is upon condition that the strip of land aforesaid shall be used for said railroad purposes only, and when the same shall, after the road is constructed, cease to be used for such purposes, then the same shall revert to the party of the first part, his heirs and assigns."

Then follows the formal conclusion, signature, and acknowledgment.

It is further averred in the answer that instead of building its line of road over the Heise land, the Lafayette, Muncie & Bloomington Railroad Company procured another right of way over land lying immediately north of the Heise land, over which it located and constructed its line of railroad; that long after such construction the appellant, through certain proceedings which are set out, in February, 1887, became the successor and owner of all the rights of the Lafayette, Muncie & Bloomington Railroad Company, including said right of way mentioned in said deed, and that since said date appellant had been engaged in the ordinary operation of its railroad, improving its roadbed and its facilities for the transaction of its business with the public, at the stations and towns along its line of road; that in the summer and fall of the year 1889, its increasing business having made additional switching facilities necessary at its station or town of Boylston, which town had been built up partly on the Heise land and partly on adjoining land, appellant entered and constructed such switch upon the land described in the complaint, it being a part of the land described in the Heise grant; that appellee, being a daughter and one of the heirs of the said Jacob Heise, had inherited from him an interest in the land described in the Heise grant, and on December 14, 1881, had purchased the remaining interest therein from the widow and other heirs of Jacob Heise.

The first paragraph of reply to the second paragraph of answer was a general denial. The second paragraph of reply, in substance, admits that appellee acquired the land partly by descent and partly by purchase, as alleged in the answer; that the said Jacob Heise, who was her ancestor, while he was the owner of said real estate, at the time in the answer stated, executed the deed of right of way set out in the answer. It then avers, in substance, that more than nineteen years before the bringing of this action, and the doing of the wrongs and acts in the complaint alleged, appellant's predecessor, being the grantee in said grant, wholly abandoned said grant and neglected and refused to build and erect its said railroad over and upon the right of way granted, but that appellant's predecessor in title, before the building of said railroad, and after the execution of the said grant by Heise, procured the right of way from one Lewis V. Boyle, across lands lying to the north of appellee's said lands, upon which it built and erected its railroad, and did not build its said road upon appellee's land, or upon any of the lands so granted by Jacob Heise.

The third paragraph of the reply, in addition to the material facts set out in the second paragraph, alleges, in substance, that said deed was executed upon condition, and the sole and only consideration for said deed was that the grantee named therein would permanently locate and build the main line of its railroad on and across said lands, and that said grantee had failed and refused to build and erect its road over and upon said right of way, and that neither said appellant nor its predecessors, prior to the unlawful entry in 1889, did any act indicating an intention to perfect said easement, or to claim any right or privilege under said grant, but on the contrary, by appellant's predecessor procuring a right of way over other and different lands, and building its railroad thereon, and by all of appellant's and its predecessors aforesaid acts, appellee was caused to believe that said right of way over said land was abandoned, and that she had purchased the undivided interests of her co-tenants in the real estate, and paid full value therefor, and that since such purchase in 1881, she had adversely held and owned said real estate, paid the taxes thereon, and cultivated and improved the same with full notice and knowledge of appellant, and that appellant was estopped, etc.

The case was tried by a jury, and resulted in a verdict and judgment in favor of appellee for three hundred and seventy-five dollars.

The errors assigned are:

First. The court erred in overruling the demurrer to the first and third paragraphs of the complaint.

Second. The court erred in overruling the demurrers to the second and third paragraphs of reply to the second paragraph of the amended answer.

Third. The court erred in overruling appellant's motion for judgment in its favor on the answers to interrogatories returned by the jury with the general verdict.

Fourth. The court erred in overruling the motion for a new trial.

The first error assigned has been waived by reason of the failure to discuss it.

Counsel for appellant insist that the theory of both paragraphs of the reply is "a forfeiture and estoppel in avoidance of the matters contained in the second paragraph of the answer." Their contention is that "the facts charged in either of these paragraphs do not constitute a forfeiture, and can not be made available in this action."

The position of counsel for appellant is that the title to the land vested in the railroad company on the execution of the deed, and that the title conveyed depended upon a condition subsequent; that conditions subsequent are not favored in...