Louisville v. Malott
| Decision Date | 19 September 1893 |
| Parties | LOUISVILLE, N. A. & C. RY. CO. v. MALOTT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Monroe county; R. W. Miers, Judge.
Action by Josephine F. Malott and others against the Louisville, New Albany & Chicago Railway Company to enjoin the use by defendant, for its own purposes, of a certain private railroad switch across plaintiffs' land, and for damages for such use during six years preceding the commencement of the action. From a judgment for plaintiffs, defendant appeals. Affirmed.
E. C. Field and W. S. Kinnan, for appellant. N. Crooke and J. E. Boruff, for appellees.
In 1883 the appellees, Josephine F. Malott and others, as stated in appellant's brief, conveyed to the Hoosier Stone Company a tract of land in Lawrence county, removed from the main line of appellant's railroad about three-fourths of a mile. Appellees also owned at this time the lands situated between the main line of railroad and the land conveyed to the Hoosier Stone Company, and in the deed of conveyance to the stone company conveyed a right of way over the intermediate lands. The words of conveyance are as follows: “This indenture witnesseth, that William P. Malott and Florence O. Malott, his wife, and John E. Malott and Josie F. Malott, his wife, of Lawrence county, in the state of Indiana, convey and warrant to the Hoosier Stone Company, of Lawrence county, in the state of Indiana, for the sum of three thousand dollars, the following real estate in Lawrence county, in the state of Indiana, to wit: The southeast quarter of the northeast quarter of section thirty-three, town six north, range one west, containing forty acres, more or less,-together with a right of way for railway switch track from line of the Louisville, New Albany and Chicago Railway to said lands over lands of grantors, in section 34, same township and range.” The railway switch track was put in right after the deed was executed. The stone company opened up a quarry, and have ever since been shipping stone over said track, on appellant's cars, to the different markets of the country. On the 1st day of November, 1890, appellees filed their complaint against appellant, stating the foregoing facts, and averring that said right of way was “appurtenant to said forty-acre tract,” and “for the purpose of enabling said Hoosier Stone Company to transport its stone quarried upon said forty-acre tract of land to market, and for no other purpose, and for the use of the Hoosier Stone Company only.” The complaint further avers that appellant the Louisville, New Albany & Chicago Railway Company, without right or any authority whatever from appellees, has been for the past six years, and now is, using said switch and right of way for its own purposes, and for railroad purposes generally, and especially for general switching purposes; that said railway company has been during said period, and now is, switching off trains, often long freight trains, onto said switch and right of way, and allowing them to remain there for a long period of time, while waiting for other trains to pass on the track; and said railway company is now, and has been, in the habit of switching onto said switch and right of way great numbers of freight cars coupled together, for days at a time; thus blocking up the passways of appellees from one part of their farm to another, which is situate upon each side of said switch. The complaint further states that said use, so made by said railway company of said switch, is not so done in carrying and transporting the stone of said Hoosier Stone Company from its quarry to market, but for its own separate use and benefit; claiming damages in the sum of $3,000, and praying that...
To continue reading
Request your trial