McCormack v. Terre Haute & Richmond R.R. Co.
| Decision Date | 06 June 1857 |
| Parties | McCormack v. The Terre Haute and Richmond Railroad Company |
| Court | Indiana Supreme Court |
From the Hendricks Circuit Court.
The judgment is affirmed with costs.
Christian C. Nave, for appellant.
Horatio C. Newcomb and Jonathan S. Harvey, for appellee.
In February, 1855, McCormack filed his petition in the Hendricks Circuit Court, setting forth that he was the owner of certain lands in Hendricks county (describing them); that the railroad company had taken and appropriated to its own use, a strip of said lands six rods wide, and extending across an entire quarter-section from west to east--claiming the right to do so under an act to incorporate said company, approved January 26, 1847; that by such appropriation he is obstructed and injured in passing across the road to the other parts of his lands in the same tract, lying south of the railroad. He claimed damages in all to the amount of 1,000 dollars.
He therefore prayed a writ directed to the sheriff of Hendrick's county, commanding him to cause his damages by reason of the premises to be assessed by a jury of not less than six men, etc.
The writ was accordingly issued, notice given to the company, and an assessment of 375 dollars was made and returned into Court. In this respect, McCormack seemed to think he had a right to proceed under 2 R. S. p. 193.
At the next term, the railroad company appeared by attorney, and moved to set aside the writ and all proceedings under it. This motion the Court sustained.
The railroad company then filed a demurrer to the petition assigning for cause that the Court had no jurisdiction, and that the complaint did not contain sufficient facts. Demurrer sustained, and judgment for the company. To this ruling McCormack excepted and prayed an appeal.
The only question is, had McCormack a right to proceed against the railroad company under the Revised Statutes supra?
The case of Eward v. Lawrenceburgh, etc., R. R. Co., 7 Ind. 711, is entirely different from the case made here, as will be seen in the sequel. The cases of Lafayette, etc., R. R. Co., v. Smith, 6 Ind. 249, and New Albany, etc., R. R. Co., v. Connelly, 7 Ind. 32, are more like this in principle.
The act incorporating the company is chapter 23, Local Laws of 1847 p. 77. The 37th section declares it to be a public act. The Courts will therefore take notice of its provisions judicially. The 15th section relates to the mode of procuring the right of way, and is in these words: "That in all cases where any person through whose land the road may run, shall refuse to relinquish the same, or where a contract between ...
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