Midland Railway Company v. Smith
| Decision Date | 27 January 1888 |
| Docket Number | 13,063 |
| Citation | 15 N.E. 256,113 Ind. 233 |
| Parties | The Midland Railway Company et al. v. Smith |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is reversed, with costs, with directions to overrule the demurrer to the third paragraph of answer.
T. J Kane and T. P. Davis, for appellants.
R. R Stephenson and W. R. Fertig, for appellee.
This suit was commenced by Samuel M. Smith to enjoin the appellant, the Midland Railway Company, and the other defendants, who are alleged to be the managers and contractors engaged in constructing the appellant company's line of railway, from continuing the work of constructing the railroad over the plaintiff's lands until due compensation shall have been made for the land so to be taken and occupied.
The complaint alleged that the railway company, through its managers and contractors, had unlawfully entered upon the plaintiff's lands, and that they were engaged in digging and excavating the soil thereof, and grading a road-bed thereon, and throwing down the fences and exposing his fields and crops to trespassing animals. The plaintiff charged that the railway company and the other defendants had been, and were, engaged in the above mentioned acts, without having in any manner acquired the right to enter upon his lands for the purpose of constructing a railway thereon, and without having made or tendered compensation for the land, and without having in any manner obtained his consent so to do, and that he would be damaged, etc.
The appellant railway company contends that the facts put forward in the complaint are not sufficient to bring the case within the principles which govern when the jurisdiction of a court of equity is invoked to grant the extraordinary remedy prayed for in the present case. In this we do not concur. The inference to be drawn from the complaint is, that the railway company had recently, before the beginning of the suit entered upon the plaintiff's land without his consent, and was then engaged in constructing its road, digging up the soil, etc.
The general rule, as stated by a recent text-writer is, that "a corporation having the right to take lands in the exercise of the power of eminent domain, if it enters upon them without making just compensation to the owner, a court of equity will intervene for the protection of the owner until just compensation is made, if he applies seasonably." 2 Wood Railway Law, 794.
Where a railroad, or other corporation entitled to exercise like powers, enters upon land without either the consent of the owner, or by the exercise of the right of eminent domain, such entry is wrongful and may be enjoined. This is the accepted rule of decision in this State. Pittsburgh, etc., R. W. Co. v. Swinney, 97 Ind. 586, 594; Lake Erie, etc., R. W. Co. v. Kinsey, 87 Ind. 514; Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386, 6 N.E. 8, and cases cited. There was no error in overruling the demurrer to the complaint.
The court sustained a demurrer to the third paragraph of the railway company's answer, and this ruling presents what we regard as the only other question necessary to be considered in the case. The material averments in this paragraph of answer are, in substance, that, in the year 1873, and for several years subsequent thereto, the Anderson Lebanon and St. Louis Railroad Company was engaged in constructing a railroad from Anderson, in Madison county, through Noblesville to Lebanon, in Boone county, Indiana, the above named company being then the owner of all the property and rights to which the defendant, the Midland...
To continue reading
Request your trial
-
Midland Ry. Co. v. Smith
... ... Stephenson & Fertig, for appellee.Mitchell, C. J.This suit was commenced by Samuel M. Smith to enjoin the appellant, the Midland Railway Company, and the other defendants, who are alleged to be the managers and contractors engaged in constructing the appellant's line of railway, from ... ...