Morgan v. Lake Shore & M.S. Ry. Co.
| Decision Date | 06 October 1891 |
| Parties | Morgan et al. v. Lake Shore & M. S. Ry. Co. |
| Court | Indiana Supreme Court |
Appeal from circuit court, Lake county.
Action by Dayton S. Morgan and E. Ashley Smith against the Lake Shore & Michigan Southern Railroad Company to recover possession of land held by defendant for railway purposes. Judgment for defendant on demurrer to the complaint. Plaintiffs appeal. Affirmed.Wood & Wood and Edward Roby, for appellants. John H. Baker, for appellee.
The complaint alleges that the appellants are the owners of the land therein described; that they derive title through the act of congress commonly called the “Swamp Land Act,” and through conveyances made by the state and by other owners; that the Buffalo & Mississippi Railroad Company was incorporated by an act of the general assembly of Indiana approved February 6, 1835; that section 1 of the act provides that “the corporation shall have power to examine, survey, mark, and locate the route of said railroad for a single or double track, with full power to diverge from a direct line when more favorable ground can be had for the construction of said road, the same not to exceed 80 feet in width;” that an act passed in January, 1846, authorized the company named in the act of 1835 to consolidate with other railroad companies; that in 1853 that company did consolidate with other companies, and located a line for a single track; that a single track, constructed in 1853, was located 562 feet north of the present track; that afterwards the company constructed the track now in use, and this track is more than 200 feet from the original track; that the track last mentioned was constructed in 1854; that the width of the track as constructed was 16 feet; that the company did not obtain a grant of the right of way, nor was it appropriated under the right of eminent domain; that in 1854 the defendant, as the successor of the former company, wrongfully built another track by the side of the track constructed in 1854, without the consent of the plaintiff, and without paying them any compensation; that the defendant claims the right to occupy the land used by it for a single track from 1854, continuously to the present time, by virtue of the statute of limitations of the state of Indiana; and that it has been in actual, open, adverse possession of the strip of land for more than 20 years.
It is very difficult to give a construction to the complaint. It contains much that should not be pleaded, and its general frame makes it almost impossible to determine upon what theory it proceeds or what its character is. Counsel claim that if it is good as a complaint for possession, or as a complaint to establish the boundaries, or as a complaint for the recovery of damages, it will repel a demurrer. This position is not tenable. It is, of course, well settled that a complaint will repel a demurrer if it entitles the plaintiff to some relief, although not to all the relief demanded. Bayless v. Glenn, 72 Ind. 5. But the rule stated does not by any means warrant the conclusion that a plaintiff may present one case and recover on another, as, for instance, frame a complaint in ejectment, and upon it obtain an injunction. Mescall v. Tully, 91 Ind. 96;Telegraph Co. v. Young, 93 Ind. 118;Bank v. Root, 107 Ind. 224, 8 N. E. Rep. 105. But waiving this point, and construing the complaint as appellants assert it should be...
To continue reading
Request your trial