Morgan v. The Lake Shore And Michigan Southern Railway Co.

• Decision Date: 06 October 1891
• Docket Number: 15,099
• Citation: 28 N.E. 548,130 Ind. 101
• Parties: Morgan et al. v. The Lake Shore and Michigan Southern Railway Company
• Court: Indiana Supreme Court

28 N.E. 548

130 Ind. 101

Morgan et al. v. The Lake Shore and Michigan Southern Railway Company

No. 15,099

Supreme Court of Indiana

October 6, 1891

Petition for a Rehearing Overruled Dec. 18, 1891.

From the Lake Circuit Court.

Judgment affirmed.

E Roby, T. J. Wood and M. Wood, for appellants.

J. H Baker, for appellee.

OPINION

Elliott, C. J.

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 and Mississippi Railroad Company was incorporated by an act of the General Assembly of Indiana, approved February 6th, 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 eighty 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 the 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 sixteen 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 plaintiffs, 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 twenty 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 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; Western Union Tel. Co. v. Young, 93 Ind. 118; First National Bank v. Root, 107 Ind. 224, 8 N.E. 105.

But waiving this point and construing the complaint as appellants assert it should be construed, we will decide the main questions in the case.

Two prefatory observations are necessary:

First. The complaint pleads the title of the plaintiffs specifically, and the general averments must yield to the specific allegations, so that if the specific allegations do not show title he will fail. Reynolds...