Muncie Electric Light Company v. Joliff
| Decision Date | 23 June 1915 |
| Docket Number | 8,953 |
| Citation | 109 N.E. 433,59 Ind.App. 349 |
| Parties | MUNCIE ELECTRIC LIGHT COMPANY v. JOLIFF |
| Court | Indiana Appellate Court |
From Delaware Superior Court; James J. Moran, Special Judge.
Action by the Muncie Electric Light Company against Joseph C Joliff. From a judgment for defendant, the plaintiff appeals.
Affirmed.
William F. White and William T. Haymond, for appellant.
Wilbur Ryman and Leffner, Bell & Needham, for appellee.
OPINION
The nature and history of the occurrences which led up to the litigation in which this appeal was taken, and the character of the pleadings tendering the issues on which the case was tried below, briefly stated, are as follows: The appellant is a public service corporation engaged in the business of generating, transmitting and selling electric energy for light, heat and power purposes. It has its principal office and place of business at Muncie, Indiana, and it there generates electricity used by it and its customers. It also has substations for the generation and distribution of such current at the towns of Eaton, Red Key, Dunkirk and Hartford City, Indiana. In the month of September, 1911, and prior thereto appellant was engaged in constructing a transmission line on a private way from its plant in Muncie to its plants in Eaton and Hartford City, and then to Dunkirk and Red Key. This private way over which it was constructing such line was located immediately west of, and adjacent to, the right of way of the Fort Wayne, Cincinnati and Louisville Railroad Company, known as the Lake Erie and Western Railroad. Prior to September, 1911, appellant had procured a private right of way for such line between Muncie and Hartford City from all the owners of the land over which it passed except from appellee, and three others. Having failed in its negotiations with appellee to secure a right of way over his farm, appellant filed condemnation proceedings for that purpose. Pending such proceedings appellant pursuant to permission obtained from said railroad companies constructed its transmission line on their right of way through appellee's land. Later appellant turned its current into such transmission line and proceeded to construct a private telephone line on its poles for the use of its workmen. Appellee objected to such construction and cut the line at a point thereon where his farm crossing passes over the railroad right of way. Appellant then filed its sworn complaint in this cause and procured a temporary restraining order, restraining the appellee from further interfering with such line. Thereafter a motion by appellee to dissolve the restraining order was overruled and a temporary injunction was granted appellant until the final hearing of the case. A second paragraph of complaint was then filed. A demurrer to each paragraph of complaint was overruled, and answer in general denial and an affirmative answer filed. A demurrer to each of the affirmative answers was overruled. A reply in general denial closed the issues. There was a trial by court and a special finding of facts and conclusions of law in appellee's favor. A motion for new trial was overruled and judgment rendered for appellee on the finding.
The errors assigned are, (1) overruling appellant's motion for a new trial; (2) overruling appellant's demurrer to each paragraph of appellee's answer to the first and second paragraphs of complaint; (3-5) the court erred in its conclusions of law, one, two and three, respectively. The second assigned error is not presented by appellant's brief and is therefore waived. We might add that no memorandum accompanies either demurrer and for this reason no question could be presented on such rulings. Acts 1911 p. 415, § 344 Burns 1914.
The length of the finding forbids its incorporation in this opinion, except in so far as necessary to an understanding of the questions presented by the appeal, and the disposition made thereof. The substance of the particular findings objected to by appellant is as follows: (1-3) On, before, and after September 4, 1911, Joseph C. Joliff and Lulu B. Joliff, his wife, hereinafter referred to as the "Joliffs", were the owners in fee simple of the following described real estate (here follows description), subject only to an easement, or railroad right of way owned by the Fort Wayne, Cincinnati and Louisville Railroad Company, and operated by the Lake Erie and Western Railroad Company. Neither of said companies has or holds any right or interest in said right of way other than a right of way or easement for railroad purposes, and such right of way is located on and across the real estate of the Joliffs, above described. (19) At the time appellant entered upon said right of way on the land in question on September 3, it was, and continuously since that time has been, a "trespasser upon the fee simple interest in and to the said lands where said poles were so placed and said wires so strung thereon as held and owned by" the Joliffs. (24) On Sunday morning, September 1, 1911, the Joliffs knew that appellant entered, or was about to enter, upon that part of their land occupied by the railroad companies for right of way purposes, and before the Joliffs informed appellant that they were the owners of the right of way appellant made several holes and had placed in them poles upon which was intended to be strung the wires for the transmission of electricity. However, before there was but a very small amount of labor performed and but very little money expended, the Joliffs ordered the servants of appellant who were in charge of the construction work to desist their labor and informed appellant that they were the owners of the fee in the right of way, but such servants of appellant refused to quit such work or to leave the premises.
The conclusions of law are as follows:
In support of its contention that the trial court erred in overruling its motion for new trial it is first insisted by appellant that findings 1, 2 and 3 are not supported by the evidence. It is asserted that there is no evidence, either that the railroad company did not own a fee in its right of way over the land in question, or that appellee did own the fee therein. We can not agree with this contention. In determining such question this court will look only to that evidence most favorable to appellee, and if it supports such findings, or is such as to have warranted the trial court in inferring the existence of the fact so found by it, this court will be bound by such findings. Lake Erie, etc., R. Co. v. Voliva (1913), 53 Ind.App. 170, 177, 101 N.E. 338; Schaffner v. Voss (1910), 46 Ind.App. 551, 557, 93 N.E. 235. We think there was affirmative evidence which justified the findings indicated. The appellant in its original complaint, which is verified, alleges, in effect, that the railroad company which granted it permission to place its poles and transmission line on the right of way in question owned a right of way over said land. The second paragraph of complaint contains a similar averment. "The grant of a right of way is the grant of an easement and implies that the fee remains in the grantor." Cincinnati, etc., R. Co. v. Geisel (1888), 119 Ind. 77, 21 N.E. 470. See, also, Chicago, etc., R. Co. v. Huncheon (1892), 130 Ind. 529, 30 N.E. 636; Quick v. Taylor (1888), 113 Ind. 540, 16 N.E. 588; Pfaff v. Terre Haute, etc., R. Co. (1886), 108 Ind. 144, 148, 9 N.E. 93; Williams v. Western Union R. Co. (1880), 50 Wis. 71, 76, 5 N.W. 482; Brown v. Young (1886), 69 Iowa 625, 29 N.W. 941; Bosley v. Susquehanna Canal Co. (1830), 3 Bland 63, 67; Uhl v. Ohio River R. Co. (1902), 51 W.Va. 106, 110, 41 S.E. 340, 33 Cyc. 166, 167; 6 Am. and Eng. Ency. Law 530, 531; 7 Words and Phrases 6230
Appellant introduced, in support of the railroad company's title to its right of way, a deed from Samuel Martin to Maxwell M. C Smell, in which there was the following recital: "Not warranting however herein against the right of way of the Fort Wayne, Muncie and Cincinnati Railway Company heretofore acquired by agreement of the grantor, Samuel Martin, dated March 17, 1869." Through various intermediate deeds appellee traces his title to the same source, and hence neither appellant nor appellee will be permitted to question the title of the common grantor to whom they trace their source of title. Pierson v. Doe (1850), 2 Ind. *123, *125; Wright v. Tichenor (1885), 104 Ind. 185, 187, 3 N.E. 853, and cases cited; Brandenburg v. Seigfried (1881), 75 Ind. 568, 569; McWhorter v. Heltzell (1890), 124 Ind. 129, 131, 24 N.E. 743. The deed from Martin introduced by appellant, especially when taken in connection with the other deeds introduced in evidence, and the averments of appellant's complaint and all the other evidence in the case is, we think, sufficient to warrant the court's affirmative finding that appellant was the owner of the easement, or a right of way only, over the land in question and that appellee was the owner of the fee in such right of way. The record shows that Charles Fudge, appellee's immediate grantor was in possession of the land in question at the time he deeded it to appellee and wife. This, in connection with the other evidence indicated, was a sufficient showing as far as appellee's title is concerned. Peck v. Louisville, etc., R. Co. (1885), 101 Ind. 366, and c...
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