New York Cent. R. Co. v. Yarian
| Decision Date | 19 February 1942 |
| Docket Number | 27650. |
| Citation | 39 N.E.2d 604,219 Ind. 477 |
| Parties | NEW YORK CENT. R. CO. v. YARIAN. |
| Court | Indiana Supreme Court |
Townsend & Thomas, of Fort Wayne, and W. D. Stump, of Auburn (S C. Murray, of Chicago, Ill., of counsel), for appellant.
Mountz & Mountz, of Garrett, and C. E. McClintock, of Auburn for appellee.
The appellee's remote grantor conveyed to the appellant's remote grantor a strip of ground through his farm land in fee simple, which was intended to be, and since has been, used as the right of way of a railroad. The original conveyance contained this provision: 'Said company to permit & maintain two farm crossings * * *.' The land granted to the railroad company divided the grantors' land, and then separated, and now separates, that part of the land upon which the buildings are located from the only accessible public highway. The land was then used, and is now used, for farming, and part of the buildings as a home and residence.
The adjacent City of Auburn maintains an electric utility, and at the request of the appellee it brought a line carrying electrical current of 220 volts or less up to the railroad's right of way opposite appellee's house. The appellee caused an iron pipe to be placed under appellant's tracks, about one inch below the lower edge of the ties, and brought cables leading from the utility poles through the railroad right of way, burying the cables under six
or eight inches of dirt, to the ends of the pipe and passing the cables through the pipe under the railroad tracks.
The appellant brought this action seeking to have the condition created by appellee declared a dangerous nuisance, and for a judgment requiring appellee to remove the structure from the right of way. There was judgment for the defendant appellee and the appellant appeals, assigning as error the overruling of a motion for a new trial.
It appears from the evidence that before installing the cables the appellee discussed the matter with representatives of the appellant; that appellant was willing to permit the installation in consideration of a nominal fee and an agreement to remove it upon thirty days' notice. It seems also to have been suggested that the manner of installation was dangerous; that it was not sufficiently buried in the ground to avoid injury to the conduit and the dangerous escape of electricity. The appellee indicated a willingness to make changes in the installation if it was not according to proper engineering standards. The electric line was intended solely for farm and domestic use upon the appellee's property. It appears that the farm crossing is at an angle, and that the wires are brought straight across so that they do not lie within the boundaries of the strip used for the crossing, but the variance is insubstantial and is not stressed by the appellant.
The appellant contends that the easement for a farm crossing reserved by appellee's remote grantor is not sufficiently broad to permit the installation of the conduit carrying electricity for farm and domestic purposes, and cites as supporting its contention United States Pipe Line Co. et al. v. Delaware, L. & W. R. Co., 1898, 62 N.J.L. 254, 41 A. 759, 42 L.R.A. 572, and Midland Valley R. Co. v. Sam Jarvis et al., 1928, 8 Cir., 29 F.2d 539, 61 A.L.R. 1064. The first case involves the use of a reserved farm crossing for the installation of a commercial pipe line for carrying oil. The pipe line was not limited to the uses of the land served by the private crossing. The other case involves the right to drill oil wells on a railroad right of way, and we do not find it helpful.
When the appellee's remote grantor conveyed the land dividing his farm land and cutting part of it off from the only available highway, the law would have given a way of necessity for ingress and egress in the absence of a statute or reservation in the conveyance. Cleveland, C. C. & St. L. R. Co. v. Smith, 1912, 177 Ind. 524, 97 N.E. 164.
The conveyance was made in 1871. The reservation was for a 'farm crossing,' and it must be concluded that it was intended to afford a means of access to the divided portions of the farm and to the adjacent and only available highway. It is true that at the time the deed was made the crossing was only used as a pedestrian crossing or for animals or animal-drawn vehicles, but there is no express limitation of the use to such traffic. It is sometimes said that reservations of easements are strictly limited to the purposes in the minds of the parties, but we believe a proper application of the rule puts the limitation not upon the character of traffic upon a reserved way, but upon the purpose to be served by the traffic. Without the reservation, public policy would have implied an intention that the dominant estate should have a way of passage over the servient estate because such a way is necessary to the full and fair enjoyment of the dominant estate, and it is against public policy that estates be cut off from use and profitable enjoyment. See State ex rel McNutt et al. v. Orcutt...
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