Peoria & E. Ry. Co. v. Attica, C.&S. Ry. Co.

• Decision Date: 16 February 1900
• Court: Indiana Supreme Court
• Parties: PEORIA & E. RY. CO. et al. v. ATTICA, C. & S. RY. CO.

154 Ind. 218

56 N.E. 210

PEORIA & E. RY. CO. et al.

v.ATTICA, C. & S. RY. CO.

Supreme Court of Indiana.

Feb. 16, 1900.

Appeal from circuit court, Fountain county; Joseph M. Rabb, Judge.

Action by the Attica, Covington & Southern Railway Company against the Peoria & Eastern Railway Company and others, to enjoin defendants from seizing and appropriating certain real estate of the plaintiff. From a judgment for plaintiff, defendants appeal. Affirmed as to defendants the Peoria & Eastern Railway Company, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and J. A. Barnard, and reversed as to defendants the Ohio, Indiana & Western Railway Company and E. A. Peck.

John T. Dye and Elliott, Elliott & Littleton, for appellants. Stuart Bros. & Hammond and Charles M. McCabe, for appellee.

BAKER, J.

Suit by appellee for injunction. Complaint in one paragraph. Answer, general denial. Special finding of facts and conclusions of law. Judgment, perpetual injunction against defendants. Joint and several motions for new trial overruled. Separate errors assigned: The complaint does not state facts sufficient to constitute a cause of action; each conclusion of law is wrong; and the motions for new trial were erroneously overruled. The defendants were the Peoria & Eastern Railway Company; the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, the Indianapolis, Bloomington & Western Railroad Company, the Ohio, Indiana & Western Railway Company, E. A. Peck, and J. A. Barnard. The first two companies and Barnard perfected a termtime appeal, and filed separate assignments. The Indianapolis, Bloomington & Western Railroad Company has not appealed. The Ohio, Indiana & Western Railway Company and Peck severally assigned errors under the act of 1895 (Acts 1895, p. 179; section 647a, Burns' Rev. St. 1894; section 638a, Horner's Rev. St. 1897). As there was no evidence against these last two defendants, they may at once be dismissed from consideration. The complaint was filed in February, 1892. It charges, in substance, that the Peoria & Eastern is the owner, and the Cleveland, Cincinnati, Chicago & St. Louis is lessee, of a line of railroad through Covington, in Fountain county, of which Barnard is superintendent; that defendants built their line some time prior to September, 1872; that in doing so they carried their line over the Wabash & Erie Canal, where the canal was located on, and adjacent to, part of outlot 1 of the town, by means of a trestle or bridge about 16 feet above the towpath of the canal; that the canal ceased to be operated about September, 1872; that the bridge ever since has been maintained practically as first built; that it rests partly on, and in places supported by piles driven in, what was canal property; that in 1880 plaintiff purchased from the owners of the property of the Wabash & Erie Canal all of the canal property in Fountain county, including the part where the canal was crossed by defendants' bridge, and afterwards constructed its railroad on the towpath under the bridge that constituted the roadbed of defendants, from the north to a point 50 feet south of the bridge; that for 12 years last past plaintiff has been in actual ownership, control, and occupancy of its road on the towpath under the bridge; that in 1882 plaintiff notified defendants in writing that it had purchased and was the exclusive owner of the canal property, including the part under the bridge, and would build and operate its road thereon; that defendants never controverted this claim, nor attempted to interfere with plaintiff's possession, until the doing of the acts complained of; that plaintiff built its track under the bridge, with the knowledge and acquiescence of defendants; that, although defendants have used, repaired, and controlled the structure as located in the air, none of them has any claim of ownership to the land or space under the bridge, or on either side thereof, but the ownership and occupancy have been continuously in plaintiff and its predecessors in title, and on the faith thereof plaintiff has expended large sums of money; that defendants, forcibly and without right, are threatening and attempting to seize and appropriate permanently to their use plaintiff's property under the bridge, and to fill up the entire space with piling, ground, and stone, and will continue, etc., unless restrained, etc.

There was no demurrer to the complaint. It will therefore be held sufficient, if it states facts enough to bar another action. Real-Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147. The complaint comes here aided by the curative virtues of the finding and judgment. If a complaint is tested by demurrer, all inferences and intendments are taken against the pleader. If a complaint is first challenged after judgment, all inferences and intendments are taken in favor of the pleader, and there must be a total failure to state some essential element of right of recovery to render the complaint insufficient. If each essential element is stated, even if so deficiently as to make the complaint obnoxious to demurrer, the defects are cured by the verdict or finding.

The first objection urged against the complaint is that it fails to state the extent of appellee's estate in the land,-whether in fee or an easement or a license. The allegation that “plaintiff is the owner,” without stating the kind of title, has been held sufficient against demurrer. Burt v. Bowles, 69 Ind. 1;Steeple v. Downing, 60 Ind. 478. Appellee alleged that in 1880 it purchased the canal property from the then owner, and has ever since owned and occupied the land in question. Appellee's title and that of its predecessors is stated generally as an “ownership.” This is not a total omission of an essential allegation, but is, at most, an indefinite and uncertain averment, that will be deemed cured after judgment, if it needed such aid.

It is next said that the complaint affirmatively shows that appellants have a title to the land and space in controversy superior to appellee's. It is true that the complaint discloses that appellants, since a time prior to the abandonment of the operation of the canal, have maintained a bridge over the property; but the controversy related solely to the right to use the ground and 16 feet of space under the bridge. Appellee in no way seeks to curtail the right of appellants to maintain their structure as originally erected. That right was not in issue. To concede that right, in view of the averments that appellee is owner, and that appellants, forcibly and without right, are attempting permanently to occupy appellee's property, was no admission of any right in appellants to the ground and space in question. Appellants claim that a railroad company, because it is chartered to build, maintain, and operate a railroad, has the right to change the character of its roadbed at will, wherever it has established a foot in possession, to the extent of holding the utmost it could acquire in any case; and cite Railroad Co. v. Rayl, 69 Ind. 424;Prather v. Telegraph Co., 89 Ind. 501; and Campbell v. Railroad Co., 110 Ind. 490, 11 N. E. 482. If the cases support the contention, they are in conflict with the later decisions. Railroad Co. v. Sherry, 126 Ind. 334, 25 N. E. 898, 10 L. R. A. 48,...