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

Citation154 Ind. 218, 56 N.E. 210
Case DateFebruary 16, 1900
CourtSupreme Court of Indiana

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

[56 N.E. 211]

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...

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21 practice notes
  • Mich. Cent. R. Co. v. Garfield Petroleum Corp., Nos. 68
    • United States
    • Supreme Court of Michigan
    • March 15, 1940
    ...& Metamora Hydraulic Co. v. Butler, 91 Ind. 134 [46 Am.Rep. 580];Peoria & Eastern Railway Co. v. Attica, Covington & Southern Railway Co., 154 Ind. 218, 56 N.E. 210;Indianapolis Water Company v. Kingan & Co., 155 Ind. 476, 58 N.E. 715. Ordinarily, at least, there is no user by a railroad co......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...this would appear to be the common-law distinction. Domestic, etc., Co. v. De Armey, 100 N. E. 675;Peoria, etc., Co. v. Attica, etc., Co., 154 Ind. 218, 56 N. E. 210;Robinson v. Powers (1891) 129 Ind. 480, 28 N. E. 1112;Colchen v. Ninde et al. (1889) 120 Ind. 88, 22 N. E. 94. There are case......
  • Neitzel v. Spokane Intern. Ry. Co.
    • United States
    • United States State Supreme Court of Washington
    • September 14, 1911
    ...Ind. 540 [16 N.E. 588]; Collett v. Board, etc., 119 Ind. 27 [21 N.E. 329] 4 L. R. A. 321; Peoria, etc., R. Co. v. Attica, etc., R. Co., 154 Ind. 218 [56 N.E. 210]. In all these cases, except the last two, the court has expressed its reluctance in following the Burkhart decision, and has dec......
  • Town of Cicero v. Lake Erie & W.R. Co., No. 7,494.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1912
    ...cures all other defects, and the complaint will be held sufficient to support the judgment. Peoria & E. Ry. Co. v. A. C. & S. Ry. Co., 154 Ind. 218-220, 56 N. E. 210;Du Souchet v. Dutcher, 113 Ind. 249-251, 15 N. E. 459;Noblesville F. & M. Co. v. Yeaman, 3 Ind. App. 521-524, 30 N. E. 10;Hey......
  • Request a trial to view additional results
21 cases
  • Mich. Cent. R. Co. v. Garfield Petroleum Corp., Nos. 68
    • United States
    • Supreme Court of Michigan
    • March 15, 1940
    ...& Metamora Hydraulic Co. v. Butler, 91 Ind. 134 [46 Am.Rep. 580];Peoria & Eastern Railway Co. v. Attica, Covington & Southern Railway Co., 154 Ind. 218, 56 N.E. 210;Indianapolis Water Company v. Kingan & Co., 155 Ind. 476, 58 N.E. 715. Ordinarily, at least, there is no user by a railroad co......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...this would appear to be the common-law distinction. Domestic, etc., Co. v. De Armey, 100 N. E. 675;Peoria, etc., Co. v. Attica, etc., Co., 154 Ind. 218, 56 N. E. 210;Robinson v. Powers (1891) 129 Ind. 480, 28 N. E. 1112;Colchen v. Ninde et al. (1889) 120 Ind. 88, 22 N. E. 94. There are case......
  • Neitzel v. Spokane Intern. Ry. Co.
    • United States
    • United States State Supreme Court of Washington
    • September 14, 1911
    ...Ind. 540 [16 N.E. 588]; Collett v. Board, etc., 119 Ind. 27 [21 N.E. 329] 4 L. R. A. 321; Peoria, etc., R. Co. v. Attica, etc., R. Co., 154 Ind. 218 [56 N.E. 210]. In all these cases, except the last two, the court has expressed its reluctance in following the Burkhart decision, and has dec......
  • Town of Cicero v. Lake Erie & W.R. Co., No. 7,494.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1912
    ...cures all other defects, and the complaint will be held sufficient to support the judgment. Peoria & E. Ry. Co. v. A. C. & S. Ry. Co., 154 Ind. 218-220, 56 N. E. 210;Du Souchet v. Dutcher, 113 Ind. 249-251, 15 N. E. 459;Noblesville F. & M. Co. v. Yeaman, 3 Ind. App. 521-524, 30 N. E. 10;Hey......
  • Request a trial to view additional results

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