Pittsburg, C., C. & St. L. Ry. Co. v. Wilson

Citation91 N.E. 725,46 Ind.App. 444
Decision Date27 April 1910
Docket NumberNo. 6,719.,6,719.
CourtCourt of Appeals of Indiana
PartiesPITTSBURG, C., C. & ST. L. RY. CO. v. WILSON et al.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Blackford County; Charles E. Sturgiss, Judge.

Action by James W. Wilson and others against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.G. E. Ross, for appellant. William J. Houck, Waltz & Secrest, and Harness, Moon & Voorhis, for appellees.

MYERS, C. J.

Appellees brought this action against the appellant to recover damages for the destruction of a farm crossing across appellant's right of way and railroad tracks, in violation of a provision in a certain deed through which appellant has a paper title to such right of way. Many of the matters suggested by counsel for appellant at this time were sufficiently discussed in the opinion on the former appeal. That opinion also shows the facts substantially as they appeared in evidence upon the previous trial. Pittsburgh, etc., R. Co. v. Wilson, 34 Ind. App. 324, 72 N. E. 666. On the return of this cause to the court below, the pleadings were reformed by the filing of two amended paragraphs of complaint, and a third paragraph. A demurrer to each of these paragraphs for want of facts was overruled. When the case was here before, as now, each paragraph was based upon a deed of conveyance of the right of way, which contained a covenant on the part of the railroad company, grantee, “to make for the grantors one farm crossing; together with all legal and equitable rights, claims and demands therein and thereto.”

In the first paragraph of the complaint, showing that appellees were the owners of the land on each side of appellant's right of way, and the change of grade of the railroad tracks in 1901, whereby the crossing at grade which existed at that time, and at the time of the conveyance, and for many years thereafter, was by the appellant, without the consent of the appellees, or either of them, wrongfully and without right destroyed by the erection and construction of an embankment over said crossing, it was then alleged that the appellant ever since constructing the embankment had wholly neglected, failed, and refused to construct or maintain or permit any other crossing in lieu thereof, that appellees have been wholly deprived of a crossing, etc. After showing that the embankment at its highest point was more than 20 feet high, and at its lowest point 8 feet high, and was at an average height at that point of 14 feet, it was alleged, from the break on each side, it was almost perpendicular and of such height, and the contour of the land adjoining was of such character, as to render it impossible and impracticable to construct a crossing over and across the appellant's right of way, grade, and embankment, with proper or sufficient approaches thereto so as to permit the appellees or the occupants of the land to use the same as a farm crossing with any degree of safety.

In the second paragraph it was shown: That in 1902 the appellant, as a partial compliance with its contract, constructed a crossing over the tracks of its railroad on the top of the embankment, at a point some rods east of the place where the destroyed crossing was located, and at a point where the embankment and tracks were 10 feet above the surrounding surface, by placing planks suitable for a crossing between the rails and at the sides of its tracks, but that it wholly failed, neglected, and refused to construct the approaches thereto so that it could be used by the appellees as a crossing, and for the use and benefit of said lands and the occupants thereof. Also, that before the appellees could use the same as a farm crossing it would be necessary to build and construct approaches thereto. That by reason of the rolling and sloping condition of the surface of the land at that point it would be necessary to extend the approaches for a long distance out in the appellees' land on either side of appellant's right of way to the great and irreparable damage of the land. That, in order for appellees to construct and complete the same, it will be necessary to expend a large sum of money on their part, to wit, etc. Other damages also were stated.

The third paragraph was substantially like the second, except that it was stated that a practical crossing could be constructed with approaches suitable for a farm crossing at a point about 150 feet east of the place where the appellant attempted to build a crossing, by grading and constructing approaches upon the right of way and extending them out over the lands of the appellees on each side of the right of way, and that, by reason of the high grade and embankments and the condition of the land adjacent, there is no other place where an overgrade crossing can be constructed as easily or as cheaply.

While it is true that the railroad company had the right to raise the grade of its tracks, yet it had received its right of way under a contract to make a farm crossing, “together with all legal and equitable rights, claims and demands therein and thereto.” If it chose to raise its grade, as described in the complaint, and failed to provide an undergrade crossing, and it was impossible to make a practicable overgrade crossing wholly on its right of way, and it was occupying the right of way under a contract requiring it to provide one crossing, it cannot be pretended that the law is so impotent as not to furnish any remedy by way of damages, for such an injury to the farm, as to make it practically impossible to enjoy the use of one-half thereof with safety and reasonable convenience. Therefore the first paragraph of complaint was sufficient.

The second and third paragraphs show that the appellant recognized its obligation to provide a crossing, and constructed one without proper approaches thereto; the second paragraph showing that the crossing so made was impracticable, but that it might be made practicable by extending approaches beyond the right of way, and the third paragraph showing that a passable crossing could not be made at the place so selected by the appellant, but might be made at another designated point by extending the approaches over the land of appellees. The appellant having failed to make an undergrade crossing, and it being practicable to make an overgrade one, and it being bound by its contract to make a crossing at its own expense, and not having done so, it would be liable in damages. The second and third paragraphs each showed a cause of action.

The appellant's motion for a new trial was overruled. Upon the trial the...

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2 cases
  • Friendly v. Ruff
    • United States
    • Oregon Supreme Court
    • 6 Febrero 1912
    ... ... § 799, ... subd. 12. See, also, Stevens v. Sandnes, 108 Minn ... 271, 121 N.W. 902; [61 Or. 48] Pittsburg, etc., Ry. Co ... v. Wilson, 46 Ind.App. 444, 91 N.E. 725; 1 Jones on Real ... Property, § 918; Gilmore v. Norton, 10 Kan. 491, ... ...
  • Pittsburgh, Cincinnati, Chicago And St. Louis Railway Company v. Wilson
    • United States
    • Indiana Appellate Court
    • 27 Abril 1910

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