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

• Court: Indiana Supreme Court
• Writing for the Court: MONKS
• Citation: Pittsburg, C., C. & St. L. Ry. Co. v. Noftsger, 148 Ind. 101, 47 N.E. 332 (Ind. 1897)
• Decision Date: 25 May 1897
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. NOFTSGER.

148 Ind. 101

47 N.E. 332

PITTSBURG, C., C. & ST. L. RY. CO.

v.NOFTSGER.¹

Supreme Court of Indiana.

May 25, 1897.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Action by Eliza J. Noftsger against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John L. Rupe, Geo. M. Ballard, C. M. Greenlee, and J. A. Van Osdal, for appellant. Perkins, Beyhmer & Jones, for appellee.

MONKS, J.

Appellee brought this action to recover damages for the construction of a switch by appellant from its main track over a strip of ground adjoining appellee's premises, upon the theory that same was a public highway. Appellant's demurrer to the complaint for want of facts was overruled. The cause was tried by a jury, and a special verdictreturned, upon which, over appellant's motion for a judgment in its favor, and a motion for a new trial, judgment was rendered in favor of appellee. The errors assigned, and not waived, call in question the action of the court in overruling the demurrer to the complaint, the motion for a judgment upon the verdict in favor of appellant, and the motion for a new trial, and in sustaining appellee's motion for a judgment in her favor.

It appears from the complaint that the heirs of Job W. Warner, deceased, owned 25 acres of land outside of the corporate limits of Elwood, Ind., in the northeast corner of section 9. There was a highway on the north line of said section, 30 feet wide, one-half of which was located on said real estate, and a highway on the east line of said section, one-half of which was located on said real estate. Said heirs sold and conveyed to appellee a part of said 25 acres, which was described as follows: “Beginning at a point 30 feet south and 33 feet west of the northeast corner of section 9, township 21 north, of range 6 east; running thence south 120 feet; thence west 147 feet; thence north 120 feet; and thence east 147 feet, to the place of beginning.” Such description left a strip 15 feet wide between the real estate conveyed to appellee and the highway on the north, and a strip 13 feet wide between the real estate conveyed to appellee and the highway on the east. Afterwards appellant built a switch running east and west upon said strip 15 feet wide, adjoining appellee's real estate on the north. The allegations in the complaint are sufficient to show that the parcel of real estate 15 feet wide, bounded by the south side of the highway on the north and appellee's real estate on the south, was dedicated by the owners thereof to the public use, and it became a part of the public highway before said switch was built by appellant. If said parcel of real estate was so dedicated to the public use, the south boundary of said highway so widened became the north boundary of appellee's real estate, and she was entitled to use the same as a means of ingress and egress to her premises upon which she resided. Appellee, under such circumstances, would not be the owner in fee simple of any part of such highway, or of any real estate either north of her north line or east of her east line. Appellee cannot, therefore, maintain an action for the obstruction of said highway, unless she has sustained some special injury,-one not common to all who use the highway. Railway Co. v. Eberle, 110 Ind. 547, 552, 11 N. E. 467;Ross v. Thompson, 78 Ind. 90;Dwenger v. Railway Co., 98 Ind. 153, 156, and cases cited; Gas Co. v. Tyner, 131 Ind. 277, 283, 31 N. E. 59, and cases cited; Haslett v. Railroad Co., 7 Ind. App. 603, 34 N. E. 845. The allegations in the complaint show, however, that appellant's switch, as constructed east and west along said alleged public highway, although not upon appellee's real estate, materially interrupted appellee's means of access to her property. This is a special injury, different in kind from that suffered by the public generally, and entitles appellee to maintain an action for damages. Railway Co. v. Eberle, supra; Railroad Co. v. Heisel, 38 Mich. 62. We think, therefore, that the court did not err in overruling the demurrer to the complaint. As to what allegations are necessary to show that the owner of real estate abutting on a highway owns the fee simple to the middle of such highway, see Erwin v. Telephone Co. (this term) 46 N. E. 667.

One of the questions to be determined under the allegations in the complaint was whether the real estate upon which appellant had constructed its switch was in the public highway. Appellant's contention was that the ground upon which the switch was laid was no part of the public highway; that the heirs of Job W. Warner, the owners of said 25-acre tract, after the conveyance to appellee sold and conveyed to appellant said strip 15 feet wide north and south, and extending the entire length of said 25-acre tract east and west,-the north boundary being the south line of the highway running east and west on the north line of said section 9, and the south boundary being the north line of the real estate conveyed to appellee,-and that the switch was constructed on said strip conveyed to and owned by appellant. Appellee's contention was that before the conveyance to appellant said real estate had been dedicated to the public use by the Warner heirs, the owners thereof, and that the same was, when conveyed to appellant, a part of the highway. During the progress of the trial, appellee, as tending to show said dedication, proved by several witnesses that after the conveyance to appellee the Warner heirs removed the fence on the line between the highway and the real estate afterwards conveyed to appellant, thus leaving said real estate uninclosed. Appellant at the proper time offered to prove by a competent witness that said fence was removed, and said real estate left uninclosed, without any intention to make the same a part of the public highway, or in any way to dedicate the same to the public use. The court excluded the evidence offered, and this is assigned as one of the causes for a new trial. It is contended by appellee that evidence of acts only was admissible, and that, intention being only an operation of the mind, it was not competent for the witness to state the intent with which the act was done. It is the law in this state, however, that, when the character of an act depends upon the intent with which it was done, the party may testify as to such intention. Bidinger v. Bishop, 76 Ind. 244, 255, and authorities cited; Sedgwick v. Tucker, 90 Ind. 271, 281;Heap v. Parrish, 104 Ind. 36, 40, 3 N. E. 549, and cases cited. Appellees having given evidence of the removal of said fence, as tending to show a dedication, it was error for the court to exclude evidence of the intention with which such act was done. This is not in conflict with the case of City of Columbus v. Dahn, 36 Ind. 330, cited by appellee. In that case a witness was allowed by the trial court to testify that he never intended to dedicate certain real estate as a street. This was properly held error. The witness in that case was not asked the intention with which he had done any particular act which had been proven as tending to show a dedication, as in this case, but as to this intention generally, not connected with any act. Under the authorities, a party may testify as to the intention with which he did any act, when such intention is...