Pittsburgh, C., C. & St. L. Ry. Co. v. Kearns, No. 8922.

• Docket Nº: No. 8922.
• Citation: 108 N.E. 873, 58 Ind.App. 694
• Case Date: May 12, 1915
• Court: Court of Appeals of Indiana

58 Ind.App. 694
108 N.E. 873

PITTSBURGH, C., C. & ST. L. RY. CO.
v.
KEARNS et al.

No. 8922.

Appellate Court of Indiana, Division No. 2.

May 12, 1915.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Joseph Kearns and others against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial.

[108 N.E. 874]

G. E. Ross, of Logansport, for appellant. S. L. Stricler, of Marion, Murphy & Todd, of Wabash, and W. F. Elliott, of Indianapolis, for appellees.

IBACH, J.

In both paragraphs of the complaint in this case appellee sued appellant for damages for the destruction of a private farm crossing which had been constructed by one of appellant's predecessors for former owners and occupants of the farm which had been severed by such railroad. Such crossing had been maintained by appellant and its predecessors from the time of its construction until November 20, 1909. Appellees base their right to a recovery on a covenant in a deed of conveyance of the right of way, made by one of their remote grantors to appellant's predecessors, that it “would make and maintain a farm crossing,” etc. The complaint avers, in substance, that up to November 20, 1909, defendant and its predecessors performed such covenant, but on said day defendant destroyed the crossing and has never since replaced it or built another. Defendant's tracks and roadbed so divide plaintiffs' land as to leave the larger tillable portion of the farm on one side thereof, and the house and improvements on the other, so that plaintiffs now have no means of access from one part of the farm to the other. The second paragraph in all essential respects is similar to the first, with these additions: That without a suitable crossing plaintiffs are unable to cultivate the portion of their farm on the east side of the tracks, and to build a suitable crossing would cost $5,000, and with such a crossing their lands would be worth $150 per acre, and without it but $50 per acre. The demand in each paragraph is for $6,000. Separate demurrers to each paragraph of the complaint were overruled, and this is the first specification in appellant's assignment of error. The answers were a general denial and an affirmative answer predicated on former adjudication, in which it is alleged substantially that in June, 1909, the appellant brought suit against appellees in the Grant circuit court to appropriate a 20-foot strip of land through their farm for right of way purposes parallel with their previous right of way; that appraisers were appointed to assess damages, the award was made, and exceptions to the award taken, among which exceptions it is stated that the amount assessed by the appraisers as the damages that will be sustained by the defendants by such taking of such real estate is wholly inadequate and insufficient; and that the amount assessed as the damages to the balance of their real estate, of which said strip sought to be appropriated is a part, is wholly inadequate. The judgment in that case was pleaded, showing a recovery by appellees on the trial of the exceptions to the award made by the viewers and the payment of that amount to appellees. The action of the trial court in sustaining the demurrer to this special answer is the second error assigned. Upon the issues thus formed, the cause was submitted to a jury for trial, which resulted in a general verdict for appellees for $4,000, and, over appellant's motion for a new trial, judgment was rendered on the verdict.

[1] We believe that the averments of the complaint, when construed together, are sufficient to show appellees' right to a private crossing through their lands; that such a crossing which had been built and maintained by appellant and its predecessors had by appellant been destroyed; that, on account thereof, the means of passing from one part of their farm to another had been taken from them; that they were thereby unable to cultivate that portion of their farm to the west of appellant's right of way, and on account of all such acts on appellant's part they had been heavily damaged. While it may be said that all these facts are not so clearly disclosed in the pleading as they might have been, and the pleading may be subject to some criticism on that account,

[108 N.E. 875]

when strict rules...