Pittsburgh, C., C. & St. L. Ry. Co. v. Noftsker
| Decision Date | 07 May 1901 |
| Citation | 26 Ind.App. 614,60 N.E. 372 |
| Parties | PITTSBURGH, C., C. & ST. L. RY. CO. v. NOFTSKER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Madison county; John T. McClure, Judge.
Action by Eliza J. Noftsker against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Goodykoontz & Ballard, Greenlee & Call, McMahon & Van Arsdal, and John L. Rupe, for appellant. Perry Behymer, for appellee.
Appellee sues to recover damages for the construction of a switch track by appellant over a strip of ground adjoining appellee's premises, and which it is claimed is a public highway. Complaint in two paragraphs, which are substantially the same. Upon the issues formed, a trial by jury resulted in a verdict for appellee. The sufficiency of the complaint and denial of a new trial are questioned.
Upon the former appeal (Railway Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332) the judgment was reversed, and a new trial ordered, with leave to file an amended complaint. Upon that appeal, however, the complaint, which was in one paragraph, was held good against demurrer. An additional paragraph of complaint was filed when the case was certified back, and it seems that the complaint was amended so as to include the west lot, and also a correct description of the 25-acre tract, as noticed in the opinion on the former appeal. But these amendments did not materially change the character of the pleading, and the ruling on the former appeal that the complaint was sufficient remains the law of the case. City of Logansport v. Humphrey, 105 Ind. 146, 6 N. E. 337; Railroad Co. v. Reed, 83 Ind. 9. The complaint avers that the heirs of Job Warner, deceased, owned 25.37 acres of land outside the corporate limits of Elwood, and in the northeast corner of section 9. On the north side of this land was a highway 30 feet wide, and on the east side was a highway 40 feet wide. The highway on the north was an extension of North N street, which was 60 feet wide, and the highway extending east from the eastern terminus of North N street was originally 30 feet wide. The highway on the east was a continuation of Anderson street, which was 66 feet wide at the north line of the city, but the highway running north from the corporation line, and past this land, was 40 feet wide. Warner's heirs conveyed to appellee a part of this tract described as follows: “Beginning at a point thirty feet south and thirty feet west of the northeast corner of section nine, township twenty-one north, of range six east, running thence south one hundred twenty feet, thence west one hundred forty-seven feet, thence north one hundred twenty feet, thence east one hundred forty-seven feet to the place of beginning; also beginning at a point thirty feet south and one hundred ninety-six feet west of the northeast corner of section nine of said township and range, running thence south one hundred twenty feet, thence west one hundred forty-seven feet, thence north one hundred twenty feet, thence east one hundred forty-seven feet, to the place of beginning.” This conveyance left a strip of land 15 feet wide between the north line of the land conveyed to appellee and the highway, and a strip 13 feet wide on the east. Afterwards appellant constructed a switch track running east and west on a strip 15 feet wide. It is averred that these strips of land were to be and were dedicated to the public by the owner of the land for the purpose of widening the public highways to the width of the streets, and that such parcels of land sold to appellee and other persons were sold with reference to the highways as widened by the addition of these strips. Other facts are averred showing that the strip 15 feet wide was dedicated by the owner to the public use, and became a part of the highway, before the switch was built. The court instructed the jury that: “If in this cause you find for the plaintiff, the measure of her damage is the sum which you may find that her real estate was depreciated in value by reason of the means of access thereto being impaired or interfered with by...
To continue reading
Request your trial