Pittsburgh, Cincinnati, Chicago, And St. Louis Railway Company v. Noftsger
| Decision Date | 07 May 1901 |
| Docket Number | 3,746 |
| Citation | 60 N.E. 372,26 Ind.App. 614 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO, AND ST. LOUIS RAILWAY COMPANY v. NOFTSGER |
| Court | Indiana Appellate Court |
From the Madison Circuit Court.
Affirmed.
E. B Goodykoontz, D. M. Ballard, C. M. Greenlee, B. R. Call, E. B McMahan, J. A. Van Osdol and J. L. Rupe, for appellant.
Perry Behyler, 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 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 (Pittsburgh, etc., R. 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 a 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 twenty-five 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, 106 Ind. 146, 6 N.E. 337; Richmond St. R. Co. v. Reed, 83 Ind. 9.
The complaint avers that the heirs of Job Warner, deceased, owned twenty-five and thirty-seven hundredths acres of land outside the corporate limits of Elwood, and in the northeast corner of section nine. On the north side of this land was a highway thirty feet wide and on the east side was a highway forty feet wide; the highway on the north was an extension of North N street, which was sixty feet wide, and the highway extending east from the eastern terminus of North N street was originally thirty feet wide; the highway on the east was a continuation of Anderson street, which was sixty-six feet wide at the north line of the city, but the highway running north from the corporation line and past this land was forty 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-three feet west of the northeast corner of section nine, township twenty-one north of range six east, running thence south 120 feet, thence west 147 feet, thence north 120 feet, thence east 147 feet to the place of beginning; also beginning at a point thirty feet south and 196 feet west of the northeast corner of section nine of said township and range, running thence south 120 feet, thence west 147 feet, thence north 120 feet, thence east 147 feet to the place of beginning." This conveyance left a strip of land fifteen feet wide between the north line of the land conveyed to appellee and the highway, and a strip thirteen feet wide on the east. Afterwards appellant constructed a switch track running east and west on the strip fifteen 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 fifteen 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 the construction and maintenance of said railroad." Upon the former appeal it was said that it was the duty of the jury to assess the damages upon the theory that the switch was constructed upon the public highway, and that appellee was not the owner in fee simple of any part of the highway. See, also, Indiana, etc., R Co. v. Eberle, 110 Ind. 542, 59 Am. Rep. 225, 11 N.E. 467. It is objected to this instruction that the jury are...
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Pittsburgh, C., C. & St. L. Ry. Co. v. Noftsker
... ... Noftsker against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a ... v. Noftsger, 148 Ind. 101, 47 N. E. 332) the judgment was ... ...