Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Harper
| Decision Date | 06 April 1894 |
| Docket Number | 1,044 |
| Citation | 37 N.E. 41,11 Ind.App. 481 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HARPER |
| Court | Indiana Appellate Court |
Petition for rehearing overruled Nov. 27, 1894.
From the Grant Circuit Court.
Judgment affirmed.
N. O Ross, W. H. Carroll and G. Dean, for appellant.
J. W Fesler, E. E. Stevenson and J. A. Kersey, for appellee.
REINHARD, J. GAVIN, J., dissents. ROSS, J., did not participate in this opinion.
The appellee brought this action to recover damages of the appellant for an alleged trespass upon and wrongful appropriation of her land for the purpose of constructing and maintaining a second railroad track upon the portion thereof lying adjacent to the appellant's right of way upon which the first and main track is laid.
The complaint is in two paragraphs, and a general demurrer addressed separately to each paragraph was overruled. This ruling is assigned and relied upon as error. The specific objection urged against the first paragraph is its failure to allege the appellee's ownership of the property described.
The averment upon the question of ownership is not as clear and specific as could be desired in a model pleading, but we think the several averments when construed together are sufficient to withstand the objection mentioned.
It is alleged that the appellant entered upon the land but a very few days before the action was commenced. In the allegation of ownership it is true the present tense is used, which must probably be construed to refer to the time of the commencement of the action, but it is further shown in the complaint, that the appellee claimed title and notified appellant thereof, and that she would claim damages the day before the alleged entry. It is also charged that the appellant entered unlawfully and without right, and that the trespass was a continuing one amounting to an appropriation of a right of way in perpetuity. The objection is highly technical in its character, and we do not think it is tenable.
Another objection urged is that the appellee does not aver ownership in the particular portion upon which the track was laid. This objection is equally untenable. After setting forth a specific description of her real estate, she avers that on the said described piece or tract there were three dwelling houses, occupied by her tenants, each of which houses "fronted on an open way twenty feet in width, which then was and had been left open, extending along the south side of said real estate and adjacent to said railroad right of way for the entire distance along said real estate, and being a part of said real estate," etc.
This, we think, sufficiently shows that the strip upon which it is alleged the second track was constructed, was a part of the real estate described, and of which it is averred she is the owner. If the appellant desired a more specific description of the strip alleged to have been appropriated, it should have interposed a motion to require the appellee to make her complaint more definite in this regard.
But if we should conclude that the strip taken was not described with sufficient certainty, this would not render the complaint bad for the reason that it still shows some injury to the remainder of the land upon which the dwelling houses are situated, under the rule that the owner of property is required to use it so as not to injure the property of his neighbor.
The special verdict being clearly based upon the first paragraph of the complaint, we would not ordinarily be required to consider the objections urged against the second. We think, however, that the second paragraph is sufficient also. It is averred therein that the appellee was the owner and in possession of the property described on the 26th day of May, 1892, and that the grievances complained of occurred on the 28th day of May, 1892. This is a sufficient averment of ownership. It will not be presumed that there was a change of ownership and possession between the two days named. On the contrary, ownership and occupancy are presumed to continue until the opposite is made to appear. Wharton Ev., section 1286. Appellant's contention that this paragraph of complaint shows the strip of land taken to be a street in a city, even if tenable, would not necessarily prove the complaint bad for the sufficient reason that the owner of land abutting on a highway or street is not debarred from recovering damages from a railroad company constructing a track thereon by the fact that the municipal authorities have granted the company a right of way over such street or highway. Cox v. Louisville, etc., R. R. Co., 48 Ind. 178.
Besides, the owner of the abutting land may have a peculiar interest in the easement in the street, including the right to have the street kept open and free from any obstruction preventing or interfering with his free ingress or egress, such interest being distinct from that of the general public and inhering in the land of which he is the owner. Decker v. Evansville, etc., R. W. Co., 133 Ind. 493, 33 N.E. 349.
We think both paragraphs of the complaint were sufficient to withstand the demurrer.
The court sustained a d...
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Pittsburgh, C., C. & St. L. Ry. Co. v. Harper
... ... Harper against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for ... ...