Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Wilson

• Decision Date: 16 December 1904
• Docket Number: 4,973
• Citation: 72 N.E. 666,34 Ind.App. 324
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. WILSON ET AL

72 N.E. 666

34 Ind.App. 324

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. WILSON ET AL

No. 4,973

Court of Appeals of Indiana

December 16, 1904

From Blackford Circuit Court; Edwin C. Vaughn, Judge.

Action by James W. Wilson and another against the Pittsburgh Cincinnati, Chicago & St. Louis Railway Company for damages for breach of covenant. From a judgment for plaintiffs, defendant appeals.

Reversed.

G. E Ross, for appellant.

William J. Houck, Waltz & Secrest and W. M. Amsden, for appellees.

OPINION

BLACK, J.

In the first specification in the appellant's assignment of errors it is sought to question the action of the court below "in overruling the demurrer to the third paragraph of the amended complaint," and in the second specification the appellant assigns error "in overruling the demurrer to the fourth paragraph of the amended complaint."

1. The court sustained a demurrer to the first and second paragraphs of the complaint. The demurrer which was overruled, omitting the title and the signature, was as follows: "The defendant demurs to the plaintiffs' third and fourth paragraphs of complaint, and, for cause of demurrer, says that said amended paragraphs of complaint do not, nor does either paragraph thereof, state facts sufficient to constitute a cause of action." The demurrer was addressed to the two paragraphs jointly, and an assignment of error purporting to question the action of the court in overruling the demurrer as to one of the paragraphs does not present any matter for decision here.

2. It is also assigned that the court erred in overruling the appellant's motion for a new trial. The appellees, James W. Wilson and Catherine Crumley, sought damages for the destruction of a private crossing from the southern portion of their farm over the appellant's railway to the northern portion of the farm, basing their right to such crossing upon a provision in a deed of conveyance of the railroad's right of way, eighty feet in width, through the lands, to the appellant's grantor, another railroad company; the appellees holding, subject to the right of the railroad company, as tenants in common in equal shares Catherine, one of the grantors in the deed, having her portion as an heir of her father, and James having his portion under a conveyance from another grantor in the deed, holding as heir of the same father. The land in question consisted of 120 acres, over which the railroad ran, dividing the land into portions about equal in size, the buildings being upon the portion south of the railroad, and the equal portion north of the railroad being the most fertile and valuable part of the land. By the deed, executed in 1883, the grantors therein conveyed and warranted the strip of land eighty feet in width to the Chicago, St. Louis & Pittsburgh Railroad Company, its successors and assigns forever. It purported to be made in consideration of $ 1 in hand paid, and it contained the following: "Said company to make and maintain a good wire or other fence on both sides of the strip of land hereby conveyed; if wire, the same to have six wires with a board at top; and also to make for the grantors one farm crossing, together with all legal and equitable rights, claims and demands therein and thereto." At the time of the execution of the deed the railroad had been in existence for some years, having been constructed when the land was owned and occupied by the father of the appellees, and there was a good private farm crossing constructed by the railroad company, the railroad being substantially upon a level with the immediately adjacent land, where it inclined downward toward the north. This crossing was provided with heavy planks between the rails, and adjoining them on the outsides, and with graded and graveled approaches. It was maintained in this condition by the railroad companies until June, 1901, when the appellant, for the purpose of improving and equalizing the grade of its railroad, raised the surface thereof, making for that purpose an embankment or fill, throughout the course of the railroad across the land of the appellees, thereby destroying the private crossing. At the place where the crossing had been the embankment was about fourteen or fifteen feet high above the surface of the old crossing. The height of the embankment varied, but at the lowest point was more than six feet. The appellant introduced no evidence, but it appeared in evidence that the appellant had planked a place at some distance eastward from the old crossing, where the embankment was seven or eight feet high above the immediately adjacent ground, but that the sides of the embankment were not graveled nor properly graded, and no suitable approaches were constructed, and that the appellant did not provide a practicable crossing....