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

• Citation: 53 N.E. 439,152 Ind. 421
• Decision Date: 07 April 1899
• Docket Number: 18,235
• Parties: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Beck
• Court: Indiana Supreme Court

53 N.E. 439

152 Ind. 421

The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Beck

No. 18,235

Supreme Court of Indiana

April 7, 1899

From the Grant Circuit Court.

Affirmed.

N. O Ross and G. E. Ross, for appellant.

A. E Steele and J. A. Kersey, for appellee.

OPINION

Dowling, J.

Action by appellee against appellant for damages occasioned by the wrongful appropriation of a strip of land claimed by appellee. Demurrer to complaint overruled. Motions to strike out parts of complaint, and to separate complaint into paragraphs, overruled. Answer in two paragraphs: The first being a general denial, and the second a special plea of twenty years occupancy by appellant and its predecessor and grantor, the Union and Logansport Railroad Company, adversely and under claim of title. Reply: (1) denial; and (2) that appellant and its predecessors and grantors never had possession beyond twelve feet from the middle of the railroad, in the direction of appellee's land. Trial by jury, special verdict at request of appellant, and judgment thereon. Upon the motion of appellant, the judgment first rendered and entered was so modified as to show that the sum recovered was for damages sustained by appellee by reason of the appropriation of the strip of land described in the judgment, and on account of the consequent injury to the adjoining lands of the appellee. Motions for a new trial by appellant, and for judgment in its favor on the special verdict. Both motions were overruled. Exceptions to the several rulings of the court were reserved.

The errors assigned and discussed by counsel for appellant are, (1) the overruling of the demurrer to the complaint; (2) the overruling of the motion to strike out parts of the complaint; (3) the overruling of the motion to separate the complaint into paragraphs; (4) the overruling of the motion for a new trial; (5) the overruling of appellant's motion for judgment on the special verdict; and (6) the decision of the court in rendering judgment on the special verdict in favor of the appellee.

The complaint is by no means a model of good pleading, but it states that the plaintiff is the owner in fee of the land described, and that he was in the peaceable possession thereof under claim of title; it alleges the value of the land, and its wrongful appropriation by appellant; and it charges that appellee sustained damages thereby, for which damages judgment is demanded. This statement of facts is sufficient to withstand a demurrer, and the ruling of the court thereon was correct.

There was no available error in overruling the motion to strike out that part of the complaint which alleged that, in the use by the railway company of the switch or side-track constructed by it on the strip appropriated, "a great noise was kept up, and that such use occasioned confusion and detriment to the plaintiff" in the possession and enjoyment of his adjoining property. It is said in Gill, Aud., v. State, ex rel., 72 Ind. 266, that "this court has never reversed a judgment because of the refusal of the lower court to strike out of a pleading immaterial matter or surplusage." In Petree v. Brotherton, 133 Ind. 692, 32 N.E. 300, the decision goes still further, and declares that "it is well settled that a judgment will not be reversed on account of the failure of a court to sustain a motion to strike out parts of a complaint. Elliott's App. Proc. section 639." See also cases collected in 2 Woollen's Ind. Digest, 16472a. In the present case the ruling was not only correct, but it was harmless, as the special verdict shows that no damages were allowed on account of such noise and confusion.

The motion to separate the complaint into paragraphs was properly overruled. A single cause of action was stated, and there was no ground for the motion. Even if erroneous, such ruling would not have authorized a reversal, unless it appeared that the appellant had been deprived of some substantial right. Section 401 Burns 1894; Wabash, etc., R. Co. v. Rooker, 90 Ind. 581; Bear v. Knowles, 36 Ohio St. 43; Goldberg v. Utley, 60 N.Y. 427.

We are next asked to reverse the judgment on the ground that the evidence is insufficient to sustain the special verdict.

The facts found by the verdict may be summarized as follows:

Appellee is the owner of the tract of land described in the complaint, beginning 125 feet south of the south line of Clark Wilcutt's addition to the town of Marion, in Grant county, Indiana; running thence west to the northeast line of appellant's railroad; thence in a southeasterly direction, on said northeast line of said railroad, to the west line of Branson street; thence north to the place of beginning, being part of the northeast fractional quarter of section seven, township twenty-four, range eight, in said county. He acquired his title in 1886 by purchase from one David Horner, who put appellee in possession of the land. Possession was held continuously by appellee until May 28, 1892, when appellant took possession of a strip thereof, of the average width of twenty feet by 183 feet, off the southwest side of said land. A misdescription in the deed executed by Horner was corrected in an action in the Grant Circuit Court, and a deed of correction was executed to appellee by a commissioner, in pursuance of the order of the court. The land fronts toward the east, and abuts on Branson street, and on the eastern part thereof, on Branson street, there are five buildings, used as business houses, the rear ends of which extend westward, toward appellant's railroad. Appellee's land, so occupied, extends westward from Branson street to a line seven (7) feet from the center of the main track of appellant's railroad; said railroad running from the southeast to the northwest, from Branson street to Adams street, in Marion, and adjoining plaintiff's land on the south side thereof. Appellant, with its corporate predecessors owned and operated a railroad from Branson to Adams street, running as aforesaid, for more than twenty years, prior to May 28, 1892, to the width of fourteen (14) feet only. The center of the main track is the center of appellant's right of way. Until May 28, 1892, there was an open passage way, between twenty and thirty feet in width and 183 feet in length, on appellee's land on the southwest side thereof, adjoining appellant's railroad. It had been left open by appellee for the purpose of obtaining access with drays and other vehicles to the rear of his said buildings, to load, unload, and remove goods and materials used and dealt in by the persons carrying on business upon the said premises and said passageway was necessary for that purpose. Said passageway had remained unobstructed until May 28, 1892, when, without appellee's knowledge, before daylight in the morning, appellant entered upon and took possession of said strip and passageway, and constructed thereon a side-track extending the whole length thereof, parallel with its main track. The side-track so constructed partially obstructs said passageway, and ever since said 28th day of May, 1892, appellant has held possession of the strip of land so taken, and has used it as a part of its railroad. The property of appellee adjoining the strip of land so taken and used is damaged by such appropriation and use to the amount of $ 200, and the value of the land taken by appellant is $ 600.

The Union and Logansport Railroad was operated in 1867, and such road has been operated by said company and by appellant ever since. The main track of this railroad remains where it was first laid. On the 28th day of May, 1892, a side-track extended, northwestwardly, across Branson street, and connected with the main track between Adams and Branson streets, and it was there before 1886. A line of telegraph poles was maintained along the northeast line of the land in controversy prior to May 28, 1892, over which line wires were strung, forming a telegraph line, which was constantly used by appellant in operating its said railroad. The new side-track complained of was constructed between said line of telegraph poles and the main track of appellant's railroad. Appellant's railroad, as constructed between Branson and Adams streets, was maintained and operated more than twenty years before May 28, 1892. The value per foot on Branson street (extending back 183 feet) of the land on which the new track was built was $ 30 on May 28 1892. There is land between the new side-track...