Roushlange v. Chicago & A. Ry. Co.
| Decision Date | 29 May 1888 |
| Citation | 17 N.E. 198,115 Ind. 106 |
| Parties | Roushlange v. Chicago & A. Ry. Co. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Lake county; Elisha C. Field, Judge.
Action by John Roushlange against the Chicago & Atlantic Railway Company to recover damages for encroachment on land. There was judgment for defendant, and plaintiff appeals.
Martin Wood and Thos. J. Wood, for appellant. J. S. Slick and W. O. Johnson, for appellee.
It is averred, in appellant's complaint, that the railway company had constructed its road across his land, “after purchase made and consideration paid for the right of way by the defendant to the plaintiff, and after the plaintiff had conveyed the right of way to the defendant by a good and sufficient deed.” It is averred, also, that a portion of the land over which the railroad was constructed was marshy; that through that portion the railway company made an embankment about 12 feet high; that, after the road had been used for about six months, the embankment thus constructed began to sink; that, to keep the grade up to the original height, the railway company deposited upon the top of the embankment a large amount of earth, sand, and other material; that, as the same was deposited, the embankment kept sinking until the road-bed finally became settled and solid; that a large amount of the earth and other material thus deposited, as it sank, spread and extended under the surface of the land beyond the land of the railway company, and upheaved the plaintiff's land adjoining the right of way, and rendered worthless several acres of it, etc. There is no charge of negligence against the railway company, unless the facts stated show it to have been negligent in the construction of its road. Claiming that no negligence is charged, its counsel insist that the complaint does not make a case against it, admitting all of the averments therein to be true, as the demurrer does.
These general propositions are established by the authorities:
First. A deed of land to a railway company for its right of way is presumed to include a license to do what is necessary and lawful in the construction and management of its road thereon, to the same extent and with the same effect as if the land had been compulsorily taken by condemnation proceedings. But, notwithstanding the deed, the company remains liable for injuries arising from negligence and unskillfulness in the construction of its road. Pierce, R. R. 133, 134. See, also, 1 Ror. R. R. 313, 314; Mills, Em. Dom. (2d Ed.) § 110.
Second. As, in condemnation proceedings, it is presumed that the assessment of damages includes all damages proper to be assessed, so deeds of rights of way are presumed to include all damages arising from the proper construction of the road. The price agreed upon is presumed to be the same that the commissioners would have arrived at on an assessment of damages. Id.; Railway Co. v. Smith, 111 Ill. 363.
Third. The rule as to what damages may be assessed by the commissioners in a condemnation proceeding is that the value of the land appropriated should be considered, together with any injury to the residue of the land naturally resulting, or that might reasonably be expected to result, from the appropriation and construction of the road in a proper and lawful manner. Railroad Co. v. McClure, 29 Ind. 536;Railroad Co. v. Horn, 41 Ind. 479, (484;)RailwayCo. v. Allen, 100 Ind. 409, (412;)Railroad Co. v. Daniel, 20 Grat. 344;Railway Co. v. Smith, supra.
Fourth. Such assessment of damages will not be presumed to cover damages resulting from the negligent construction of the road, or any portion of it, nor damages resulting from improper encroachments upon land outside of the right of way. The above stated rules of law require a holding here that, unless the rights of the railway company are enlarged, or its liabilities limited by the terms of the deed, appellant can recover such damages, and only such damages, as might properly have been assessed had the right of way through his land been taken by condemnation proceedings instead of by grant. The complaint shows that the appellant granted to the railway company a right of way through his land for the construction and operation of its road. It is not claimed that the deed conveyed any rights except the right of way, and such as are incidental to the general grant. It is not stated in the complaint how wide the strip thus granted was, but it is shown that, in the construction of the road, the company has occupied land outside of the strip granted. The general rule is that, in the construction of its road upon an acquired right of way, a railway company is not liable...
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