Sherlock v. Louisville, New Albany & Chicago Railway Company

• Decision Date: 28 May 1888
• Docket Number: 13,497
• Citation: 17 N.E. 171,115 Ind. 22
• Parties: Sherlock v. The Louisville, New Albany and Chicago Railway Company
• Court: Indiana Supreme Court

17 N.E. 171

115 Ind. 22

Sherlock v. The Louisville, New Albany and Chicago Railway Company

No. 13,497

Supreme Court of Indiana

May 28, 1888

From the Martin Circuit Court.

Judgment reversed, at appellee's costs, with instructions to sustain appellant's motion for a new trial, and to sustain his demurrer to the fifth and sixth paragraphs of appellee's answer.

W. R Gardiner, J. W. Buskirk and H. C. Duncan, for appellant.

G. W Friedley and G. W. Easley, for appellee.

Zollars J. Burns, J.

OPINION

Zollars, J.

A demurrer was sustained to the second and sixth paragraphs of appellant's complaint. That ruling is assigned as one of the errors for which the judgment should be reversed.

The substance of the second paragraph is, that appellant has owned a described tract of land for thirty years; that, in 1853, the New Albany and Salem Railroad Company, duly incorporated under the laws of this State, without having had damages assessed or tendered to appellant or his predecessor in the ownership of the land, and without his consent, or the consent of such predecessor, entered upon the land and constructed its road thereon; that said company and its successor, the appellee herein, also a corporation under the laws of this State, have ever since unlawfully continued to use the road so constructed, in the operation and moving of trains, and threaten to continue to so use the same; that said appropriation and use of the land thus occupied by the road have damaged the land and appellant in the sum of $ 2,000. The prayer was for $ 2,000 and a perpetual injunction against the further use of the road across appellant's land, in the running and operation of appellee's trains thereon, etc.

The substance of the sixth paragraph is, that appellant is the owner and entitled to the possession of a described strip of land thirty feet wide; that appellee, a railway corporation, incorporated under the laws of this State, unlawfully and without right, twenty-five years before the commencement of this action, went into the possession of the strip of land, and has continuously, without appellant's consent, held the possession and use of it, and, without right, kept him out of the possession of the same, to his damage in the sum of $ 2,000. The prayer was for the possession of the land and for $ 1,000 damages.

It will be observed that the sixth paragraph is in ejectment for the possession of the land occupied by the railway company for its roadbed. For that purpose the paragraph is clearly bad. It is averred in that paragraph, as will be seen, that the railway company entered and constructed its railway upon the strip of land twenty-five years before the bringing of this action, in 1884. It is also averred that the railway company took possession of and held the strip of land without the consent of appellant, and has ever since excluded him therefrom. It thus appears that the company had held the possession of the strip of land adversely to appellant for twenty-five years before he took any steps to recover it by action, and thus it appears that appellant's right to eject the company from the land is barred by the twenty years' statute of limitations. The rule is settled in this State, that a demurrer will not be sustained to a complaint on the ground that it shows a cause barred by the statute of limitations, unless it also appears that the cause does not come within any of the exceptions to the statute, where there are such exceptions. Epperson v. Hostetter, 95 Ind. 583, and cases there cited; Lehman v. Scott, 113 Ind. 76, 14 N.E. 914.

If there are no exceptions to the statute, or if it appear from the complaint that the cause does not come within the exceptions, where there are any, a demurrer will be sustained if it appear from the complaint that the statutory period of limitation has expired, and the case is otherwise within the statute. There are exceptions to the statute of limitations applicable here. One of them is, that any person being under legal disabilities when the cause of action accrues, may bring his action within two years after the disability is removed. R. S. 1881, section 296. Infants are persons under legal disabilities within the terms of the above section. R. S. 1881, section 1285; Lehman v. Scott, supra.

It clearly enough appears here that appellant's cause of action, as made by the sixth paragraph of his complaint, does not fall within this exception. It is shown by the averments in that paragraph, that he had been the owner of the land for at least twenty-five years, and that during that time it had been occupied by the railway company. If he was but one day old at the time the company entered upon and took possession of the land, he attained the age of twenty-one years four years before this action was commenced, and thus it appears that the railway company held adverse possession of the strip of land for more than twenty years, and that appellant did not commence his action within two years after his disability was removed.

It clearly enough appears, also, that the appellee was not, during any of the time during which it held the strip of land, a non-resident of the State or absent on public business, within the terms of section 297, R. S. 1881, which constitute other exceptions to the statute of limitations.

It is averred that the railroad company was incorporated under the laws of this State, and that it continuously held the possession of the strip of land, and maintained and operated its road thereon. And thus it appears that the company was a resident of this State, and was continuously present, operating its road.

That the company may have taken possession of the strip of land in the first place as a trespasser did not prevent the running of the statute of limitations.

Adverse possession is often wrongful, and may often commence by a trespass, but that does not prevent the running of the statute of limitations. That statute is a statute of repose, and may settle the title in an original wrong-doer.

The holding in the case of Sibley v. Ellis, 11 Gray 417, is correctly stated in the syllabus, as follows: "Open and adverse use for twenty years will establish a right of way, although the user began in a trespass."

The conclusion above reached also disposes of the claim for damages as made in the paragraph under consideration. In an analogous case the Supreme Court of Massachusetts said: "The court are of opinion, that where a mill-owner and his predecessors have in fact enjoyed and exercised the right of keeping up his dam and flowing the land of another, for a period of twenty years, without payment of damages, and without any demand or claim of damages, or any assertion of the right to damages, it is evidence of a right to flow without payment of damages, and will be a bar to such claim. It is very clear, that to raise a dam on one's own land, by which the water is set back on another's, without grant from the latter, would be a tort, for which case would lie. If such a dam is continued twenty years, without action, complaint or protest, on the part of the land-owner, it is evidence of a right; and as such right may be and often is acquired by grant, it is taken to be presumptive evidence of a grant, and may be so pleaded." Williams v. Nelson, 23 Pick. 141. See, also, Roots v. Beck, 109 Ind. 472, 9 N.E. 698, and cases there cited.

When the presumption of a grant is thus raised by twenty years' occupancy, it can not be said that damages may be awarded against an occupant for having done that which he might legally do as the owner of the land. When time has made the occupancy right and legal, it has swept away all claim for damages by reason of that occupancy. A person can not be held liable for the occupancy of land which he had a right to occupy as against all others.

The case of Cox v. Louisville, etc., R. R. Co., 48 Ind. 178, is relied upon by appellant in support of his contention that the twenty years' statute of limitations will not defeat a recovery for damages resulting from the alleged unlawful detention of the land by the railway company.

It is argued that that case lends support to the contention that the railroad as constructed and maintained, and operated by the moving of trains over it, was, and is, a continuing nuisance, and that each day's continuance is a new nuisance, for which damages may be recovered.

With reference to that case it should be observed, in the first place, that it arose out of an unauthorized construction of the railway upon a public street; and, in the second place that it does not appear in the case that the street, or any part of it, had been adversely, or otherwise, occupied by the railway company for a period of twenty years. In those particulars the case is distinguishable from that before us. It should be observed, also, that the section quoted in the opinion in that case from Angell on Limitations is authority in support of the proposition, that an adverse occupancy for a period of twenty years will defeat a claim for damages resulting from such occupancy, as made here. The section thus quoted is in harmony with the Massachusetts case above, and with the rule laid down by Mr. Wood in his work on Limitations of Actions, at page 376, section 181, as follows: "While, as we have stated, each continuance of a nuisance is treated as a new nuisance, and furnishes a new ground of action which affords a good ground of recovery, although the statute may have run upon former injuries from the same nuisance, yet this proposition only holds good when the action is brought before the person erecting or maintaining the nuisance has acquired a prescriptive right to do so, by the lapse of such a period as bars an entry upon lands adversely held by...