Shortle v. The Terre Haute and Indianapolis Railroad Company

• Decision Date: 21 April 1892
• Docket Number: 15,622
• Citation: 30 N.E. 1084,131 Ind. 338
• Parties: Shortle et al. v. The Terre Haute and Indianapolis Railroad Company
• Court: Indiana Supreme Court

30 N.E. 1084

131 Ind. 338

Shortle et al. v. The Terre Haute and Indianapolis Railroad Company

No. 15,622

Supreme Court of Indiana

April 21, 1892

From the Tippecanoe Circuit Court.

Judgment reversed, with directions to sustain the demurrer of the appellants to the second, fourth and fifth paragraphs of the answer of the appellee.

J. V Kent, for appellants.

J. T McHugh, for appellee.

OPINION

Coffey, J.

This was a petition by the appellants for a writ to assess the damages occasioned by the construction of a railroad over their lands, under the provisions of section 905 to 912, R. S. 1881.

The appellee answered:

Second. Six years' statute of limitations.

Third. Fifteen years' statute of limitations.

Fourth. Conveyance of the right of way by part of the appellants.

Fifth. Entry upon and occupancy of the right of way in controversy with the consent of the appellants and an agreement on the part of the appellants to convey such right of way in consideration of appellee's agreement to fence the same, averring compliance by the appellee on its part.

The court overruled a demurrer to these several answers, and thereupon the appellants replied to the second and third paragraphs that there was an intervening life-estate on the land at the time the appellee and its predecessors entered, and that the period fixed by the statute of limitations had not elapsed since the termination of such life-estate. To this reply the court sustained a demurrer, and the appellee had judgment for costs.

The assignment of errors calls in question the rulings of the court in overruling a demurrer to the several answers above referred to, and in sustaining a demurrer to the reply filed by the appellants to second and third paragraphs of such answer.

This application was not barred by the six years' statute of limitations, and the court, therefore, erred in overruling the demurrer of the appellants to the second paragraph of the appellee's answer. Shortle v. Louisville, etc., R. W. Co., 130 Ind. 505, 30 N.E. 639.

That there is a broad distinction between an application of the kind we are now considering and an ordinary action of trespass is almost too plain for argument.

At the termination of an action of trespass the title to the land is left where it was when the action was commenced.

In an action of trespass the owner does not recover the value of the land appropriated, for the reason that he still retains it.

In an action of this kind, where a writ issues to assess the damages, the title to the land appropriated is transferred to the railroad company and the owner recovers its value. The distinction between the two classes of cases is fairly illustrated in the case of McClinton v. Pittsburg, etc., R. W. Co., 66 Pa. 404, in which the court said: "The petition, when properly used, is not for the recovery of past damages under an unlawful entry, but for compensation for a right to be invested in the company. Though the latter is often denominated damages, its subject is essentially different from the former. It is called damages only in the sense of an unliquidated demand, but in its nature it is the price of a purchased privilege."

The court did not err in overruling the demurrer to third paragraph of the answer. This proceeding is limited by the fifteen years' statute of limitations. There is no other statute by which it can be limited. Shortle v. Louisville, etc., R. W. Co., supra. Section 3953, R. S. 1881, does purport to be a statute of limitation, and does not, in our opinion, have any application to the question now under consideration.

The court erred, we think, in overruling a demurrer to the fourth paragraph of the answer. It is pleaded as a bar to the entire application. The fact that some of the appellants have conveyed the right of way is no bar to the right of those who have not done so to have their damages assessed.

An answer which is plead in bar of the whole action and bars only a part is bad on demurrer. Pouder v. Tate, 76 Ind. 1; Falmouth, etc., T. P. Co. v. Shawhan, 107 Ind. 47, 5 N.E. 408; Reid v. Huston, 55 Ind. 173.

The court erred also, we think, in overruling a demurrer to the fifth paragraph of the answer. The facts therein set forth fall far short of constituting an estoppel against the appellants. It furthermore appears upon the face of the answer...