Simkin v. New York Cent. R. Co.
| Decision Date | 08 March 1966 |
| Docket Number | No. 20293,20293 |
| Citation | 214 N.E.2d 661,138 Ind.App. 668 |
| Parties | Joseph S. SIMKIN and Annette Simkin, Appellants, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee. |
| Court | Indiana Appellate Court |
[138 INDAPP 669] Stewart & Austin, Anderson, for appellants.
Paul E. Schrenker, of Schrenker & Anderson, Anderson, for appellee.
This is an action in which the appellee, New York Central Railroad, sued for possession of certain real estate and was awarded judgment in the trial court without the intervention of a jury. The real estate in question was a strip of land on which a spur line was constructed by the appellee in 1890. The deed by which the railroad claims title was executed in 1889 and title is still asserted by it.
The appellant is in the auto salvage business and has been for several years. He placed junk cars on the land in question and on land owner by him adjacent to the railroad property. His answer to the complaint set out that he claimed the right to the property because of abandonment by the railroad. He admits that he holds no deed of any kind to the property.
The trial court rendered judgment for the plaintiff-appellee--that it was entitled to the possession of the real estate and awarded damages of One Dollar.
Appellant moved for a new trial which motion was overruled and this ruling is assigned as error.
[138 INDAPP 670] The grounds of the Motion for New Trial were:
a. The decision of the court is not sustained by sufficient evidence.
b. The decision of the court is contrary to law.
The track was originally built in 1890 to serve an iron works, and later it served a gravel operation. It appears that there has been no traffic over the line since about 1952. A new industry has moved in and the railroad desires to improve the tracks and serve the new customer. The appellant, Simkin, refused to move his salvage cars, claiming that the spur line was abandoned. The railroad claims otherwise and contends that it has held a good title since 1889 and that it has paid taxes on the property since that time.
The principal points of contention set out by the appellant are (1) by reason of abandonment of the spur line the appellant can retain possession (2) the lease by which the appellees claim possession was not valid because it was executed by only one of the two co-owners and that the real estate was not properly described.
[1, 2] We believe that abandonment by the railroad was not proved by the defendant-appellant. The right of way still has the ties and rails intact. There had been some use of the track as late as 1952. There was sworn testimony that the railroad had paid taxes for many years. Moreover proof of non-use does not show intention to abandon. Chicago, etc., R. Co. v. Wood (1903) 30 Ind.App. 650, 66 N.E. 923; 1 I.L.E. Abandonment, p. 1; City of Columbus et al. v. Columbus and Shelby Railroad Company (1871), 37 Ind. 294.
Title in fee simple is not lost by mere abandonment. 1 Am.Jur., Abandonment, Sec. 13, p. 14.
We agree with the trial court that abandonment was not shown.
[138 INDAPP 671] Concerning the point that the lease held by the railroad was not valid because it was executed by only one of the two owners, further explanation is necessary. In 1889, a deed was made by
In 1930, a lease was executed by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to the New York Central Railroad Company which included the real estate in question as well as many other lines of railroad in the New York Central System.
The appellant urges that the New York Centrl Railroad Company cannot assert title to the real estate in question because it did not prove ownership in fee or otherwise and that its only claim to ownership rested on a lease from the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to the New York Central Railroad Company.
It is further pointed out that the original grantees and owners were the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the...
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...shown, Southern Railway Co. v. Board of Commissioners (1981), Ind.App., 426 N.E.2d 445, trans. den. and Simkin v. New York Central Railroad Co. (1966), 138 Ind.App. 668, 214 N.E.2d 661, reh. den. In those cases, the railroad companies were owners of property but had not used portions of it ......
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