Stauffer v. Cincinnati, R.&M.R. Co.

• Decision Date: 29 March 1904
• Parties: STAUFFER et al. v. CINCINNATI, R. & M. R. CO.
• Court: Indiana Appellate Court

33 Ind.App. 356

70 N.E. 543

STAUFFER et al.

v.CINCINNATI, R. & M. R. CO.^*

Appellate Court of Indiana, Division No. 1.

March 29, 1904.

Appeal from Circuit Court, Pulaski County; J. C. Nye, Judge.

Action by the Cincinnati, Richmond & Muncie Railroad Company against John Stauffer and others. From a judgment for plaintiff, defendants appeal. Transferred from the Supreme Court under Act March 12, 1901 (Acts 1901, p. 567, c. 247, § 10). Affirmed.

Geo. Burson and William Spangler, for appellants. F. L. Dukes, S. Bybee, and Robbins & Starr, for appellee.

ROBINSON, J.

Appellee sued to enjoin appellants from removing certain buildings from a strip of land it had acquired for a right of way by condemnation proceedings. The complaint shows that the appraisers awarded appellants $2,980, which sum was paid into the clerk's office and was paid to and accepted by appellants on the same day. It is also averred that on the premises are located, at the present time, certain buildings, which appellants are attempting to remove, and thereby irreparably damaging appellee.

As the action is not based upon the instrument of appropriation, it was not necessary to set it out in the complaint or to file it as an exhibit. It is only where the action is founded on a written instrument that the original, or a copy, must be filed with the pleading. Burns' Ann. St. 1901, § 365.

It is a general rule that, to authorize a court of equity to interfere by injunction, there must be something more than a mere violation of a plaintiff's rights; it must appear that this violation is of such a nature as is or will be, attended with substantial or serious damages. But it is not enough that there is a complete remedy at law. “If the remedy at law,” said the court in Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580, “is sufficient, equity cannot give relief, but it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice, and its proper administration, as the remedy in equity.” Boyce v. Grundy, 3 Pet. 210, 7 L. Ed. 655;English v. Smock, 34 Ind. 115, 7 Am. Rep. 215;Clark v. Jeffersonville R. Co., 44 Ind. 248;Thatcher v. Humble, 67 Ind. 444;Fitzmaurice v. Mosier, 116 Ind. 363, 16 N. E. 175, 19 N. E. 180, 9 Am. St. Rep. 854;McAfee v. Reynolds, 130 Ind. 33, 28 N. E. 423, 18 L. R. A. 211, 30 Am. St. Rep. 194;Town of Winamac v. Huddleston, 132 Ind. 217, 31 N. E. 561;Alexander v. Johnson, 144 Ind. 82, 41 N. E. 811;Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731;Denny v. Denny, 113 Ind. 22, 14 N. E. 593.

The first paragraph of answer admits the condemnation proceedings and the payment of the award to the clerk, does not deny its acceptance by appellants, and alleges that on the land taken, and in which appellee acquired only an easement, was the dwelling house of appellants, which did not become the property of the appellee by reason of the condemnation proceedings, but is and has been at all times the property of the appellants, which they have the right to remove from the right of way, and that appellee has no title or interest therein. The second paragraph further alleges that the building is not needed and cannot be used by appellee in the construction and operation of its roads, that the appraisers believed and acted upon the theory that the house did not pass by reason of the condemnation proceedings, and that the award was made without taking into consideration the value of the building. The third paragraph alleges, in addition, the acceptance of the award by the appellants, that the appraisers acted on the theory that appellants could remove the building, and did not take into consideration the value of the house, but, on the contrary, did award, as part of the damages, and allow them, $150 as and for expense and cost of removing the building from the right of way.

The statute conferring power on railroads to appropriate land (section 5160 et seq., Burns' Ann. St. 1901) provides that the corporation shall deposit with the clerk of the court “a description of the rights and interests intended to be appropriated; and such land, rights and interests shall belong to such company, to use for the purpose specified, by making or tendering payment” as provided. It is further provided that the appraisers “shall consider the injury which such...