Straub v. The Terre Haute And Logansport Railroad Company

• Decision Date: 23 November 1893
• Docket Number: 16,397
• Citation: 35 N.E. 504,135 Ind. 458
• Parties: Straub v. The Terre Haute and Logansport Railroad Company et al
• Court: Indiana Supreme Court

35 N.E. 504

135 Ind. 458

Straub v. The Terre Haute and Logansport Railroad Company et al

No. 16,397

Supreme Court of Indiana

November 23, 1893

From the St. Joseph Circuit Court.

Judgment affirmed.

O. M Cunningham and A. L. Brick, for appellant.

J. G Williams, S. O. Bayless and C. G. Guenther, for appellees.

Dailey J. Howard, J., took no part in this case.

OPINION

Dailey, J.

This action was commenced in the St. Joseph Circuit Court on February 26th, 1891.

The complaint alleges, in substance, that the appellee, the Indiana and Lake Michigan Railway Company, in 1889, constructed a railroad through the lands of the appellant; that the right of way over the appellant's lands was acquired by condemnation proceedings; that the viewers appointed assessed his damages in the sum of $ 2,100; that the appellant prosecuted an appeal to the St. Joseph Circuit Court, and, pending said appeal, an agreement was entered into by the appellant and the appellee, the Indiana and Lake Michigan Railway Company to the effect that in consideration that the appellant accept $ 2,100, the amount allowed by the appraisers, as damages for such right of way, said appellee would do certain extra work, the nature of which is specified in the final order and decree in said proceedings, as follows, omitting the caption:--

"Now come the parties to this suit by counsel, and on motion the continuance herein is set aside, by agreement of parties, the court finds that the appraisement hereinbefore made by the appraisers appointed by the judge of this court should be confirmed, subject, however, to the following modifications: That the said John Straub shall have the right, at all times, to have eleven (11) tile drains kept up and maintained under and across the land owned by him, as platted in the following map--running across the right of way and the roadbed of said railway company. Ten (10) of the said tile drains are to be located on or about the line of the double yellow lines marked on said plat, and the other at such place as may be mutually agreed on between Mr. McKean, the general engineer of the Terre Haute and Logansport Railway Company, and Mr. Straub. If they can not agree on the location, then on such location as may be fixed by Mr. Straub. Six (6) of said tile drains are to be of six (6) inch boxes, and five (5) of them to be of four (4) inch boxes. The material for the same to be furnished by Mr. Straub. Mr. Straub is to make the excavations, and pay all expenses and cost thereof, and keep the same in good order up to the actual roadbed of the railway company, and the railway company is to place and keep the boxes under the roadbed; the company shall pay Straub the value of so much lumber as goes into the roadbed. Straub is to furnish first-class heavy oak lumber for the tilings.

"The railway company will keep open culverts for the flow of the water at the points marked D, A, E and G on said plat, and will dig a ditch sufficiently deep to carry water along the northerly side of the right of way from the points F and K to said culvert G. In case the culvert G will not carry off the water, the railway company will put in another culvert to the point marked F. Said tile drain and culvert are to be kept sufficiently low to carry water and drain the land on each side of the railway, and when the culverts are renewed the railway company shall replace the culverts with pile bridges.

"The railway company shall put and maintain farm crossings for Mr. Straub at the points marked F, A and B, and will keep up the said crossings and approaches thereto in good condition, and the railway company will put in cattle guards at the point marked A, and iron cattle guards at the point marked F.

"The water from the Lake Shore ditch, near the crossing of the Lake Shore Railway Company and the land of the petitioning company, is not to be carried to the culvert G. The tile drains are to be put in by the 30th day of April, 1890, and the other work is to be done as soon as practicable.

"It is, therefore, ordered that the appraisement and appropriation of the land in this case be approved and confirmed, subject, however, to the modifications and conditions aforesaid.

"And said appropriation, assessment, modifications and conditions shall, at all times, be binding and obligatory on the parties to this suit and their heirs, assigns and successors and representatives.

"And it is further ordered that the Indiana and Lake Michigan Railway Company pay all the costs and expenses of this proceeding."

The appellant further alleges, in substance, that the right of way of the appellee, the Indiana and Lake Michigan Railway Company, crosses appellant's land from southeast to northwest, cutting his land into triangles, and crosses his farm roads at acute angles; that appellant has, for several years, maintained a fence and ditch north and south through said tract; that the ditch and fence intersect the right of way at point F in diagram attached; that the land along said ditch and fence was used as a farm road, for the reason that being drained, it was rendered firm and capable of bearing heavy loads; that by the order aforesaid said appellee was to place and maintain a farm crossing at point F; that it was expressly agreed that said crossing should be a direct continuation of the farm road and not to deflect therefrom or cross the right of way at right angles; that in consideration of the $ 2,100 damages being accepted by appellant, he was to have the crossing laid, as aforesaid, so as to be relieved from the expense of changing the road; that said order of the court was made according to the agreement and stipulation, and it says said appellee shall put in and maintain farm crossings at points F, A, and B, and keep the same in repair; that the agreement upon which the judgment was founded, was that the crossings were not to be placed at right angles, but in direct line with the farm road; that this is the only reasonable way in which the crossings should be made; that said appellee disregarded this agreement, but constructed the crossing at right angles with the right of way; that before the crossing was so constructed, he requested...