Terre Haute & L. Ry. Co. v. Erdell

• Decision Date: 12 October 1904
• Docket Number: No. 20,412.,20,412.
• Citation: 163 Ind. 348,71 N.E. 960
• Parties: TERRE HAUTE & L. RY. CO. v. ERDELL.
• Court: Indiana Supreme Court

163 Ind. 348

71 N.E. 960

TERRE HAUTE & L. RY. CO.

v.ERDELL.

No. 20,412.

Supreme Court of Indiana.

Oct. 12, 1904.

Appeal from Circuit Court, Clinton County; Jos. Claybaugh, Judge.

Action by William Erdell against the Terre Haute & Logansport Railway Company. From a judgment in favor of plaintiff, defendant appealed to the Appellate Court, which transferred the case to the Supreme Court, as authorized by Burns' Ann. St. 1901, § 1337u. Affirmed.Guenther & Clark, for appellant. Jos. Combs, for appellee.

HADLEY, J.

Appellee alleges in his complaint that the right of way of appellant's railroad abuts on his farm for about 40 rods. Many years ago, and within one year after the completion of the railroad, appellant constructed on said abutting line a sufficient fence as required by section 5323, Burns' Ann. St. 1901, made of oak posts, barb wire, and a single line of six-inch boards reaching from post to post, 16 feet apart. In the course of time some of the posts became burned off by fires, others rotted off, the boards became detached at one or both ends, the wire became rust-eaten and broken, and the fence generally so severed and fallen as to be inadequate to turn domestic animals, and for more than one year prior to July, 1902, appellant had permitted said fence to remain so broken and out of repair. On said date appellee gave appellant written notice that said fence was out of repair and unfit to turn horses, cattle, hogs, and other stock, and appellant having failed for more than 30 days thereafter to make, or to commence to make, repairs to the fence, appellee entered upon the right of way and rebuilt and repaired the same, and restored it to the condition required by the statute. On November 4, 1902, after he had completed the fence, appellee made out and furnished appellant a sworn itemized statement of the expense of rebuilding and repairing the fence. More than 60 days have elapsed since said statement was furnished appellant, but the account remains unpaid. The notice and proceeding was under section 5325, Burns' Ann. St 1901. Under an answer of general denial, judgment was awarded appellee for the full amount of the claim. Appellant's motion for a new trial for failure of proof was overruled.

The evidence shows without contradiction that the fence was originally constructed and had become out of repair as alleged in the complaint; that the notice given was under section 5325, to the effect that it was out of repair, and insufficient to turn stock, and that in reconstructing the fence appellee used wholly new posts and new barb wire, thus making a new structure. Based upon this proof, appellant's only contention here is that, since...