The Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Simpson
| Decision Date | 25 February 1914 |
| Docket Number | 21,849 |
| Citation | 104 N.E. 301,182 Ind. 693 |
| Parties | The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Simpson |
| Court | Indiana Supreme Court |
Rehearing Denied March 3, 1915.
From Hendricks Circuit Court; James L. Clark, Judge.
Action by Benjamin Simpson against The Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Carter & Morrison, Enloe & Pattison and Frank L. Littleton, for appellant.
S. M McGregor, Brill & Harvey and Robert W. McBridge, for appellee.
This action was brought by appellee against appellant by a complaint in nine paragraphs, alleging damages to certain real estate in Clay County, Indiana, by reason of certain unlawful acts on the part of appellant, and demanding judgment for $ 150,000. To each of these paragraphs of complaint appellant unsuccessfully demurred. Appellant then answered in sixteen paragraphs. A separate demurrer was filed by appellee to each paragraph of answer, except the first, which was a general denial. The demurrer was overruled as to the second, seventh, tenth, fourteenth and sixteenth paragraphs, and sustained as to each of the others. There was a reply in two paragraphs. The first, a general denial, the second an affirmative reply, to which a demurrer was sustained. The cause was submitted to a jury for trial. After hearing the evidence the plaintiff dismissed the fifth, sixth and eighth paragraphs of complaint. The cause went to the jury on the first, second, third, fourth, seventh and ninth paragraphs of complaint, and the first, second, seventh, tenth, fourteenth and sixteenth paragraphs of answer. Verdict for appellee for $ 25,000 and from judgment on the same appellant appeals to this court.
The errors relied upon for reversal are: (1) The court erred in overruling the demurrer to the ninth paragraph. (2) The court erred in sustaining the plaintiff's demurrer to the third paragraph of answer. (3) The court erred in sustaining the demurrer to the fourth paragraph of answer. (4) The court erred in sustaining the plaintiff's demurrer to the eighth paragraph of answer. (5) The court erred in overruling the demurrer to the third paragraph of complaint. (6) The court erred in overruling the motion for new trial.
The ninth paragraph of complaint is very lengthy, covering more than six pages of the transcript, and we will give only a concise statement of the allegations therein set out. It is alleged that appellee is and had been for more than ten years the owner of certain described land in Clay County, Indiana; that appellant, has been for more than twenty years and now is operating a line of railroad running east and west across said land; its right of way being a strip 100 feet wide, dividing appellee's land into two equal parts; that appellee became the owner in the year 1884, at which time appellant's railroad was in operation across said land on a grade, which at its deepest point was twelve feet below the surface; that underlying the entire land, are two separate veins of coal of great value; that underlying each of said veins of coal are extensive deposits of fire clay, gannister, flint, shale and other mineral, which are of great value, to wit, $ 100,000; that the top vein lies at a depth of about thirty feet beneath the surface, and the second about sixty-five feet below the surface; that the grade upon which appellant was operating its said railroad was, prior to 1905, twenty-two feet above the top of the upper vein of coal, and that between the bottom of said grade and the top of the vein of coal was solid rock more than twenty feet thick; that for the purpose of developing and utilizing the coal and other minerals, appellee constructed on his land, north of the appellant's right of way, a shaft which extended down through said several veins of coal and other mineral, erected over the same a shaft house, with all necessary machinery, hoisting apparatus, pumps and other appliances necessary for operating the same, and constructed for said shaft into and along the line of said mines of coal and fire clay and other minerals, entries and air passages, which said entries and air passages appellant well knew extended under and across the line of said right of way twenty-two feet below the grade thereof; that said entries and air passages were necessary for the development and utilization of the products of said mine; that the same with the machinery necessary to operate the same was worth $ 25,000; that appellee had placed in said mine, lines of railroad equipped with "T" steel rails, with cars necessary and proper to operate said mine, of the value of $ 6,000; that appellee had erected on his land adjacent to said mine shaft, a mill with necessary machinery, appliances and kilns for the manufacture of fire brick to be manufactured from the clay found in said mine, and burned by the coal from said mine; that said mill with its machinery and appurtenances and appliances was worth $ 25,000; that the said mine with its equipment, and the mill each and all derived their principal value from the fact of their proximity to each other, and from the existence of the entries and air passages, which rendered all of said several deposits in said several mines accessible and available for use in said mill, and that the value of each was largely dependent upon the continued maintenance of each other, and was also largely dependent upon the continued maintenance of a switch and side track, which had theretofore been constructed in connection with appellant's railroad whereby cars from said line of railroad could be run to appellee's said shaft and mill, which furnished the means of conveying the products of said mine and mill to market; that said switch and side track had been constructed in part by appellee and in part by appellant on an agreement that appellee was to grade the ground for the placing thereof and pay appellant $ 800, which grading appellee did and also paid the $ 800 to appellant, a part of the consideration being the agreement then made by appellant that it would thereafter perpetually maintain said switch and side track; that as a part of the consideration for the payment of the $ 800, the appellant agreed that appellee might thereafter maintain his said entries and air passages under and across the line of appellant's right of way; that on the day of -----, 1905, appellant by its officers and employes took possession of and appropriated to its own use a strip of appellee's land along the south side of its right of way 79 1/2 feet wide, and thereupon changed its grade across appellee's land, without in any manner acquiring the right to appropriate said land, or change said grade, and wrongfully and unlawfully cut said grade to a depth of about thirty feet, at the deepest point across said lands, thereby bringing the bottom of said grade to a point within about four feet of the roof of appellee's entries to the top vein of coal, and in violation of their agreement and without any necessity therefor, caused the rock forming the roof of said entries and air passages to be blasted and broken through, thereby destroying said entries and air passages; that a short distance east of said entries and air passages was a certain ravine on appellee's land, extending across appellant's right of way, through which ravine flowed large quantities of water, in part derived from springs, located in said ravine, and from surface water; that for more than twenty years the water flowing through said ravine had been conducted under and across said right of way through a conduit, which was of sufficient size to allow the passage of all said water; that appellant wrongfully and unlawfully took up and destroyed the said conduit and thus obstructed the passage of said water across said right of way, and thereby caused great quantities of water to accumulate on the south side of its right of way and caused the same to flow into appellee's entries and air passages in appellee's mine, which had been broken down by appellant; that with said water appellant caused great quantities of mud, rocks, railroad ties and other debris, to flow into said mines, thereby filling the said mine shaft and chambers of both of said mines and covering up and burying appellee's railroad and cars in said mine, and thereby rendering all of said mine inaccessible and impossible of future reclamation, and entirely destroying the value of said mine, with all its valuable contents of said shaft, hoisting apparatus, pumps and other appliances and appurtenances, and thus also destroying the value of appellee's plant for the manufacture of fire brick; that appellant severed the connection of the side track from its said road, and removed the same from appellee's land, and has failed and refused to restore the same; that the said brick plant had, at the time of the destruction of said mines and the removal of the side track an earning capacity of $ 12,000 per year; that by reason of the destruction of said mines and the removal of the side track appellee has been unable to operate or in any manner make use of said brickmaking plant, and has lost all use of the same for more than two years, to his damage $ 25,000; that upon the several causes of action hereinbefore set forth, he demands judgment for $ 150,000.
The sixth paragraph of complaint is the same as the ninth, except that it charges the injurious acts to have been done on the 100-foot right of way instead of the 79 1/2-foot strip, as charged in the ninth paragraph. This was dismissed before the case went to the jury. The seventh paragraph is similar to the ninth, except that it seeks to recover damages to the real estate as a...
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