The Elkhart and Western Railroad Company v. Waldorf

• Decision Date: 04 February 1897
• Docket Number: 2,101
• Parties: THE ELKHART AND WESTERN RAILROAD COMPANY v. WALDORF
• Court: Indiana Appellate Court

46 N.E. 88

17 Ind.App. 29

THE ELKHART AND WESTERN RAILROAD COMPANY v. WALDORF

No. 2,101

Court of Appeals of Indiana

February 4, 1897

From St. Joseph Circuit Court.

Affirmed.

Henry C. Dodge, for appellant.

A. L Brick and Alex. Wilhelm, for appellee.

OPINION

ROBINSON, J.

In the spring of 1893 the appellee was the owner of two certain adjoining tracts of land containing one and one-half, and ten acres, respectively, and the appellant, desiring to construct its railroad over said land bought the same and received a deed containing the following clauses:

"Said grantor reserves the right to possession of the entire tract of land, above described, for a period of one year from the date hereof, except a right of way sixty-six feet wide across the first above described tract of land. Also the right of possession for a period of two years, from the date hereof, to all that portion lying south of said right of way, unless said party shall desire all, or any portion thereof, except that portion occupied by said brickyard, for railroad purposes.

"The grantee hereby agrees to put in all necessary crossings for the use of the grantor, during his occupancy of said premises.

"Grantee reserves the right to enter any portion of said premises at all times to make any needed repairs, or to protect said property in any manner. Said grantor, during his tenancy, agrees to keep the same occupied and cared for, the same as if he was the owner."

At the time the deed was executed there was, upon the south part of the land, a brickyard, with machinery and sheds worth about $ 800.00, also a clay bed already opened. The brickyard and clay bed were adapted to the business of brick making and the land was unfit for any other use.

Soon after the execution of the deed mentioned above, the railroad company constructed its tracks across the land, and made it impracticable, as appellee claimed, to run the brick yard, and for this alleged invasion of the rights of the appellee, this suit was brought to recover damages.

Upon the issues joined there was a trial by jury and a verdict for the appellee, and over appellant's motion for a new trial judgment was rendered on the verdict.

The only error assigned is the overruling of the motion for a new trial.

The first and second reasons in the motion for a new trial, namely, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law may be considered together. These reasons for a new trial require a construction of the deed conveying the land in question by the appellee to the appellant.

The deed in question was under consideration in this court when this case was here on a former appeal. Waldorf v. Elkhart, etc., R. R. Co., 13 Ind.App. 134, 41 N.E. 396. In that case the court said: "The trial court seems to have disposed of the case upon the theory that under the provisions of the deed appellant had no right to dig up the clay for brick.

"Counsel for the appellee are of the opinion that the truth of this proposition is self-evident and needs no authority. With this view we are unable to agree. * * *

"In this case it was clearly the intention of the parties, as expressed in the deed, that the grantor was to have, not only the naked possession, but the use and enjoyment of the land, and that certainly included the right to use it for a brick yard and to dig the clay from the opened pit, these being essential to the use of that portion of the land for the only purpose for which it was fitted."

We think that by the terms of the deed the intention of the parties is manifest, that at the time the deed was made there should be a limited reservation in the deed in favor of the grantor, and that there should be a limitation on, and an exception out of that limited reservation. That is to say, the grantor's reservation of the right of possession to the south half of the land for two years was limited by the right of the railroad company to take possession for railroad purposes within the two years, of all or any portion of the land except that part of the land occupied by the brick yard. The possession of that part of the land occupied by the brick yard was reserved absolutely for two years, and the possession of the rest was reserved for two years, unless the railroad company wanted it within that time for railroad purposes.

It is earnestly insisted by appellant's counsel, that the reservation in the deed was not construed on the former appeal. The point in controversy is, what do the words "occupied by said brick yard" mean, when taken in connection with the whole instrument, and what part of the land would that expression include?

We think the language used in the opinion, on the former appeal, and as set out above, is a construction of the deed in question, and whether that construction be right or wrong, it is the law on this appeal. Linton Coal, etc., Co. v. Persons, 15 Ind.App. 69, 43 N.E. 651.

The third and fourth grounds for a new trial were, that the damages assessed were erroneous and excessive. The jury gave appellee a verdict for $ 1,500.00, but a remittitur for $ 750.00 was entered and judgment rendered for the balance.

Under the construction that has been placed upon the deed the appellee was entitled, under the reservation, to mine clay on the premises for two years. There is evidence in the record that, before the railroad was built, the land, where the brick yard and clay beds were located, was worth nothing except for brick yard purposes, and that the value for that purpose for two years was $ 3,000.00, and that after the railroad had built its track across the clay beds the land was worthless as a brick yard; that the fair rental value for the two years of the brick yard...