The Indianapolis And Vincennes Railroad Co. v. Lewis

• Decision Date: 29 May 1889
• Docket Number: 13,603
• Citation: 21 N.E. 660,119 Ind. 218
• Parties: The Indianapolis and Vincennes Railroad Company v. Lewis et al
• Court: Indiana Supreme Court

21 N.E. 660

119 Ind. 218

The Indianapolis and Vincennes Railroad Company v. Lewis et al

No. 13,603

Supreme Court of Indiana

May 29, 1889

From the Morgan Circuit Court.

Judgment affirmed.

S. O Pickens, for appellant.

W. R Harrison, for appellees.

OPINION

Coffey, J.

On the 16th day of September, 1867, John H. Thornburgh executed and delivered to the appellant the following instrument of writing:

"I, John H. Thornburgh, of the county of Morgan, and State of Indiana, for and in consideration of the advantages which may or will result to the public in general, and myself in particular, by the construction of the Indianapolis and Vincennes Railroad, as now surveyed or as the same may be finally located (provided it be on the old grade of the Indianapolis branch of the N. A. & S. R. R.), and for the purpose of facilitating the construction and completion of said road, do hereby, for myself and my heirs, executors, administrators and assigns, release, relinquish and forever quitclaim to the Indianapolis and Vincennes Railroad Company the right of way for so much of said railroad as may pass through the following described field, parcel or lot of land in the county of Morgan, in the State of Indiana, that is to say: The west half of the southwest quarter of section 30, in township 14 north, range 2 east; also, the east half of the southeast quarter of section 25, township 14 north, range 1 east, and the right to cut and remove for my use such trees as may be standing near and liable to fall upon the track; said company to allow me to join my fences on each side of said land, and such cross-fences as are necessary, under the directions of the engineer, so as not to obstruct the use of the tracks; two pits in said railroad tracks to be put in by said company at their own expense, provided I give them notice that I require the same before the ties are laid. Said company, also, to give myself and heirs the exclusive use of any of the lands hereby released, not needed for the use of the road for the time being, after the same shall be constructed, so as in no wise to obstruct the road.

"Witness my hand and seal this 16th day of September, 1867.

John H. Thornburgh." [Seal]

After the execution of the above release, Thornburgh conveyed the land therein described to Giles B. Mitchell, subject to the right of way thereby conveyed. Mitchell died in the year 1878, and the land descended to the appellee Emma G. Lewis, as one of his heirs at law.

The complaint in this cause is in two paragraphs, the first alleging that it was agreed between the appellant and the said Thornburgh that he should convey to the appellant thirty feet only for a right of way, and that by mistake and inadvertence the scrivener who prepared said release omitted to insert therein said agreement, when in truth and in fact it was the intention of both parties thereto that the said release should contain words limiting the quantity of land thereby conveyed to thirty feet, or fifteen feet on each side of the center of said railroad.

The second paragraph of the complaint proceeds upon the theory that the grant of the right of way, above set out, conveys so much of the land only as should be needed by the appellant in the construction and operation of its road, and it avers that the appellant constructed a single track over said land in the year 1867, and took possession of fifteen feet on each side of the center of said track; that the said Thornburgh and his grantees, from the said date to the 5th day of May, 1885, have continuously occupied all the remainder of said land, cultivating the same in corn, wheat and other annual crops; that thirty feet is all that is needed by the appellant for the use of its road, and all that will ever be needed for the operation of the same; that, on the 5th day of May, 1885, the appellant, with strong hand and by force, took possession of one hundred feet of said land and enclosed the same with a strong wire fence, and has ever since excluded the appellees therefrom. This paragraph seeks to recover the possession of all said one hundred feet, except the thirty originally occupied by the appellant, and damages for the detention of the same.

The appellant filed an answer and counter-claim to this complaint, and, issues being joined by proper pleadings, the cause was submitted to a jury, who returned a general verdict for the appellees, together with answers to interrogatories. The appellant moved the court for judgment in its favor on the answers to the interrogatories, which motion was overruled and the appellant excepted. The appellees recovered judgment on the general verdict for the possession of the land claimed, and for damages for the detention of the same.

The error assigned is, that the court erred in overruling the motion of the appellant for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict. The interrogatories and the answers thereto are as follows:

"1. Did John H. Thornburgh execute and deliver to the...