The Lake Erie and Western Railway Company v. Michener

• Decision Date: 16 February 1889
• Docket Number: 14,556
• Parties: The Lake Erie and Western Railway Company v. Michener et al
• Court: Indiana Supreme Court

20 N.E. 254

117 Ind. 465

The Lake Erie and Western Railway Company v. Michener et al

No. 14,556

Supreme Court of Indiana

February 16, 1889

Petition for a Rehearing Overruled April 25, 1889.

From the Howard Circuit Court.

The judgment is affirmed with costs.

W. E Hackedorn and J. O'Brien, for appellant.

J. F Elliott and L. J. Kirkpatrick, for appellees.

OPINION

Mitchell, J.

This proceeding was instituted by James B. Michener and others against the Lake Erie and Western Railway Company, to enjoin the company from entering upon a strip of land adjacent to its track, alleged to belong to the plaintiffs.

It was averred in the complaint that the railroad company's right of way constituted the west boundary of the plaintiff's land, and that the company was entering upon, making excavations, and laying tracks and switches from its railroad along and over the land owned by plaintiffs, without their consent, and without having taken any proceedings to condemn or otherwise to acquire the right to enter upon and appropriate their real estate.

It was also alleged that the defendant was threatening to continue the work to the permanent injury of the land, which injury could not be compensated in damages.

The general rule undoubtedly is, as appellant contends, that where a party has a clear and adequate remedy at law, he can not invoke the aid of a court of chancery, and ask relief by way of injunction, but a well established exception to the rule occurs when a railroad company enters upon the lands of another, without right, to lay its tracks. Upon seasonable application in such a case to a court of equity, an injunction will issue, upon the ground of necessity, in order to prevent irreparable injury. Midland R. W. Co. v. Smith, 113 Ind. 233, 15 N.E. 256, and cases cited; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446, and cases cited; 2 Wood Railway Law, 794.

When it clearly appears that a railroad company threatens, or is about, to enter upon and take permanent possession of land, without first having in some way acquired the right to do so, and without making compensation, the right of the land-owner to an injunction must be considered as settled. High Injunctions, section 628.

The complaint under consideration makes a case within the rules above enunciated, and the demurrer to it was therefore properly overruled.

The facts as found by the court, and which seem to us to be sustained by the evidence, make it appear that the appellant railroad company owns and operates a line of railroad, under a special charter granted in January, 1846, to the Peru and Indianapolis Railroad Company.

The charter of the original company authorized it to acquire a right of way not to exceed eighty feet in width. The court found that the land in controversy was part of a quarter section formerly owned by David Foster, and that the latter had executed a written release of a right of way twenty-five feet in width across the tract to the railroad company, at the time the road was about to be constructed. In constructing its road the company graded its roadway to the width of twenty-two feet, and cut and removed the timber across the Foster tract, as well as all other lands over which its road was constructed, to the width of eighty feet.

The plaintiffs are now the owners of the land on the east side of the right of way of the railroad, claiming title by mesne conveyances through Foster, their deeds, and those of their grantors, describing their west boundary as being ten feet from the east rail of the railroad track.

The court found as a fact that a former owner of the land gave permission to the railroad company to erect a water-tank, part of which is eastward of a line ten feet east of the track. This was erected in 1862, and has remained and been used continuously ever since. Other structures, such as a turn-table, engine-house, and the like, were erected eastwardly of the line described, with the permission ...