The Louisville, New Albany And Chicago Railway Company v. Malott
| Citation | 34 N.E. 709,135 Ind. 113 |
| Decision Date | 19 September 1893 |
| Docket Number | 16,272 |
| Parties | The Louisville, New Albany and Chicago Railway Company v. Malott et al |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
The judgment is affirmed.
E. C Field and W. S. Kinnan, for appellant.
N Crooke and J. E. Boruff, for appellees.
In 1883, the appellee, Josephine F. Malott, and others, as stated in appellant's brief, conveyed to the Hoosier Stone Company a tract of land in Lawrence county, removed from the main line of appellant's railroad, about three-fourths of a mile. Appellees also owned at this time the land situated between the main line of railroad and the land conveyed to the Hoosier Stone Company, and in the deed of conveyance to the Stone Company conveyed a right of way over the intermediate lands.
The words of conveyance are as follows:
"This indenture witnesseth, that William P. Malott and Florence O Malott, his wife, and John E. Malott and Josie F. Malott, his wife, of Lawrence county, in the State of Indiana, convey and warrant to the Hoosier Stone Company, of Lawrence county, in the State of Indiana, for the sum of three thousand dollars the following real estate, in Lawrence county, in the State of Indiana, to wit: The southeast quarter of the northeast quarter of section thirty-three, town. six north, range one west, containing forty acres, more or less, together with a right of way for railway switch-track from line of the Louisville, New Albany and Chicago Railway to said lands over lands of grantors, in section thirty-four, same township and range."
The railway switch-track was put in right after the deed was executed. The stone company opened up a quarry, and have ever since been shipping stone over said track, on appellant's cars, to the different markets of the country.
On the first day of November, 1890, appellees filed their complaint against appellant, stating the foregoing facts, and averring that said right of way was "appurtenant to said forty-acre tract," and "for the purpose of enabling said Hoosier Stone Company to transport its stone quarried upon said forty-acre tract of land to market, and for no other purpose, and for the use of the Hoosier Stone Company only."
The complaint further avers, that appellant, the Louisville, New Albany and Chicago Railway Company, without right or any authority whatever from appellees, has been for the past six years, and now is, using said switch and right of way for its own purposes, and for railroad purposes generally, and especially for general switching purposes; that said railway company has been, during said period, and now is, switching off trains, often long freight trains, on to said switch and right of way, and allowing them to remain there for a long period of time while waiting for other trains to pass on the track. And said railway company is now, and has been, in the habit of switching on to said switch and right of way great numbers of freight cars coupled together, for days at a time, thus blocking up the pass-ways of appellees from one part of their farm to another, which is situate upon each side of said switch.
The complaint further states, that said use, so made by said railway company of said switch, is not so done in carrying and transporting the stone of said Hoosier Stone Company from its quarry to market, but for its own separate use and benefit. Claiming damages in the sum of three thousand dollars, and praying that said railway company be enjoined from further making such unauthorized use of said switch and right of way, or any other use than transporting the products of said Hoosier Stone Company on said forty-acre tract to market or to appellant's said track.
A demurrer to the complaint was overruled, which ruling is assigned as error. An answer in general denial having then been filed, the cause was submitted to the court, and the court, on request of appellant, found the facts specially and its conclusions of law thereon. The court found the facts substantially as stated in the...
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