Town of Cicero v. Lake Erie & W.R. Co.
| Decision Date | 30 January 1912 |
| Docket Number | No. 7,494.,7,494. |
| Citation | 52 Ind.App. 298,97 N.E. 389 |
| Court | Indiana Appellate Court |
| Parties | TOWN OF CICERO et al. v. LAKE ERIE & W. R. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Tipton County; Lex J. Kirkpatrick, Judge.
Action by the Lake Erie & Western Railroad Company against the Town of Cicero and others. From a judgment for plaintiff, defendants appeal. Reversed, with instructions.John F. Neal and Phil J. Fariss, for appellants. John B. Cockrum and Shirts & Fertig, for appellee.
Appellee brought this suit to enjoin appellants from constructing a street or highway over a strip of ground in the town of Cicero which appellee claims as a part of its right of way. Issues were joined, and the court, upon request, made a special finding of facts, stated its conclusions of law thereon in favor of appellee, and granted appellee a permanent injunction. Appellants appealed to this court, and rely upon the following errors for reversal: (1) The complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in its conclusion of law upon the special finding of facts. (3) The court erred in overruling appellants' motion for a new trial.
The special finding of facts is, in substance, as follows: That appellee is a railroad corporation and owns and operates a line of road from Indianapolis to Michigan City, Ind., through the town of Cicero. That appellee's predecessor, the Peru & Indianapolis Railroad Company, prior to 1851, began the construction of said line of road. That in 1851 Elias Van Buskirk contracted with one Wm. A. Spurgin for the sale to the latter of certain real estate, including that in controversy, and in 1847 said Spurgin executed to said Peru & Indianapolis Railroad Company a relinquishment for a right of way across land which includes that in controversy, but the same did not designate the width thereof and the instrument was not placed of record. That on November 8, 1851, said Spurgin executed to said Van Buskirk a deed of general warranty for the east half of said quarter section of land across which said release granted a right of way. That said deed made no reference to said road or said right of way, and was duly recorded. That, after said railroad had been surveyed and located across said tract of real estate, said Van Buskirk, in 1851, platted said ground as an addition to the town of Cicero, immediately north of Jackson street, which runs east and west across the south end of said 80 acres, which street, and Cass street north thereof, are crossed by said railroad. That said railroad runs through blocks 1 and 2 in said addition, bearing slightly from a north and south direction, as shown by the following diagram:
Image 1 (2.67" X 5.46") Available for Offline Print
That said plat was duly signed and acknowledged, and on November 11, 1857, was duly recorded in the office of the recorder. That said Van Buskirk marked said railroad by a strip 80 feet wide on said plat, and thereby intended to and did designate and set aside said strip of 80 feet as the right of way of said railroad, and the same was accepted as such by said road. That said railroad company took possession of said right of way and constructed its road along the center line of said strip of 80 feet about 1852-53, and it and its successors have continuously maintained and operated said road thereon to the present time. That in the space between Jackson and Cass streets, next to and on the west side of the main track, there is a public street of said town which the general public has used since said addition to said town was laid out, and since the location and construction of said railroad. That said railroad has maintained a cattle guard since 1870 at a point on its road about 275 feet north of the north line of said lot 2, block 1. That when said road was constructed the land along said right of way north of Cass street was in forest, and the trees were cut and removed from a strip about 30 feet wide along said right of way, and shortly thereafter there was a fence erected along the west side of the railroad and 15 or 20 feet from the track extending north from Cass street the entire length of the strip of ground in controversy. That said Van Buskirk, while owning the property, erected said fence, and it was removed prior to 1868. That neither appellee nor any of its predecessors ever erected or maintained a fence along the west side of the main track through the land in controversy. That immediately north of the ground in dispute the railroad company maintains, and has for a long time maintained, a fence connected with the wing fence at the cattle guard and located 26.7 feet west of the center of the track. That prior to 1870 lots 2 and 3 west of the railroad and north of Cass street were inclosed and improved and buildings erected on the east ends of the lots, but none nearer than 40 feet from the center of the railroad track. That prior to 1870 the owner of the land west of the railroad and immediately north of block 1, fenced the same, leaving an alley between his ground and said lot 2, block 1, and erected a dwelling on his ground immediately north of the said alley more than 40 feet from the center of the railroad track, and a small barn 38.9 feet from said center. That said alley has been closed for more than 20 years. That prior to 1870 some use was made of the ground east of said buildings by the persons living therein, and the railroad used the space west of its tracks and north of Cass street for storing wood and ties and for other purposes, and the same was open on the south. That since the closing of said alley a fence has been maintained by adjoining landowners connecting with the fence on the east line of lots 2 and 3, block 1, and extending north to the wing fence at the cattle guards, and there has never been any road or wagon crossing over the railroad between Cass street and the first cattle guard north thereof. That after the closing of said alley the space north of that point between the railroad and the fence west thereof was occasionally used by the owners of the real estate in reaching their property, but no general use thereof was made by the public. That for more than 20 years before this suit was begun successive owners of land west of the railroad and north of said block 1 conveyed same by deeds describing the ground as beginning at the northwest corner of said lot 2, block 1; thence north 10 rods; thence east to the railroad (distance not given); thence south along the railroad to the northeast corner of said lot 2; thence west to the place of beginning. That fences on the east line of the ground so conveyed were recognized and used as the boundary line fence continuously for more than 30 years prior to the removal of the fence by appellants, which fence extends from the wing fence at the cattle guard at a point 26.7 feet west of the center of the railroad track in a straight line bearing west to the northeast corner of a barn, where the same is 38.9 feet distant from said center; thence extending south to the north line of Cass street 37.6 feet west of said center line. That at various times covering a period of 25 years the officers of the town of Cicero exercised some limited authority over the ground in controversy, but by what right, or to what extent, does not appear. That for more than 30 years appellee and its predecessors have maintained and operated a siding on the east side of its main track across Cass street extending north to a point near the cattle guards, which siding, with an elevator and coal shed, has for more than 30 years occupied and used a strip of ground 40 feet wide on the east of said railroad and north of Cass street. That appellee, as successor of the former owners of said railroad property, by divers mortgages, foreclosures, sales, and transfers, has acquired all the property, rights, and franchises of said former owners; but in none of said foreclosures or transfers was any particular description of the right of way in controversy given, nor was the width thereof stated. That, shortly before this suit was begun, the town of Cicero acquired from adjacent landowners a strip of ground 18 feet wide along the west side of said right of way north of said cattle guards and began the construction of a roadway thereon, intending and undertaking to extend the same south to Cass street. That in so doing appellants tore down the line fence on the west side of said right of way south of said cattle guards and moved the same east to a point within 15 feet of the railroad tracks. That appellants are preparing to construct a public road or street along the west side of the fence so located and are claiming the right to appropriate the ground for that purpose up to a line within 15 feet of said tracks from said cattle guards south to Cass street. That the removal of said fence, and the appropriation of said ground as aforesaid, was without the the consent or authority of the appellee. That, unless restrained, appellants will establish said fence within 15 feet of appellee's track and construct said highway as aforesaid.
Upon the foregoing finding of facts, the court stated its conclusions of law in substance as follows: That appellee is entitled to a permanent injunction against appellants enjoining them and each of them from establishing and maintaining a street or public highway upon the west line of appellee's right of way, describing the same by the fence line south from said cattle guard to Cass street as it was before being disturbed by the appellants.
The principal objections urged against the complaint are: (1) That the averment showing that appellee was the owner and had been in possession of the ground in question for more than 20 years is insufficient, for the reason that the right to establish a highway is not inconsistent with appellee's title to the land in controversy; (2) that the acts of public officers are presumed...
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