Vandalia R. Co. v. Furnas

• Citation: 182 Ind. 306,106 N.E. 401
• Decision Date: 16 October 1914
• Docket Number: No. 22054.,22054.
• Parties: VANDALIA R. CO. v. FURNAS.
• Court: Supreme Court of Indiana

182 Ind. 306

106 N.E. 401

VANDALIA R. CO.

v.FURNAS.

No. 22054.

Supreme Court of Indiana.

Oct. 16, 1914.

Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.

Condemnation proceeding by the Vandalia Railroad Company against Ella K. Furnas. From a judgment awarding damages to defendant, the Railroad Company appeals. Reversed and remanded.

W. S. Doan and J. C. Mathews, both of Indianapolis, for appellant.

ERWIN, J.

This is an appeal from a judgment for damages, in a proceeding to condemn, for additional right of way, lands needed by appellant for reduction of its grade of the main track. The land sought to be condemned is 67 feet wide and 267 feet in length off the southeast side of a tract of land containing 66 acres belonging to appellee; the southeast boundary of said tract being the northwest boundary of appellant's right of way, and on which the main track has been located and operated for more than 40 years.

The facts established in the case are, in substance, as follows: The railroad was originally the Indianapolis & Vincennes Railroad. At the time of its construction in 1866-67, the 66 acres of land now owned by appellee was a part of a farm owned and occupied by her father, Noah Kellum. On June 26, 1866, Kellum executed to the Indianapolis & Vincennes Railroad Company a release of the right of way for the road through his farm, and the road was constructed on this right of way, thus separating the 66 acres from the rest of the land owned by Kellum. The instrument of release contained no express provisions for a right of way over or across the railroad from one part of the farm to the other, except this provision:

“Provided said railroad company make provision for a stock passage under said road 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, under the direction of the engineer, so as not to obstruct the use of the tracks, the 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.”

But a private crossing was afterwards constructed and maintained during the lifetime of said Kellum, and until about the time of the commencement of this condemnation proceeding, to wit, August 9, 1910. No passage for stock under said road was ever constructed. On August 19, 1890, Noah Kellum, being still the owner of said farm, by warranty deed conveyed to the Indianapolis & Vincennes Railroad Company, its successors and assigns, this same right of way 66 feet in width; 33 feet on each side of the center line of the main track on which the railroad was then located, together with all legal rights, claims, and demands therein and thereto, which deed was duly recorded within the proper time. After Noah Kellum's death, his land was divided between his heirs, appellee acquiring title to the 66-acre tract on April 24, 1906, by a deed from her coheirs; the southeast boundary being described in the deed as the north line of the right of way of the Indianapolis & Vincennes Railroad. Subsequently an interurban electric railroad was constructed and has been ever since in operation on the southeast side of appellant's railroad and adjacent to its right of way, and interurban cars stop for passengers opposite said crossing. The reduction of grade and construction of the track on the strip of land acquired by this proceeding have destroyed the old crossing and the privilege of ingress and egress to and from the remainder of the 66-acre tract to the opposite side of the railroad and to said interurban track.

At the close of the evidence appellant requested certain instructions, No. 5 of which was refused, and in its stead the court gave of its own motion certain instructions, among which was instruction 12.

Instruction 5 requested by appellant is as follows:

“Evidence has been given that, in the construction of the plaintiff's railroad on the 67-foot strip of land condemned, a cut of varying depth has been made and is being made on a strip of land for the laying of railroad track. It is admitted by the defendant that all of said 66-acre tract of land lies on the northwest side of the right of way of said railroad. If you find from the preponderance of the evidence that the defendant, Ella K. Furnas, owned no land on the other side of said railroad right of way opposite said 66-acre tract of land, and that there was no public highway on the opposite side of said railroad right of way, which highway was separated from said 66-acre tract of land by said railroad right of way, then you will not allow her any damages on account of said cut interfering with, or depriving her of, access from the remainder of said 66-acre tract of land to the opposite side of said railroad.”

Instruction 12 given by the court is as...