Vandalia R. Co. v. Fetters

• Decision Date: 11 December 1907
• Docket Number: No. 5,999.,5,999.
• Citation: 40 Ind.App. 615,82 N.E. 978
• Parties: VANDALIA R. CO. v. FETTERS.
• Court: Indiana Appellate Court

40 Ind.App. 615

82 N.E. 978

VANDALIA R. CO.

v.FETTERS.

No. 5,999.

Appellate Court of Indiana, Division No. 2.

Dec. 11, 1907.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Action by David Fetters against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.John G. Williams and Saml. Parker, for appellant. H. A. Logan, for appellee.

COMSTOCK, J.

Appellee recovered judgment against appellant for rebuilding a fence, built by him on the appellant's right of way, where his farm land abutted upon the same. The complaint alleges, in substance, that appellee's lands, being agricultural lands, abut upon the right of way of appellant's railroad, and that the original right of way fence along the said lands, on April 12, 1905, had decayed so that at that time it would not turn stock of any kind; that at said time his said lands were fenced, except along said right of way; that on said day he caused to be prepared and served upon the appellant's nearest freight agent a written notice, notifying it that he owned said lands, that the fence was out of repair, the probable cost of putting in repair, and that unless appellant rebuilt or repaired the fence within 30 days he would enter upon the right of way and rebuild or repair it himself; that, the fence not having been rebuilt or repaired pursuant to said notice, he, on May 15, 1905, built and constructed a good, woven-wire fence along the edge of the right of way next to his said lands at a cost of $106.67, and that on May 22, 1905, he prepared an itemized statement of the cost of said fence and verified the same, and delivered a duplicate copy thereof to appellant's agent, being the same agent upon whom he served said notice; that appellant failed to pay or tender the amount shown to be due by said statement within 60 days, and that said sum, together with an attorney's fee of $50, is due and unpaid. A demurrer to the complaint for want of facts was overruled, and the cause put at issue by general denial. The cause was tried by the court. Upon proper request the court made a special finding of facts, and stated one conclusion of law thereon, to the effect that appellee was entitled to recover the reasonable value of the fence constructed by him, in the sum of $99.95, and his attorney's fee of $25 and costs. Judgment was rendered in accordance with the conclusion of law. In this appeal it is contended in behalf of appellant that the court erred, first, in overruling its demurrer to the complaint, and second, in the conclusion of law.

In support of the first specification of error, appellant claims that the complaint is insufficient, because the itemized account is not made a part thereof as an exhibit or otherwise. The statute aims in three special sections to secure and maintain the fencing of a railroad's right of way, to keep all domestic animals from its tracks. Sections 5323, 5324, 5325, Burns' Ann. St. 1901. Section 5323, supra, states the duty and the manner of its discharge. Section 5324 fixes the time limit after the completion of the road for the construction of the first fence, and the landlord's right upon default; and section 5325, the duty to maintain, and the landowner's right upon the company's failure to keep up, the fence according to the original standard. Terre Haute, etc., R. Co. v. Erdel, 163 Ind. 348, 71 N. E. 960. The proceeding in the case at bar was under section 5325, supra. Said section provides that, after the landowner has taken the steps provided for in the statute, he may recover the “reasonable value of said repairs from such railroad,” etc. The itemized statement to be furnished the railroad company is not the foundation of the action. “The work and labor done and materials furnished, which have inured to the benefit of the company, is the foundation of the cause of action. When a written instrument is not the basis of the action or defense, but is only referred to as one among other facts material to the pleading, a copy or exhibit need not be filed with or made a part of the pleading.” Counsel for appellant cites section 365, Burns' Ann. St. 1901, and numerous ...