White v. Chicago, St. L.&P.R. Co.

• Decision Date: 06 February 1890
• Court: Indiana Supreme Court
• Parties: White v. Chicago, St. L. & P. R. Co.

122 Ind. 317

23 N.E. 782

White

v.Chicago, St. L. & P. R. Co.¹

Supreme Court of Indiana.

Feb. 6, 1890.

Appeal from circuit court, Cass county; M. Winfield, Judge.

Fausler & Shaffrey and Nelson & Myers, for appellant. N. O. Ross and Geo. E. Ross, for appellee.

Olds, J.

The appellee is the owner of a railroad running on and over Canal street, in the city of Logansport. Said street is 60 feet wide, and the main track of said railroad, as originally built and ever since maintained, is located along the center of said street. Appellant is the owner of a lot abutting and fronting on the south side of said street, upon which is situated a dwelling-house in which she resides, and her only means of ingress and egress to and from said lot is from said street. After the construction of the main track of said railroad, the defendant company, without any permission of the owner of said lot, and without any proceedings to condemn the street for the use of said company, except the original proceedings, when the road was constructed, built a second track, or side track, along said street, along and upon the south half of said street, south of the main track in front of the said plaintiff's lot and residence, and has for several years maintained and used the same. The appellant brings this action for damages sustained by reason of the building and using of said extra or side track upon the south half of said street in front of her lot. She alleges the facts in her complaint, and asks for damages sustained. Issues were joined, and, a trial by the court, without the intervention of a jury, resulting in finding and judgment in favor of the defendant below, the appellee. Upon proper request, the court found the facts specially, and stated its conclusions of law. The appellant excepts to the conclusions of law as stated by the court, also moves for judgment in her favor on the facts found; which motion is overruled, and the ruling assigned as error. The findings of fact and conclusions of law, as stated by the court, are as follows:

“Finding of Facts. The court, having been requested by the parties to find the facts, with the conclusions of law thereon, with the view of excepting to the decision of the court upon the questions of law involved in the trial, finds the following facts, to-wit: First. The court finds that the plaintiff is the owner in fee-simple of lot four, of James A. Taylor's addition to the city of Logansport, Cass county, Ind.; that she acquired title thereto on the 4th day of January, 1870, remotely through said Taylor, and has had possession thereof ever since, and up to the present time, and that said lot is a part of two lots on the south side of Canal street, and opposite lots eighteen and nineteen, and was owned by said Taylor, in fee-simple, during the months of June and July, 1859, and until after January, 1863. Second. That on the 9th day of June, 1859, the Toledo, Logansport & Burlington Railroad Company filed in the office of the clerk of the Cass circuit court the instrument of appropriation, to-wit: ‘To All Whom It May Concern-Take Notice: The Toledo, Logansport, and Burlington Railroad Company, a corporation duly organized in pursuance of the general railroad law of the state of Indiana, approved May 11th, 1852, for the purpose of constructing, maintaining, and operating a railroad within the state of Indiana, agreeable to their articles of association, has located the line and route of their said railroad over and across the lands and premises hereinafter mentioned and described, and that said company intends to, and does hereby, under and pursuant to the provisions of law, appropriate the rights, interests, lands, and premises hereinafter described for the purpose of constructing, operating, and maintaining their said railroad. Said company, not having agreed with the owners of the lands touching the damages which may be sustained by them by reason of the construction of the same, or for the lands, interests, and real estate thereby appropriated as aforesaid, to the end that appraisers may be appointed to assess said damages, if any may be by them sustained, does hereby file these articles of appropriation, describing the interests and rights to be appropriated, to-wit, [describing certain lands.] Also, in and through Canal street, in the city of Logansport, Cass county, Indiana, so far as said company may be legally liable for damages to the owners of lots, and parts of lots, on either side of said street, who are as follows, to-wit: James A. Taylor, as the owner of two lots on the south side of Canal street, opposite lots eighteen and nineteen, such appropriation to include the right of said company to take materials for the construction and repair of said railroad at any point within fifty feet of the center of said railroad, except along said street, with the right of way over said tracts of land sufficient to enable said company to construct and repair said road, and the right to conduct water by aqueducts, and the right to make drains, and to have and to hold said rights, interests, and privileges to the use of said company, so long as the same shall be required for the uses and purposes of said road, in as full and ample and perfect a manner as may be required for that purpose; reference being had to the map and surveys of the engineers of said company showing the line, route, and location of said railroad, and to the certificate of location attached thereto, and being part thereof, filed in the office of the clerk of the Cass circuit court, for a more particular description of the said tracts and parcels of land so taken and rights and interests so appropriated, by said company for the purposes aforesaid. In witness whereof the said company has caused these presents to be signed by their president this 21st day of June, 1859. D. M. Dunn, President.’ A copy of the map and survey of the line and route of the location of said railroad is attached hereto as a part of said instrument of appropriation, and marked ‘A.’ That on the 29th day of June, 1869, the foregoing instrument of appropriation was served on James A. Taylor, by the delivery to him of a copy thereof; and on the 1st day of July, 1859, the judge of the court of common pleas, in vacation, appointed three disinterested freeholders of said county appraisers to assess the damages that said Taylor might sustain by reason of said appropriation. That afterwards, on the 4th day of July, 1859, said appraisers made their appraisement, and filed it in the office of the clerk of said county, in which they gave and assessed in favor of said Taylor, as the damage he would sustain, as the owner of said lots, by such appropriation, the sum of one hundred dollars, which sum was afterwards on the 10th day of October, 1859, paid to and accepted by him as and for his said damage. Third. That during the years 1859 and 1860 said Toledo, Logansport & Burlington Railroad Company completed said railroad, by building a single track along Canal street, near the center of the street, so that cars could run over the same, and that it has been used and operated as a railroad ever since, and is now so used, and that the defendant is, and has been since April 2, 1883, the owner of and operating the same, as the remote vendee of said Toledo, Logansport & Burlington Railroad Company. Fourth. That the plat hereto attached, marked ‘B,’ is a correct representation of said railroad tracks of the defendant as used and operated on the 2d day of April, 1883, when it first commenced operating said road, and as it has remained ever since, through Canal street, in front of the plaintiff's property; that the lot marked ‘4,’ on the south side of Canal street, represents the plaintiff's lot, and so much of it as is marked with diagonal lines represents her dwelling thereon; that the north red line represents the original main track of said railroad, the south rail of which is twenty-nine feet north of the north line of the plaintiff's lot, and said Canal street is sixty-six feet wide; that the south red line represents a side track that was put in and constructed where it now is in the year 1871, by the remote grantors of the defendant, without other or further condemnation or appropriation proceedings than hereinbefore mentioned, and without the consent of the plaintiff, and she at the time made objections to the men engaged in the work, and it was extended from Third street to a point nearly opposite the east line of lot number twenty-one, as marked on said plat, the east end being designated by a small black mark or line at right angles with the red line; that in the year 1882, and before this defendant owned or had possession of said road, said south track was extended to the shops connected with said road, a distance of about one mile, and since that time has been used as a track for trains going east, and the north track for trains going west; that the end of the ties are fourteen feet, and the south rail of the south track fifteen feet and two inches, north of the north line of the plaintiffs lot, and that the distance between the center lines of the north and south tracks, above mentioned, is twelve feet and two inches. Fifth. That at the time said side track was constructed, in the year 1871, the Columbus, Chicago & Indiana Central Railway Company was the owner of said railroad; that, under an order and decree of foreclosure of the circuit court of the United States for the district of Indiana, said railroad, with all things thereto appertaining, was sold, and on the 21st day of February, 1883, was conveyed, to William L. Scott, Charles J. Osborn, and John S. Kennedy, who, on the 17th day of March of the same year, conveyed the same to the defendant, and that on the 2d day of April, 1883, the defendant took possession of said railroad, and has operated it ever since, and has maintained, kept up, and used said side track ever since. Sixth. That...