York v. Randall

• Decision Date: 28 April 1885
• Citation: 102 Ind. 453,26 N.E. 122
• Court: Indiana Supreme Court
• Parties: New York, C. & St. L. Ry. Co. v. Randall.

102 Ind. 453

26 N.E. 122

New York, C. & St. L. Ry. Co.

v.Randall.¹

Supreme Court of Indiana.

April 28, 1885.

Appeal from superior court, Allen county.

W. H. Coombs, R. C. Bell, and S. L. Morris, for appellant. P. A. Randall and W. J. Vesey, for appellee.

NIBLACK, J.

The complaint in this case charged that the appellant, the New York, Chicago & St. Louis Railway Company, and the appellee, Perry A. Randall, on the 15th day of October, 1881, entered into an agreement, in writing, as follows: “This agreement, made this 15th day of October, 1881, by and between Perry A. Randall, party of the first part, and the New York, Chicago and St. Louis Railway Company, party of the second part, witnesseth: That the said party of the first part hereby grants and leases to the said party of the second part the right to construct a railroad track, commonly called a ‘Y,’ from the line of its railroad, west of where it intersects the line of the railroad of the Pittsburgh, Fort Wayne and Chicago Railway Company, over and upon a portion of the N. W. frac. 1/4 of section six, township 30 north, of range 12 east, in Allen county, owned by said Randall, upon the line now designated and located for said Y, so as to connect the road of the said party of the second part with the Pittsburgh and Chicago Railroad, and to occupy and use for such construction a strip of land 50 feet wide upon each side of said line, and to hold, use, occupy, and operate said track upon and over said right of way, for the period of one year from the date hereof, in consideration of the payment by said party of the second part, to said party of the first part, of the sum of $400, the receipt of which is hereby acknowledged. It is also further agreed that, if said party of the second part, at, or at any time before, the expiration of this lease, shall determine to permanently use said track and right of way, and so notify said Randall, it shall have the right to proceed to appropriate the same, and have the value thereof fixed, as provided by law in case of condemnation or appropriation of lands for the use of railroad companies, without prejudice from or by reason of this agreement, or the use or occupancy hereunder, the same as if such proceedings were begun at this time, and said sum of $400, so paid as aforesaid, shall, in that event, be applied and credited and allowed as a payment on the sum so fixed as the price of said premises in such proceedings to appropriate, as aforesaid; and, in any such proceedings to appropriate and fix thereunder the value of said premises, no account shall be taken of the value of any work done, or property placed thereon, by the said party of the second part in constructing and using its said track; and, should it not desire to permanently use nor appropriate said premises, it shall, at the expiration of this lease, have the right to remove any ties, rails, or superstructure placed by it on said premises.” The complaint further charged that, on the said 15th day of October, 1881, the railway company entered into the possession and occupation of the strip of ground therein described, pursuant to said agreement; that, after the 15th day of October, 1882, the railway company elected to continue its tenancy of said strip of ground for another year from that day, upon the same terms, and at the same rent, as provided by the agreement for the preceding year, and continued and remained in the possession and occupation of the same; that there was due from said railway company to the said Randall the sum of $400 for rent for said strip of ground for the year commencing on said 15th day of October, 1882, which remained unpaid.

A demurrer to the complaint being first overruled, the railway company answered in six paragraphs. The first paragraph was in denial. The second averred that, at the time the agreement referred to was entered into, the lands described by it were uninclosed...