Rayle v. Indianapolis, Peru, & Chicago Railway Co.

Rat, J". It will be observed that every material averment of the complaint is denied by the answer. ■ Affidavits are also filed by which it appears that long before the purchase by the appellants, the owner of the property, not yet subdivided into lots, donated to the appellee the right of way immediately in front of and along the line of what are now numbered lots sixty-four, sixty-five, sixty-six, and sixty-seven, and conveyed the same by a proper release, and for a valuable consideration; and that forty feet in width was added on the east side of the railway track for such right of way, the space now claimed as a street. It is also denied in the answer, under oath, that any agent' of the company was ever authorized to make any representations, that the railroad would not occupy said forty feet for the purpose contemplated. " It also appears that such extension of the railway track along the forty feet so released to the appellee is necessary for the purposes of the company and the enjoyment of its property. Under such a state of pleadings and proof, we do not see how the court could have granted a continuance of the restraining order. The right to extend the railway track was acquired for a valuable consideration from Richmond, in the year 1850, who was then the owner of the property purchased in the year 1856 by the appellants. If Richmond had retained the property, the facts that it became of special value for residences and that the extension of the railway would impair such value, would have furnished no sufficient ground to restrain the company from the exercise of a right granted by him and necessary to the enjoyment of its own property. The subsequent purchase by the appellants, without proof of fraud on the part of the appellee, could give them no higher equity than existed in their grantor. There was a motion to reject the certified copies of entries from the records of the corporation, by which it was [268] attempted to support the averment that a release of the right of way had actually been executed to the appellee. G. N. Pollard, N. B. Linsday, J. A. Lewis, and M. Pell, for appellants. .Z). Moss, for appellee. If the overruling of this motion was error, still it could not reverse the case. It involved but a question of costs. If not proper evidence, it will be disregarded here, and as the motion to dissolve was determined upon affidavits, we look' through the proof, considering.only proper evidence,' and finding the judgment of the court below sustained, we must affirm the same. Judgment affirmed, with costs.