Pickett v. Toledo, St. Louis & Kansas City Railroad

McBride, J. The complain! in this case alleges a tortious entry upon certain lands belonging to the appellant by a predecessor of the appellee and the construction of a line of railroad thereon, which it is alleged is still maintained by the appellee as successor in ownership to the original trespasser. The appellee answered that the cause of action did not accrue within six years prior to the bringing of the suit. The appellant replied, admitting that the original trespass was committed more than six years before the commencement of the suit, but that the suit was commenced less than six years after the appellee succeeded to the ownership and possession of the line of railway, and that the operation of the road had been a continuing injury and damage to the land. The court sustained a demurrer to this paragraph of reply. This ruling presents the only question in the record. If the cause of action stated in the complaint is one that is barred by the six years statute of limitations the ruling of the circuit court was right. The question may be regarded as settled by several decisions of this court, holding that when the action is brought, as in this case, to recover damages for the trespass, section 292, R. S. 1881, applies. That section provides that actions for injury to property, damages for any detention thereof, etc., must be brought within six years after the cause of áction has accrued. The cause of action accrues when the unlawful entry is made. Strickler v. Midland R. W. Co., 125 Ind. 412; Porter v. Midland R. W. Co., 125 Ind. 476; Shortle v. Terre Haute, etc., R. R. Co., ante, p. 338. The running of the statute is not affected by the change in ownership of the railway. Judgment affirmed with costs.