Boyer v. Indianapolis Northern Traction Co.

Comstock:, J. Appellant brought this action against appellees for damages on account of the alleged trespass of appellees while constructing an interurban railroad through land held and occupied by appellant as a tenant. Issues were formed on the second amended complaint and answers and replies thereto. Said amended complaint is in one paragraph, and alleges, in substance, that appellant was the tenant in possession of a certain tract of real estate owned by appellee Essington, and was engaged in farming said land; that during such tenancy, in disregard of the rights of appellant, appellee Essington sold and conveyed by warranty deed to her coappellee, Indianapolis Northern Traction Company, a strip of land entirely across the farm, to be used and enjoyed by said company as and for a right of way for an interurban railroad; that appellees knew that appellant was in possession of said real estate and resided thereon as such tenant; that it was the intention and purpose of appellees that said company should take absolute and exclusive possession of the ground so conveyed, to the complete exclusion of appellant therefrom, for the purpose of [685] constructing thereon such railroad; that said company did not acquire, nor attempt to acquire from appellant, the right of way by eoijdemnation or agreement, and no consideration was offered or paid to him for his rights, and appellees knew and intended that such conveyance and occupation would completely dispossess appellant' of said strip of ground; that after the conveyance, appellee Essington authorized said company to take fall possession of the real estate so conveyed, for the purpose Of constructing and operating said railroad, in utter disregard of the rights of appellant as such tenant; that appellees, and particularly appellee company, under and by virtue of said deed, and the authority and permission so given by its coappellee Essington, over the objection and protest of appellant, unlawfully and wrongfully did enter upon said real estate, and commit the acts of trespass set out in the complaint, such acts of trespass injuring appellant; that he was permanently evicted and excluded from the real estate so conveyed, and that it was the intention of appellees that he should be so excluded, and that appellee company did not accept and recognize him as its tenant of said real Each appellee answered separately, to the «ame effect: (1) General denial; (2) payment; (3) that before the execution of appellant’s lease appellee company had begun negotiations for the right of way, and had staked it out across said lands, and later began an action in the Hamilton Circuit Court to appropriate the real estate which was afterwards conveyed, and that appellant .had knowledge of such negotiations at the time he leased, also that appellee company had surveyed and staked out said right of way; that all damages which he would sustain were accounted for, and allowance made therefor in fixing the consideration he was to pay as rental for the farm. Appellant replied separately by general denial to the second and third paragraphs of each of said answers. A trial by jury resulted in a general verdict for appellant [686] against appellee Essington, assessing his damages at $300, and a finding for appellee company. With the verdict the jury returned answers to interrogatories. The separate motion of appellee Essington for judgment in her favor on the answers to interrogatories was sustained, and judgment rendered in her favor on said answers and in favor of appellee company on the general verdict against appellant for costs. The error relied on for reversal is “that the court erred in sustaining the separate motion of appellee Essington for judgment in her favor on the answers of the jury to special interrogatories, notwithstanding tiro general verdict. ’ ’ 1. The general verdict finds for appellant on all the material averments of complaint. “The'special findings override the general verdict only when both cannot stand, and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered by a jury upon their oath.” Amidon v. Gaff (1865), 24 Ind. 128, 130. And see Rhodius v. Johnson (1900), 24 Ind. App. 401, and cases cited. The answers to interrogatories show substantially that appellee Essington, on or about January 27, 1903, sold and conveyed by warranty deed to her coappellee, the Indianapolis Northern Traction Company, the tract of real estate-described in the complaint. In connection with appellee traction company, appellee Essington went upon and took possession of said real estate so conveyed by her, and plowed and dug it up, and constructed a railroad thereon. The only act she performed in common with said traction company was the removal of timber about May 1, 1903. After said conveyance she did not enter upon said real estate for any other purpose than to cut and remove some [687] timber therefrom, and to cross and recross said real estate in going to and from her dwelling-house located upon the real estate so leased to plaintiff. Said traction company-first took possession of said real estate about May 1, 1903. Said traction company did not by itself commence the construction of the railroad upon said real estate. The part taken by appellee Essington was to cut and remove timber. She was not in any way assisted by any of the employes or servants of the,traction company in so doing. She did not exercise over said real estate, after conveying it, any control, except to take some timber. She did not cut nor throw down any fences upon said real estate, through which any of the stock of appellant could escape, after said traction company took possession thereof. The only act of trespass committed by said Essington was to cut and remove some timber. Plaintiff’s tenancy of the real estate described in the complaint began March 1, 1903. 2. 3. There is apparent conflict in some of the answers to interrogatories, but if real they must be disregarded. Other interrogatories directly support the general verdict. Numerous acts of trespass are charged in the complaint against defendants, and the traction company, apart from the cutting of trees, is specially charged with having, under permission of appellee Essington, thrown down fences, destroyed fields of growing wheat, and committed other acts of trespass from which plaintiff suffered loss. The issues upon these allegations are decided by the general verdict in favor of appellant, and under the rule there is no irreconcilable conflict between the facts specially found and the general verdict. Judgment reversed, with instructions to render judgment on the general verdict. All concur in the reversal, but Rabb, P. J., and Myers, O. J., are of the opinion that a new trial should be ordered, and reserve the right to file their views on the mandate later.