Owensboro, Railroad v. Harrison

CHIB]? JUSTICE BENNETT delivered tiie opinion or the court. The appellee conveyed to the appellant a right of" way across his land for its railroad bed. The right of way was by specific boundary, that had been previously surveyed and staked off. The appellee seeks-to recover the possession of the strip of ground upon which the appellant constructed its railroad bed, because, as it is alleged, the appellant, without appellee’s consent and against his protest, constructed said track upon other ground than that conveyed to him. The appellant contends that it constructed its bed and track on the ground conveyed to it. The jury found that the appellant had not constructed its road-bed upon the ground conveyed to it. The court’s instruction upon the subject of the construction of the road-bed is correct. The appellant did not attempt to deny that the right of way had been staked off before the conveyance was made, and that the appellant built its bed upon other land against the appellee’s protest, until after the trial had begun. The court then refused to allow it to file the denial.. We can not say that the court, Under the circumstances, abused its discretion. The appellant also objects to the court’s action in sustaining a demurrer to its amendment that set up the plea of estoppel, consisting, as is alleged, in the-fact that the appellee knew and acquiesced in the appellant’s building its road-bed on its line of road. If the plea was intended as a confession and avoidance, the appellant is confronted with the fact that it had already admitted, which stood as true, that the appellant had built its road-bed against the pro [410] test of the appellee. But the plea, as we understand it, is not a plea of confession and avoidance. For the answer asserted that the road-bed was constructed on the ground conveyed, and the proposed amendment says that the road-bed was constructed on its line of way by appellee’s consent, &c. Now, taking the answer and amended answer together, they repeat the fact that the road-bed was built on the land conveyed by the appellee. The bill of exceptions is not copied in the record. The appellant can yet have its road-bed condemned as a right of way, and the court has the right to suspend the writ of possession for a reasonable time in order for it to take that proceeding, if it applies for it. The judgment is affirmed.