Ohio & Mississippi Railroad v. Bath

11 Ind. 538

• Court: Indiana Supreme Court
• Decided: January 19, 1859
• Status: Published

Opinion

Hanna, J.

Bath sued the company for constructing the road through his lands, &c. Trial and judgment for the plaintiff.

The answer set up a release of the right of way, containing, among other matters, the following clause:

“It being proposed by the Ohio and Mississippi Railroad Company to locate and construct its road through said tracts of land, or a part thereof, in consideration that said Ohio and Mississippi Railroad Company shall so locate and construct its road, as proposed, upon or through said tracts of land, any or either of them, or any part thereof, then we the undersigned,” &c.

Bath replied that the release was obtained by fraud; that at the time of the execution of said instrument, said defendant fraudulently represented that said road would be constructed at, &c., crossing said land in a place where it would have been of but slight injury, but that after-wards, &c., said road was constructed at a different place, where it was of great damage, &c.

There was no demurrer to this reply.

The plaintiff was permitted to introduce evidence tending to show the representations made to him at the time, and before he signed the release, by persons professing to act as agents of the company, as to where the road would be located, and of the fact that a line had been before that time run on another part of his land from that where it was ultimately built. The evidence was objected to, in this form, as it appears in the bill of exceptions: After the testimony in chief of a witness is set forth, this language occurs — “To all of the foregoing testimony, the defendants, by counsel, object, and the objection is overruled.”

It is now insisted that the objection was not taken at the proper time, nor iii the proper manner. See Crabs v. Mickle, 5 Ind. R. 145; Russell v. Branham, 8 Blackf. 277; 7 Ind. R. 679; Camden v. Doremus, 3 How. 530. Without deciding whether the objection to the admission of the'testimony is well taken or not, we are of opinion that the evidence thus admitted did not prove the answer, nor tend to do so, to an extent sufficient to authorize us to permit the judgment to stand. That proof consisted in oral testimony of witnesses in regard to what their opinion had been in reference to the permanent location of the road, previous to the execution of the release (this was matter of opinion only, founded upon the fact that a line had been run, and stakes set up, &c.); and the evidence of one Hoffmaster, that Clements, a director and agent of the company, sent witness to Bath to try to obtain a release, &c.; that witness stated to plaintiff that if he would release the right of way, the company would ditch and fence his road and make his land dry; but witness does not recollect whether Clements authorized him to so state or not; that the line, as then run, was along a wet piece of ground on a branch; that the plaintiff did not then sign a release.” Also, the evidence of one McTigert, who testified to a conversation had a few days before the trial (in 1854), between the plaintiff and Judge Clements, in which the latter said he understood, at the time the release was signed, that the road was permanently located in 1852, but did not know whether Clements said that he had so informed plaintiff at the time.

But it is urged that- the evidence is not all in the record. The jury were, under the statute, sent out to view the premises. We cannot perceive how that view could, in the case at bar, have had any weight upon the issue we are now considering. That view might have assisted them in coming to a conclusion as to the question and measure of damages; but we cannot see the aid to be derived therefrom upon the question of whether the release was properly obtained. The evidence appears to be all in the record upon that point.

S. Judah, for the appellants. D. M’Donald and A. G. Porter, for the appellee (1).

Per Ouriam.— The judgment is reversed with costs. Cause remanded, &c.