Indiana Union Traction Co. v. Seisler , 58 Ind. App. 507 ( 1914 )

Lairy, J.

On February 10, 1903, Josiah P. Jones was the owner of an 80-acre farm in Miami County and on that day conveyed to appellants a strip of ground across this farm to he used as a right of way for an electric interurban railroad, his wife joining him in the conveyance. This deed contained a covenant in these words:

‘ ‘ The bridge over Little Pipe Creek shall be sufficient length and height to allow said Jones to haul all farm products under and through. Also the ro>ad under the bridge of the right of way shall be kept open on the east and west sides to allow said Jones to reach the road under said bridge with said products; the said Jones is also to have a grade crossing for wagons on or near where the crossing now is at the foot of the hill.”

After the conveyance of the right of way to appellants, Jones conveyed the farm to appellee who brought this suit to enforce the specific performance of the covenants heretofore set out. The issues were tried by the court which made a special finding of facts and pronounced its conclusions of law thereon. A decree was entered, in which the court directed that appellant company should make and construct a grade crossing for teams and wagons with proper and suitable approaches thereto, at or near the point where the crossing was at the foot of the hill at the time of the conveyance from J. P. Jones and wife, to the Indiana Union Traction Company. As to the bridge over Little Pipe Creek and as to the road under the bridge, the court refused to direct specific performance and ordered that appellee take nothing by his complaint. This part of the decree which is unfavorable to appellee is not assailed, and the only questions presented on this appeal relate to that part of the decree whereby appellants were directed to specifically perform the part of the covenant in the deed, with respect to the grade crossing.

1. A demurrer addressed to the complaint was overruled and this ruling is assigned as error, but we do not pass upon this question for the reason that most, if not all, of the questions presented under this assignment arise also upon the exceptions to the conclusions of law. Some of the questions thus presented were decided adversely to appellants in the case of Indianapolis, etc., Traation Co. v. Essingion (1913), 54 Ind. App. 286, 99 N. E. 757, 100 N. E. 765. We shall not extend this opinion by a discussion of the questions considered and decided in that ease, but shall confine our discussion to a few questions which are presented here and which were not there decided.

2. Appellants contend that the facts specially found by the court show that appellee possessed a full, adequate and complete remedy at law for the failure of appellants to provide him with the grade crossing, in accordance with the covenant in the deed, and that the trial court therefore erred in decreeing a specific performance of this covenant. It is well settled that specific performance of a„ contract will not be decreed in cases where there is a plain, full, complete, and adequate remedy at law. Cincinnati, etc., R. Co. v. Wall (1911), 48 Ind. App. 605, 96 N. E. 389, and authorities there cited.

3. Section 5711 Burns 1914, Acts 1903 p. 426, §5, provides a method by which a landowner, whose land has been divided by the right of way of an interurban railway located . thereon, can obtain a driveway or grade crossing. He may require such railway company or person controlling it to construct and maintain wagon- and driveways across the right of way, at a point most convenient to such owner, and upon the failure of the railway company or person operating it, after notice having been given by the owner of such land for a period of thirty days to any conductor in charge- of any car upon such road, such owner shall have the right to enter upon the right of way and construct such embankment or make such excavations as may be necessary to establish easy grades from one tract of land to the opposite tract, and may spike planks on the ties for the space of the width of the crossing of such thickness as not to be elevated above the top of the rails, and may also bridge the gutters at the sides of the track in a manner not to obstruct the flow of water therein. It is further provided that the owner of the land shall furnish an itemized statement verified by bis affidavit, of tbe bill of tbe cost of the crossing, including material and labor, to any conductor in charge of any car on such railway, and if such company or person operating it shall fail for a period of thirty days thereafter to pay such bill such owner may recover the reasonable cost of the construction of such crossing in any court of competent jurisdiction, including a reasonable attorney fee for plaintiff’s attorney. This statute has the effect of giving to a landowner under the circumstances described therein, the right to such driveways across the right of way of such company as are reasonably convenient for the use of such landowner, and also provides a summary-means by which such landowner may construct such driveways in case the company fails to do so after the notice provided, and by which he may recover from the cempany the reasonable cost thereof together with a reasonable attorney fee in ease the company fails to pay the cost of constructing the crossing, within thirty days after an itemized statement of the same has been served upon the company, as the statute provides. This statute has reference to ordinary grade crossings to be constructed in the manner described in the statute. The landowner is entitled to enforce the construction of such crossings under the statute regardless of whether there exists any agreement or covenant by the terms of which the company is to provide them. The covenant in the deed by which the company agreed to furnish such a crossing as the statute provides shall be furnished in the absence of such agreement, amounts to nothing more than a stipulation that such crossing is reasonably necessary and that it is conveniently located. The crossing to which appellee was entitled under the covenant contained in the deed Avas in no respect different in character or in the mode of its construction from that to which he was entitled under the statute to which we have referred. He could have proceeded under the provisions of the statute to construct the crossing Avith the necessary approaches; and, in this way, he could have procured the same kind of a crossing that he would obtain in case the covenant in the deed was specifically enforced. It appears that the remedy provided by statute in a case such as this is more prompt and that it is quite as complete and adequate as any that equity affords. 3 Elliott, Railroads (2d ed.) §1141; Illinois Cent. R. Co. v. Willenborg (1886), 117 Ill. 203, 7 N. E. 698, 57 Am. Rep. 862.

4. In cases where the crossing which the company covenants to construct is different in kind or in the manner of its construction from that to which the landowner is entitled under the terms of the statute, a different question is presented. In such cases the landowner could not proceed under the provisions of the statute and thus obtain the kind of crossing for which he had contracted. If he proceeded under the statute in such a case, he could obtain only that kind of crossing for which the statute provides and not the kind which the company agreed to build as a consideration for the conveyance of the right of way. Such a proceeding would not furnish complete and adequate relief, and, therefore, in such cases, the courts will direct a specific performance of the covenant to the end that a complete and adequate remedy may be afforded. Indianapolis, etc., Traction Co. v. Essington, supra; Cincinnati, etc., R. Co. v. Wall, supra.

3. In view of the conclusion reached, the other questions presented need not be decided. The court is of the opinion that the facts found by the court show that appellee has a full complete and adequate remedy at law, and that the trial court erred in its conclusions of law in holding, under the facts so found, that appellee was entitled to a decree directing specific performance of the covenant contained in the deed providing for a grade crossing.

The judgment is reversed and the trial" court is directed to restate its conclusions of law in accordance with this opinion and to enter judgment accordingly.