President of the Cincinnati, Union, & Fort Wayne Railroad v. Sipe

Hanna, J.

This was a suit in the nature of an action of trespass, commenced by Sipe against the company, in which he alleged that he was the owner of certain lands, and that the company, by the construction of their road over the same, had committed injuries, &c., to the damage, &c.

An answer containing five paragraphs was filed. THe issue made upon the fifth, presents the question to be first settled.

That paragraph averred that the company had the title to the right of way, through and over said land, eighty feet in width, as located, &c. • The reply to this paragraph was a denial.

It is insisted by the company that the part of the pleadings above stated put in issue the title to real estate, and, therefore, the Common Pleas Court had no jurisdiction, under the statute. 2 R. S. p. 18.

Perhaps these pleadings do not claim title to as full an extent as might be done under the general railroad law, &c.; but the question is raised, whether the right of way for a railroad over the lands, &c., for an indefinite period of *68 time, is such a title as the Common Pleas Court may not tiy.

J. Smith, for the appellants (1) . J. Brown, T. M. Browne, and J. J. Cheeney, for the appellee (2) .

Chapter 2, book 2, of Black. Com., treats of real property, and, in reference to the several sorts, divides the same into lands, tenements and hereditaments, and states that hereditaments are corporeal or incorporeal; and in the next chapter, in treating of such incorporeal hereditaments, under the fourth subdivision, is that of ways, or, “ the right of going over another man’s ground.” “ It is an incorporeal hereditament of a real nature — a mere easement, entirely different from public or private roads.” 2 Bouv. Dict. 647. An easement is a liberty or privilege which one man may have in the lands of another, without profit; it is an incorporeal hereditament. 1 Bouv. Dict. 457.

The right to construct and operate a railroad over the lands of the citizen, is often mentioned as an easement by late writers upon law, and in late decisions of the Courts.

An easement, then, of this character, is at least held by a possessory title — a right to use and occupy a certain portion of the lands for a certain purpose. Redf. on Railw. 127, note.

A somewhat analogous statute has already received a construction by this Court, and by that construction it is decided that the several kinds of titles to real estate are included within its provisions, to-wit, fee simple, legal, equitable, and possessory. Anderson v. Buchanan et al., 8 Ind. R. 132. —Smith v. Cronkhite, id. 134.

Following these principles and decisions, we are of opinion that the title to real estate was so far put in issue by the pleadings, as to oust the Court of Common Pleas of jurisdiction.

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