.... (123 N.E.) Page Sweeting v. American Knife Co. (N. Y.).. 82 Volunteer Harbor No. 4, American Ass'n Page 511 Wabash R. Co. v. Board of Review of Cook 259 28 Terre Haute, I. & E. Traction Co. v. Ellsbury (Ind. App.). 810 Terre Haute, I. & E. Traction Co. v. Ste venson (Ind.). 785 (N. Y.). Walker v. Marcellus & O. L. R. Co. (N. Y.) 736 Walker Const. Co. v. Delaware & H. Co. 872 218 ..... Thomas & Buckley Hoisting Co., Garcone v. (N.Y.) 866 Thompson v. Fesler (Ind. App.) 188 Thompson, Muncie Foundry & Machine Co. v. (Ind.App.).. 196 Thompson v. Patten (Ind. App.)... 705 Thompson v. Postal Life Ins. Co. (N. Y.).. 750 Thornburg v. Lawrence (Ind. App.). 430 Tiedemann v. Tiedemann (N. Y.). 891 Ward, Deep Vein Coal Co. v. (Ind.App.).. 228 659 758 709 Titus v. Du Bois (N. Y.).... 892 tion v. (N.Y.). 68 Tobias, Kling v. (N.Y.)... 873 Tolleston Club of Chicago v. Carson (Ind.) Weed, In re (N. Y.).. 894 169 Weis, Kane v. (Ill.). 518 Tone's Will, In re (N. Y.). 892 Town of Arcadia, Peale v. (Ind.App.). 422 Wells, Smith v. (Ind.App.). 644 Wells Fargo & Co. Exp. v. First Nat. Bank Town of Danvers, In re (Mass.).. 87 (Ind. App.).. 700 Town of Leray v. New York Cent. R. Co. (N. Y.) Weskalnies v. Hesterman (Ill.). 314 145 Traiche, Kurak v. (N.Y.).. 377 $92 221 Travis, In re (N. Y.).. 892 Travis, People ex rel. Board of Sup'rs of Trapp v. International R. Co. (N. Y.)... Western Cold Storage Co., People v. (Ill.).. Western New York Water Co. v. Niagara West v. New York, N. H. & H. R. Co. 621 43 11 894 Wharton, Inc., Nichols v. (N.Y.) 880 ..... 883 Trepel v. Deauville Bathing Co. (N. Y.).. Wheeler v. Boston (Mass.). 684 892 Tribelhorn, People v. (N.Y.).... 883 White, Village of Larchmont v. (N.Y.). 894 White v. White (Mass.).. 389 Trimboli v. Kinkel (N. Y.).... 205 Whitney, Kimball v. (Mass.). 665 Tromblee v. North American Accident Ins. Wikoff v. New Amsterdam Casualty Co. (N. Co. (N. Y.).... 892 Y.) 894 Trudo, Keown v. (Mass.). Trzop, Haskell & Barker Car Co. v. (Ind. 99 Wiley v. Wiley (Ind. App.). 252 Williams v. Alt (N. Y.).. 499 182 Williams v. Harrison (Ind. App.). 245 Tucker v. Stetson (Mass.). 239 Williams v. State (Ind.)... 209 Tuzzeo v. American Bonding Co. of Balti more (N. Y.)....... 142 Williamson, Pittsburgh, C., C. & St. L. R. 478 Willoughby, Granite Sand & Gravel Co. v. (Ind.App.) 194 Wilmert, Baker v. (Ill.) 627 889 Union Asphalt Const. Co., Haislup v. (Ind. Wilmington Light & Power Co., Allott v. (Ill.) 731 App.) 426 Wilson v. Harrold (Ill.). 563 Union Traction Co. of Indiana v. Smith (Ind. App.).... 4 Wilson v. Strand Realty Co. (Mass.). 771 United Brethern Pub. Establishment v. (Mass.) 344 Shaffer (Ind. App.). 697 United Paper Board Co. v. Iroquois Pulp & Paper Co. (N. Y.).. 200 Winter v. Peter Doelger Brewing Co. (N. United States Fidelity & Guaranty Co. v. 178 Wisconsin Steel Co. v. Industrial Commission (Ill.).... 895 295 Wise v. Wouters (Ill.). 35 Amusement Co. V. (Mass.) 774 867 Wood v. Isgrigg Lumber Co. (Ind. App.). 702 120 Woodward, Kimball v. (Mass.) 684 Worcester Consol. St. R. Co., Pierce v. (N.Y.) 865 (Mass.) 773 Wormhoudt, Miedema v. (Ill.) 596 Vanderbilt's Estate, In re (N. Y.).. 893 Wouters, Wise v. (Ill.).. 35 Varnum v. Kogios (Mass.). 678 Wright, People v. (Ill.). 64 Vaughn v. Clare Knitting Co. (N. Y.)... Wright v. Buchanan (Ill.). 53 893 Venner v. New York Cent. & H. R. R. Wright v. Wright (N. Y.)... 71 Co. (N. Y.).. 893 Ver Dine v. Johncox (N. Y.) W. T. Grant Co., Godfrey v. (Mass.). 618 618 893 Vetault v. Kennedy (N. Y.). 894 Village of Larchmont v. White (N. Y.) 894 Young, Stevens v. (Mass.). 777 Vollero, People v. (N.Y.)... 883 Yount, Phillips v. (Ind.App.). 414 ..... (Supreme Court of Indiana. April 18, 1919.) both of Portland, and Orr & Clark, of Muncie, for appellant. 1. DEEDS 118-RIGHT OF WAY-FAILURE In a controversy over the width of a right of way in a particular tract where the same deed conveyed from grantor to the railroad a right of way through this and an adjoining tract without fixing its width, a plat to the adjoining tract filed by grantor showing the width of right of way therein is admissible in evidence. 2. RAILROADS 69 QUITCLAIM DEED TO RIGHT OF WAY-FEE-SIMPLE TITLE. Where grantor owning unplatted land quit claimed a railroad right of way across the same to a company authorized by Loc. Laws 1848, c. 94, §§ 18, 21, to receive land for such purpose in fee simple, a fee-simple title vested in the company, particularly where it held the land for more than 40 years. 3. DEDICATION 48-PUBLIC STREETS OR ROADS-EFFECT AS TO LAND PREVIOUSLY SOLD BY GRANTOR. Where grantor by a deed vested a railroad company with a fee-simple title to the right of way through certain lands which he subsequently platted, dedicating to the public certain streets or highways, such dedication could not burden the railroad company's land with a street or highway. 4. MUNICIPAL CORPORATIONS 648-STREETS -ESTABLISHMENT BY PUBLIC USER-RAILROAD RIGHT OF WAY. The fact that the public as well as persons having business with a railroad company drove over a part of a right of way owned in fee by such company which was used for the purpose of loading and unloading cars does not show a use that is either exclusive or adverse so as to establish a street by public user. MYERS, J. This was a suit by appellant against appellee, whereby the former sought to enjoin the latter from further entering upon its land and doing the things necessary for the permanent laying of a railroad switch track thereon; for a mandate requiring appellee to remove that part of the track in course of construction and to require it to restore the premises to its former condition. The complaint was in one paragraph. The cause was tried by the court, special findings of fact made, and conclusion of law stated thereon; judgment in favor of appellee. The appellant's motion for a new trial was Overruled, and this ruling is the only error assigned. The specifications relied on in support of this motion are: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the court erred in admitting in evidence, over objections by appellant, the plat of an extension of Mumma's addition to the city of Winchester, Ind.; and (4) error of the court in refusing to strike out this plat. The questions here for decision make it unnecessary for us to set out the substance of the complaint, as the special findings furnish the basis for the controlling features in this case. Briefly stated, these findings show that on May 26, 1851, John Mumma was the owner of certain real estate adjoining the town of Winchester as originally laid out, and on that day conveyed by deed to the Indianapolis & Bellefountaine Railroad Company the right of way for a railroad east and Suit by the Cincinnati, Richmond & Ft. west over the same. On June 9, 1851, MumWayne Railroad Company against the Cleve- ma platted a certain portion of this real land, Cincinnati, Chicago & St. Louis Rail- estate as an addition to the town of Win Appeal from Circuit Court, Delaware County; Frank Ellis, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes chester. The ground thus platted abutted both sides of the right of way so deeded to the railroad company. On this plat the blocks, lots, and streets are shown. The width and names of the streets are given, and the size of the lots are designated in figures. Block 3 is described as being 169 feet east and west and 80 feet north and south, and is in possession of appellant as owner through successive conveyances from Mumma. This block abuts Meridian street on the east, Pearl street on the south, an alley on the west, and so-called "Railroad avenue" on the north. As shown on the plat, Meridian street is 82 feet wide, Pearl street is 66 feet wide, the alley 12 feet wide, and Railroad avenue 110 feet wide, and embraces the tract of the Indianapolis & Bellefountaine Railroad. On this plat block 3, and others east and west of it, are designated as "Commercial Row." On October 18, 1853, Mumma made an additional plat which included real estate belonging to him adjoining both sides of the right of way of the Indianapolis & Bellefountaine Railroad Company, and immediately to the east and adjoining the real estate which he had platted on June 9, 1851. This plat was filed and recorded and is known as "Mumma's Extension." The right of way of the Indianapolis & Bellefountaine Railroad Company extends from the west to the east across the said extension, and is continuous with that portion of the right of way of the said railroad which crosses the plat of 1851; and the south line of said right of way, as shown on the plat of 1853, is a continuous line with the south line of the right of way as it appears on the plat of 1851. That the said right of way as it appears on the plat known as Mumma's Extension is 80 feet in width. In the years 1851-52, Mumma's grantee of said right of way entered upon the same and constructed thereon a main track, and to the south thereof a side track. That these tracks were constructed over the south 80 feet of Railroad avenue. That thereafter appellee became the successor and owner of all the rights, property, and privileges of the Indianapolis & Bellefountaine Railroad Company, situate and shown on said plat as Railroad avenue and immediately north of block 3. That, since the construction of said main track and side track, appellee and its predecessor have been continuously in possession of the 80 feet of ground north of the south line of Railroad avenue and abutting block 3, and during all of that time they have continuously occupied and used the same. That for more than 30 years appellee has used the space between its tracks and block 3 for a coalhouse, toolshed, and as a place for the storage of materials for use in the repair and construction of its railroad, as also by its customers and shippers for the purpose of loading and unloading cars. That in the year 1885 appellee constructed on the passageway between its side track and block 3, and near the northwest corner of block 3, a telegraph and interlocking tower which obstructed and closed this way for the use by teams. That no part of the south 80 feet of Railroad avenue throughout its entire length was ever in any manner improved by the public, or by the town or city officials of Winchester. That the rails of the tracks so constructed as aforesaid within Railroad avenue projected above the grade on which they were laid, rendering it unsafe and inconvenient to drive over with teams. That in the year 1906 the city of Winchester improved the north 30 feet of Railroad avenue from the east side of Meridian street to the west side of Main street, with a brick pavement for which appellee's right of way was assessed benefits which it paid. Main street is the first street east of Meridian and intersects Railroad avenue. That for more than 40 years prior to the bringing of this suit appellee maintained upon the south side of Railroad avenue and to the east of Meridian street a third track known as the "Commercial" or "Stub" track, which extended from the east end of Railroad avenue to the east side of Meridian street and was continuously used by appellee as a loading and unloading track, especially for the purpose of loading and unloading from and into the buildings located on the south side of, and abutting upon, said Railroad avenue, which buildings were owned and used by divers persons and corporations. That some of these buildings were owned by appellant and occupied by its tenants. That this use of the third track was without objection on the part of appellant. That in May, 1914, appellee extended said third track to the west across Meridian street and south of the side track to a point near the telegraph and interlocking tower, and over the ground theretofore continuously used by it and its customers. That appellee and its predecessor since May 26, 1851, has been in open, notorious, exclusive, uninterrupted, and adverse possession under color of title of the south 80 feet of Railroad avenue as laid out on the plat, and especially that part located to the west of Meridian street north of block 3, which is the real estate in controversy. That appellee at the time of bringing this suit was not, nor since that time has it, engaged in digging up the soil or engaged in laying a switch track, nor has it laid any switch track upon block 3, the property of appellant. Upon these findings the court concluded that the law was with appellee; that the temporary restraining order should be dissolved. We will consider the questions presented in their reverse order, and, in doing so, our attention will first be directed to the ruling of the court in admitting in evidence a certified copy of the plat of John Mumma's extension to Mumma's addition to Winchester. [1] It appears that the plat in question |