Jasper County Democrat, Volume 12, Number 59, Rensselaer, Jasper County, 6 November 1909 — TOWN OF REMINGTON LOSES OUT. [ARTICLE]

TOWN OF REMINGTON LOSES OUT.

Appellate Court Says Panhandle Railroad Can Fence Up Its Right-of-Way. The appellate court Wednesday decided that the ground occupied by a railroad through a town must either be a street at all times or a private rlght-df-way at all times, and that the town would not be allowed to treat the same right-of-way as private property assessing against it the cost of paving a street and prevent the railroad from inclosing it with a fence. ThS circuit court enjoined the The Jasper circuit court enjoined the Pittsburg, Cincinnati Chicago & building a fence between its tracks and a street pavement in the town of Remington, for which it had been compelled to pay. Judge Hadley said: “The position of appellee (the town of Remington) in this case is wholly Inconsistent with its position in the case in 168 Ind., 419, where-IL. sought to levy assessments on this very ground that appellant proposes to fence, to pay for the Improvement of the street established in the action on which this case rests. Certainly if it was all a portion of the street it was not subject to assessment for street improvements. The supreme court in that case held that said ground was the property of the appellant and subject to assessment. The appellant unquestionably has the right to fence its right-of-way so long as it does not erect barriers in any streets of the tdwn and its station along the established streets.” The court said in its decision: (1) Where the right-of-way of a

railroad running east and west through a town across Intersecting streets remained unfenced until the public, by continuous use, had converted a strip along each side thereof into a public highway and upon a suit by the railroad to quiet title to said strip the court adjudged the traveled ways on either side to be streets and quieted its title to the middle strip through the town except at street intersections, the private ownership thereof was thereby established. (2) Where the town thereupon improved one of such streets along the original right-of-way and assessed the middle portion for the cost as abutting property, and compelled payment by procuring a judgment of the supreme court that the tracks lay on private, ground, it will not be heard to assert the contrary. (3) A provision in the decree quieting said title, that “Neither party shall erect any barriers between Ohio and Indiana streets to prevent free acpess to the depot or streets,” does not forbid the erection of a fence along the south side of the track at said point which will compel persons to go round by the intersecting street crossings to get over to the depot.