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Black v. Coan.

or cause to be constructed a railroad through the township in which the lands herein described are situated, within five years from this date, do hereby sell, grant, and convey unto the said Iron City Land Company all the coal, iron ore, clay, salines, petroleum, limestone, sandstone, building stone, and all other minerals which may be found in and upon the tract or parcel of land situate in the county of Clay and State of Indiana, and known and described as follows, to wit." (Here the land is described.) "The said Iron City Land Company, their successors, and assigns may commence mining operations at any time to suit their pleasure and convenience after the completion of a railroad as aforesaid, the object of this grant being to aid in the construction of said railway. The said Thomas B. Coan, for himself, his heirs, and assigns, hereby covenants with the said Iron City Land Company, their legal representatives and assigns, that until all the minerals and substances above named are mined out of said premises, the said Iron City Land Company, their legal representatives, and assigns shall have the right of way over and under said premises for the purpose aforesaid; also the right to use and occupy so much of said premises for all ways, passages, rail or other roads, as may be necessary in carrying on said business and conveying said coal, petroleum, or other products to market. The minerals under any permanent building or yard surrounding the house shall not be mined out; and said grantor reserves the right to mine so much coal on the premises as may be necessary for his own household use and neighborhood uses. It is expressly stipulated that the premises herein described shall not be occupied by said Iron City Land Company or their assigns, until a railroad is completed as aforesaid, and if a railroad be not completed as aforesaid within five years from the date hereof, then this contract shall be null and void to all

intents and purposes.

"In witness whereof I have hereunto set my hand and seal on the 10th day of November, 1871.

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It is not alleged in the answer that the Land Company had

Black v. Coan.

ever taken possession of any part of the premises, or that a railroad had been built, or even commenced, as provided for in the instrument above set out.

A demurrer for want of sufficient facts was sustained to this paragraph of answer, and the defendant excepted. This ruling presents the only question involved here.

The matters set up in the answer, which is in the nature of a counter-claim, entitled the defendant at most to nominal damages only. A judgment will not be reversed where nominal damages only are in controversy. Patton v. Hamilton, 12 Ind. 256. The defendant has not been injured, except nominally, by the alleged breach of the covenants. The Land Company, so far as appears, have never taken possession of any portion of the land. Indeed, the instrument expressly stipulates that the land should not be occupied by the company until the railroad should be completed. Then, the railroad was to be completed within the period of five years from the date of the contract. A failure to complete the railroad within the time provided for renders the contract "null and void to all intents and purposes." Whether the defendant will be injured by the breach of the covenants, except nominally, depends upon a contingency which has not yet happened, viz., the completion of the railroad, and that, too, within the time limited. Perhaps the defendant may be substantially injured in the future. But he has not been as yet, nor are any facts shown from which it appears that he will be in the future. The case clearly falls within the principle of those in which it has been held that a breach of the covenant against incumbrances only entitles the covenantee to nominal damages, until the latter has removed the incumbrance or been in some way injured thereby. Reasoner v. Edmundson, 5 Ind. 393. And see Small v. Reeves, 14 Ind. 163; Marvin v. Applegate, 18 Ind. 425.

The appellant claims that as he could not remove the claim of the Land Company, as he could a mere lien for money, he ought to have substantial damages. But how shall they be estimated? As yet he has not been substantially injured,

The Jeffersonville, etc., R. R. Co. v. Underhill.

because the Land Company, so far as appears, has in no way occupied or interfered with the premises. The railroad is not yet completed, and until it shall be, the company will have no right to occupy the premises. The railroad may not be completed within the time limited, in which event the contract becomes a nullity, and the company will have no rights whatever in the premises. As the defendant may or may not be injured, there can be no criterion by which to estimate substantial damages. Until the defendant shall have been substantially injured, there can be no ground on which to award him substantial damages. No available error, therefore, was committed in sustaining the demurrer.

The judgment below is affirmed, with costs and five per cent. damages.

THE JEFFERSONVILLE, MADISON, AND INDIANAPOLIS
RAILROAD Co. v. UNDERHILL.

NEGLIGENCE.-Contributory Negligence.—Railroad.—Cattle Killed in City.Fence. It is negligence in the owner of cattle to allow them to run at large in a city, where a railroad is not required to be fenced; and by reason of such contributory negligence, he can not recover for cattle killed by trains of a railroad company at such place, when the company is guilty of negligence only; otherwise, where the cattle are wilfully killed.

From the Floyd Circuit Court.

G. V. Howk and W. W. Tuley, for appellant.

DOWNEY, J.-This was an action by the appellee against the appellant, to recover the value of a cow killed by a train of cars run by the appellant on the road of the Louisville, New Albany, and St. Louis Air Line Railway Co., in the city of New Albany.

The case is the same as that reported in 40 Ind. 229. The judgment was then reversed on account of the insufficiency

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The Jeffersonville, etc., R. R. Co. v. Underhill.

of the complaint. On the return of the case to the circuit court, the complaint was amended by leave of the court. As amended it consisted of three paragraphs.

In the first, it was alleged "that the injury to the cow was caused by the negligence of the defendant, and not by any fault or negligence of the plaintiff."

In the second, "by the gross and wanton negligence of the defendant, and without any fault or negligence of the plaintiff contributing directly to said injury."

And in the third, "by the gross and wanton negligence and wilful misconduct of the defendant, and without any fault or negligence of the plaintiff contributing directly to the injury." There was a fourth paragraph, which, on demurrer, was adjudged bad, and need not be further noticed.

The answer was a general denial. There was a trial by jury, a verdict for the plaintiff, a motion for a new trial overruled, and final judgment for the plaintiff.

The error relied upon is the refusal of the circuit court to grant a new trial; and the ground on which it is insisted that the new trial should have been granted is, that the evidence was not sufficient to justify the verdict. The cow was killed in an alley in the city, where, of course, there could be no fence. The case is not under the statute relating to the liability of unfenced railroads. The case turns upon the question of negligence, etc., as alleged in the complaint.

The plaintiff lived in New Albany and carried on a dairy there. His residence and dairy were about a square and a half from the railroad track, and about five squares from the point on the railroad where the cow was killed. He allowed his cows to run at large, except when they came up to be fed and milked.

We have held in several cases, that an owner of cattle allowing them to run at large, under such circumstances, can not recover when the railroad company is guilty of negligence only; that such negligence of the owner prevents a recovery, by him, on the ground of his own contributory negligence.

Holland et al. v. The State, ex rel. Fenton.

The Jeffersonville, etc., R. R. Co. v. Adams, 43 Ind. 402; The
Indianapolis, etc., R. R. Co. v. Harter, 38 Ind. 557.

Upon reading the evidence in consultation, it was the opinion of some of the members of the court that it failed to show any negligence on the part of the defendant. But as the case need not be made to turn on that point, and as the judges were not all agreed as to that, it was further considered whether the evidence showed that the cow was wilfully killed by the defendant; in which case, according to the authorities already cited, the company would be liable, although the plaintiff was negligent in allowing his cow to be at large; and it was agreed, without any dissent, that it did not. It follows, that on the ground of the objection urged, the judgment must be reversed.

The judgment is reversed, with costs, and the cause remanded, with instruction to grant a new trial.

HOLLAND ET AL. v. THE STATE, EX REL. FENTON.

GUARDIAN AND WARD.-Final Settlement.-Collateral Proceedings.-The final settlement of a guardian, made in the proper court, unless revoked, reopened, or appealed from, is conclusive upon the parties; it cannot be attacked collaterally in a suit by the ward on the guardian's bond, for the allowance to a third person of an unjust and fraudulent claim in such settlement.

From the Clark Circuit Court.

J. G. Howard, J. F. Reid, A. G. Porter, G. F. Porter, and Jewett & Jewett, for appellants.

M. C. Hester, for appellee.

BUSKIRK, C. J.—This was an action by the appellee against the appellants, upon the bond of Holland, as guardian of the relator, Keigwin being his surety.

There was issue, trial by the court, and a finding for the

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