
    Vandalia Railroad Company v. Muhn et al.
    [No. 6,958.
    Filed April 29, 1910.]
    1. Railroads. — Fences.—Complaint.—A complaint following the requirements of the statute for tho building of fences along a railroad right of way, is sufficient, p. 703.
    2. Railroads. — Fences.-—Notice.—A notice given by a landowner, under §5448 Burns 1908, Acts 1885, p. 224, §2, providing for the construction of a new fence, is proper, where the old fence was so out of repair that a new one was needed, p. 704.
    3. Appeal.— Affirmance.— Right Result.— A judgment which is right upon the evidence, will be affirmed, p. 704.
    4. Appeal. — Affirmance.—Penalties.—The Appellate Court may, on affirming a judgment, impose a penalty, p. 704.
    Prom Dekalb Circuit Court; Emmet A. Bratton, Judge.
    Action by Perry Muhn and another against the Vandalia Railroad Company. Prom a judgment for plaintiff, defendant appeals.
    
      Affirmed.
    
    
      Anderson, Parker & Crabill, John G. Williams and J. E. & J. H. Rose, for appellant.
    
      Dan M. Dink, for appellees.
   Watson, J.

This was an action brought by appellees, landowners, to recover the cost of constructing a fence built by them upon the right of way of appellant, where it runs through their land. To the complaint a demurrer was filed, which was overruled, and exceptions were taken. The cause was put at issue by the filing of a general denial. Trial by court, and finding and judgment for appellees in the sum of $101.01, from which this appeal is prosecuted.

The assignments are that the court erred (1) in overruling the demurrer to the complaint, and (2) in overruling the motion for a new trial.

The complaint is within the requirements of the statute in this class of eases, and the demurrer was therefore properly overruled. Chicago, etc., R. Co. v. Vert (1900), 24 Ind. App. 78; Evansville, etc., R. Co. v. Butts (1901), 26 Ind. App. 418.

The notice to the comp any "by the landowners Ayas such as is provided for under §5448 Burns 1908, Acts 1885, p. 224, §2, and contemplated the building of a fence. The appellant objects to the admission in evidence of this notice for the reason that it should have been given under §5449 Burns 1908, Acts 1885, p. 224, §2, which relates to the repairing of fences along the track of a railroad, because heretofore there existed a fence along the track Avhere the fence was built, for the cost of Avhich this action was brought. The eAddeuce upon the AAdiole sIioaa's that this fence had practically rusted and rotted aAvay. There were a feAV posts left and some rusty wire, but they were of no value and of no use in repairing a fence. There Avas, in fact, no fence to repair. The notice was correctly given. Vandalia R. Co. v. Kanarr (1906), 38 Ind. App. 146.

The decision Was not contrary to the evidence nor contrary to law. The evidence sustains the allegations of the complaint, and the correct result was reached by the trial court.

Judgment affirmed, Avith ten per cent damages.  