
    Vandalia Railroad Company v. Blum et al.
    [No. 6,863.
    Filed April 27, 1910.]
    1. Railroads.- — Fences.—Notice.—A notice given by a landowner, under §544S Burns 1908, Acts 1885, p. 224, §2, providing for tbe construction of a new fence, is proper, where the old fence was so out of repair that a new one was needed, p. 097.
    2. Ai>rnAL. — Affirmance,—Penalty.—The Appellate Court may, on affirming a judgment, impose a penalty, p. 698.
    From Dekalb Circuit Court; Emmett A. Bratton, Judge.
    Action by August F. Blum and another against the Vandalia Railroad Company. From a judgment for plaintiffs, defendant appeals.
    
      Affirmed.
    
    
      Anderson, Parker & Crabill, John G. Williams and J. E. & J. H. Rose, for appellant.
   Watson, J.

This is an appeal from a judgment of $141.50, rendered against appellant for the cost of a fence built along a portion of its right of way by an adjoining landowner.

The error relied upon for reversal is the overruling of appellant’s motion for a new trial.

The first point raised is on the admission in evidence of the notice to the railroad company, appellant contending that it was not given according to §5449 Burns 1908, Acts 1885, p. 224, §3, which provides for the repairing of fences along tracks; that the notice to the company, by its agent, should state that the fence is out of repair, where it is out of repair, and the probable cost of fixing it. From the averments of the complaint and the evidence given in said cause it is shown that a fence had been built by the company along its right of way some thirty-ñve or thirty-six years ago, but at the time of the notice, and for a long time prior thereto, there had been practically no fence along such right of way; that it was in,such a condition that a new fence had to be built, instead of repairing the old one. The notice to the company contemplated the building of a new fence, as provided under §5448 Burns 1908, Acts 1885, p. 224, §2. The facts justify the giving of such a notice and the proceedings in accordance therewith. Vandalia R. Co. v. Kanarr (1906), 38 Ind. App. 146.

The evidence sustains the allegations of the complaint, and warrants the conclusions reached by the trial court.

Judgment affirmed, with ten per cent penalty.  