Indiana, Illinois & Iowa Railway Co. v. Rinehart

Concurring Opinion.

Davis, J.

The stipulation in the instrument of appropriation on this question is that the company “will put in such bridges and tile drains as are sufficient to give proper drainage across the right of way.” There is no stipulation that the company will put in such bridges or tile drains as may be necessary for the drain*594age of the lands adjacent to the right of way, or that said drains shall he sufficient for the use of said owners.

Filed March 12, 1896.

There being no express stipulation for such bridges and tile drains for the use of the owners or drainage of adjacent lands, and there being no sufficient bridges and tile drains in fact constructed, the jury had the right to consider the absence or insufficiency of such bridges and tile drains in the assessment of damages.

I therefore concur in the affirmance of the judgment of the trial court, but whether such stipulation, if made, can be enforced by mandate, it is not necessary to determine.