ON REHEARING. Appellants insist there is no evidence to show that either Seventh or Eighth streets was in existence when the canal was constructed. The evidence discloses that in 1819, the 12. owners of three adjoining tracts of land laid out and platted the same. These plats indicated the dedication of certain streets and alleys, one of such streets being marked Maple Street and another Mill Street. Maple Street is now known as Seventh Street and Mill Street is known as Eighth Street. These plats were recorded in 1819, and on their face indicate that the land so platted was in the then town of Connersville. The owners of the land so platted, thereafter, but before the canal was constructed, sold a large number of the lots as platted, to divers persons, the deed in each instance making reference to the recorded plat. The evidence does not show to a certainty when the canal was constructed across the streets in question, although the inference might be drawn that it was in the latter part of 1838. On June 27, 1840, Hiram Williams and Mathew Vandergrift wrote a letter to the canal commissioner reciting that they had purchased certain lots in the town of Connersville in 1838, and that part of these lots had been taken by the canal, and asking for the appointment of some one to assess their damages. Damages were awarded them under date of September 29, 1840. On November 10, 1838, Philip Mason filed a claim for damages on *Page 260 account of the taking of his lots between Maple and Mill streets for the location and construction "of the canal now in process of construction through said lots." Other claims for damages were filed in 1840, and one relinquishment of claim for damages was filed on July 24, 1838. The conclusion might be drawn that the canal was in process of construction on November 10, 1838, when Mason filed his claim for damages. It was about this time or a little later that the State stopped construction work on the canal. This case was tried in 1927, and no witness testified as to the condition of the streets in question in 1838, nor is there any evidence as to when the bridges were first constructed over the canal where it crosses these streets.
In 1849, the town of Connersville caused a plat to be made, which showed the several subdivisions and plats of land which had theretofore been recorded. This plat shows the location of the canal across the streets in question and indicates that at that time there was a bridge across the canal on Eighth Street. There is nothing on this plat indicating a bridge at Seventh Street. James M. Heron, who was 70 years old, testified that his earliest recollection was when boats were running on the canal. Thought he was seven or eight years old when the canal company quit business and the railroad constructed, and that when the change was made the bridges were lowered considerably. There used to be high bridges over the canal. Before the railroad took possession, the bridges had stone foundations on each side of the canal and were high enough for the boats to pass under and have plenty of room to ply between the top of the boat and the bridge; was not positive as to whether there were bridges on Seventh and Eighth streets at that time. In order to build the railroad on the tow-path, they had to remove the bridges and put in others. Did not know who made the changes. Alonzo *Page 261 Cooley was born in Connersville in July, 1847. His impression was that there were bridges over the canal on Seventh and Eighth streets before the railroad was built. When the railroad came, the bridges were changed and the ground levelled down. The bridges were eight to ten feet high. The approaches to the bridges came up and resembled a small hill. The old bridges were ordinary lumber bridges. When put back, the bridges were shortened. He was raised between Sixth and Seventh streets, which was about the center of town. He was fourteen or fifteen years old when the bridges were changed.
James Downs was born in January, 1849. He began driving a team on the canal in 1864. His recollection is that there were bridges on Seventh and Eighth streets before the railroad was built. The tow-path was on the east side of the canal and the bridges were high enough for a mule to go under. Supposed that the company that ran the canal changed the bridge. He also said he thought the city made the changes in the bridges, and later said the railroad took the bridges down.
L.L. Broaddus, who was one of the attorneys for appellant railroad, was born in 1856 and remembered the canal when it was in the possession of the canal company. Knew the Eighth Street bridge before the railroad was constructed. The bridges were operated as canal bridges. After railroad came they were shortened at the east end, leaving room to locate railroad on tow-path. After the railroad began to operate, the wooden bridges remained there until they were worn out. The boards came off the sides. His recollection is that the city and county took the bridges back at one time. He had been city attorney and had frequent disputes with the hydraulic company on legal questions. He drafted the contract mentioned in the principal opinion whereby the city undertook to release the hydraulic *Page 262 company from the obligation to maintain the bridges. Eighth Street was in the corporate limits of the town when he was a boy. The records show that Seventh and Eighth streets were opened as streets prior to 1830.
Appellant railroad company, in its answers and cross-complaint, admits that in December, 1865, the White Water Valley Railroad purchased the bridges on Seventh and Eighth streets from the canal company and acquired title thereto so that the bridges could be removed, lowered and shortened and the railroad constructed at grade. It alleges that said original bridges were thereafter abandoned, and that in their place the city constructed and maintained other and newer bridges of concrete and iron. And in this connection it is to be observed that the only bridges constructed by the city, so far as the evidence discloses, are the two which were constructed in 1915, and which are the subject of this action.
It thus appears that in 1865, the canal company as owner of the old bridges on Seventh and Eighth streets sold and conveyed them to the railroad company; that the latter company, acting upon the assumption that the canal company had the right to sell them and that it became the owners of such bridges, took possession of them, lowered and shortened them, and rebuilt them across the canal. The canal company and the railroad, at that time, were certainly advised as to who owned these bridges. These bridges had theretofore been used as "canal bridges," and the assertion of ownership by the canal company and by the railroad company is sufficient to sustain a finding that those companies at that time understood they were under an obligation to maintain the same as property formerly owned by the canal company. *Page 263
It seems clear to us that the evidence is ample to sustain a finding that Seventh and Eighth streets were opened and used as existing highways when the canal was constructed, and that the canal company and the railroad company, by their acts, so recognized them, as well as their liability to maintain them.
The court, at the close of the evidence, instructed the jury to return a verdict for the plaintiff. Ordinarily this would have amounted to reversible error. But not so in the 13, 14. instant case. At the close of the evidence, the hydraulic company and the railroad company each tendered an instruction asking that the court instruct the jury to return a verdict for each of them. These requests were denied and the plaintiff filed its request asking that the court instruct the jury to return a verdict in its favor. This request was granted and the jury was so instructed. The parties, by so requesting the giving of the binding instructions, put the question as to the right of the plaintiff to recover up to the court, and was equivalent to withdrawing the case from the jury. The court so interpreted the acts of the parties, but instead of dismissing the jury and making a finding of its own, the court instructed the jury to return a verdict for the plaintiff. This the court had a right to do, and its action in that matter was not error. See Continental Casualty Co. v. Klinge (1924),82 Ind. App. 277, 144 N.E. 246; Goings v. Davis, Director (1923), 82 Ind. App. 231, 141 N.E. 473.
Rehearing denied. *Page 264