74 Ind. App. 156 | Ind. Ct. App. | 1920
Causes Nos. 10237 and 10361 are both appeals from the same judgment, which was rendered in the Howard Circuit Court, and have been heretofore consolidated under No. 10237. There is a motion for a rehearing on the ruling of the court consolidating the two causes. The motion is overruled . There is no reason why both causes may not foe disposed of in the one opinion. The question is presented as to whether the bill of exceptions containing the evidence is a part
The action was brought by appellants' in cause No. 10237, hereinafter called appellants, against appellees in said cause, hereinafter designated as Lake Erie company and Pennsylvania company, to enjoin them from maintaining an alleged nuisance adjacent to the property of appellants by befouling the air with soot, smoke and dust from said railroad companies’ switch engines at night, with incidental damage to such appellants’ property within six years last preceding the filing of the complaint. There was a complaint in one paragraph, to which each of the railroad 'companies filed'a separate demurrer, which was overruled. Each appellee then filed an answer in five paragraphs, and the cause was put at issue by a reply by each of the appellants, and was thereupon submitted to the court for trial.
The court made special findings of fact, the substance of which is as follows: Appellant Daisy Bennett at the beginning of this action on December 9, 1914, and continuously for six years theretofore, was the owner in fee of certain real estate described in her complaint, and in possession thereof by herself or tenants, and continuously in such ownership ■ and possession until April 25, 1916, when she executed a contract of sale thereof to one Arnold Norris and she has ever since continued to be the owner of such real estate, subject to such contract of sale. The said Norris has since such contract of sale been in the possession of said real estate and has been paying the installments on the purchase price thereof. Appellant Nicholas Deschamps at the beginning of this action and for six years prior thereto had been the owner in fee of the real estate described in the complaint as belonging to him, and has continued to be the owner and in possession thereof, including the residence, business rooms and outbuildings thereon situated.
On these facts the court stated three conclusions of law, to wit: (1) That appellants are not entitled to recover against appellees for the permanent depreciation of the value of the real estate caused by the appellees in the maintenance of their switch engines aforesaid. (2) Appellants are eách entitled to recover from appellees the amount of damage caused to appellants by the injury to the personal property or injury to the rental value of said houses. (3) Appellants are not entitled to an injunction against the maintenance by the appellees of said switch engines upon their said tracks at any point between the north side Of North street in said city and a line running east and west through the north end of the ash pit of the Pennsylvania company lying immediately east of the junction of the tracks of the appellees railroad companies.
Appellants assigned as error the first and third conclusions of law, and appellees as cross-error the second conclusion.
In the complaint there is no charge of negligence in the maintenance and operation of the switching engines, nor is there any charge that their maintenance or operation at night in the manner and place where the same are maintained and operated was unnecessary or unreasonable in the discharge of the duties of appellees to the public. It appears by the special findings of fact that the tracks involved and the use of the switching engines thereon are a part of the necessary and essential operation of the appellees’ railroads as public utilities in the city of Kokomo, which city is a manufacturing and industrial center of rapid growth in the past few years. Appellants’ counsel in oral argument commented at length upon the growth of the city and the increase
Appellants rely upon the ease of Baltimore, etc., R. Co. v. Fifth Baptist Church (1883), 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, but in that case a railroad company had located its engine house and machine shop immediately adjoining a church edifice, which was at the time, and for years theretofore had been, used as a place of worship. It had erected sixteen smoke stacks lower than the windows of the church. The hammering in the shop, the whistles, bells, the cinders and smoke, and offensive odors created a constant disturb
Appellants have cited the case of Louisville, etc., Terminal Co. v. Lellyett, supra, which we have read with interest, and from which we quote as follows: “Tracks were laid in front of the property in controversy, and about 225 feet from it, as early as 1851 or 1852, and the entire traffic and travel of the Nashville, Chattanooga, & St. Louis Railway and Louisville & Nashville Railroad to and from the south passed over these tracks. With the increase of travel and traffic, the cars have been caused to pass more frequently than when the roads first commenced operations, and other tracks have been laid entering into the terminal station, and passing through it, in order to accommodate the increase. When the first tracks were laid, the property now in controversy, as well as that contiguous, was vacant. With the growth of the city this space has been occupied and residences have been erected. Thus both the travel and traffic of the roads, as well as the growth of the locality, have gone hand in hand. We are of the opinion, that, in so far as the growth and increase of travel and traffic into and through the station has brought discomfort to plaintiff, he is without remedy. In other words, the roads have the right to accommodate their increasing traffic and travel without liability, so long as their trains are operated without negligent disregard of the comfort and usable value of the plaintiff’s property, and for this purpose to lay such additional tracks,
Having reached this conclusion, it is unnecessary to consider other questions presented.
The judgment is affirmed as to appellants’ assignment of errors and reversed as to appellee’s assignment of cross-errors, with instructions to the trial court to restate its second conclusion of law in harmony with this opinion, and to render judgment for appellees accordingly. The costs of this appeal are taxed to appellants, and the cost of the appeal in cause No. 10361 are taxed to the appellees, railroad companies.