No. 13,736 | Ind. | Feb 28, 1890
The appellant seeks by his complaint the abatement of a nuisance by the removal of a railroad track
The trial court admitted evidence tending to prove that the appellant consented to the occupancy of the street, and assisted in making the fill upon. which the track was laid. This evidence was clearly competent. An abutting owner who expressly consents to the occupancy of a street can not afterwards ask a court to' enjoin the use of the street or award him damages. Wolfe v. Covington, etc., R. R. Co., 15 B. Mon. 404; Marble v. Whitney, 28 N.Y. 297" court="NY" date_filed="1863-09-05" href="https://app.midpage.ai/document/marble-v--whitney-3591607?utm_source=webapp" opinion_id="3591607">28 N. Y. 297; Murdock v. Prospect Park, etc., R. R. Co., 10 Hun, 598. In Marble v. Whitney, supra, the court, in speaking of the consent of the plaintiff to a change in a highway, said: “ The plaintiff’s consent was not a license which he could revoke after the alteration was made. Commissioners of highways may act upon the parol consent of the owner in laying out or altering a highway across his lands; and although such consent may be revoked, it must be done before the road is laid out .or the alteration made. If the commissioners act immediately on the faith of the virtual consent, by laying out the road or making the alteration, he will be estopped from denying the legality of the act. In People v. Goodwin, 1 Seld. 568, it was held that a parol consent was sufficient, and if not revoked before the commissionefs acted on the faith of it was irrevocable.” •
The liability of the appellee, the city of Lawrenceburgh, depends upon different rules from those upon which the liability of the railroad company depends, and we shall first dispose of the branch of the case involving the liability of the city.
We have no doubt that an abutting owner has a proprietary right in the street of which he can not be deprived without compensation. State v. Berdetta, 73 Ind. 185" court="Ind." date_filed="1880-11-15" href="https://app.midpage.ai/document/state-v-berdetta-7043946?utm_source=webapp" opinion_id="7043946">73 Ind. 185, and cases cited ; Ross v. Thompson, 78 Ind. 90" court="Ind." date_filed="1881-11-15" href="https://app.midpage.ai/document/ross-v-thompson-7044577?utm_source=webapp" opinion_id="7044577">78 Ind. 90 ; City of Indianapolis v. Kingsbury, 101 Ind. 200" court="Ind." date_filed="1884-12-30" href="https://app.midpage.ai/document/city-of-indianapolis-v-kingsbury-7047757?utm_source=webapp" opinion_id="7047757">101 Ind. 200; Town of Rensselaer v. Leopold, 106 Ind. 29" court="Ind." date_filed="1886-03-25" href="https://app.midpage.ai/document/town-of-rensselaer-v-leopold-7048285?utm_source=webapp" opinion_id="7048285">106 Ind. 29. But it by no means follows from this
It is true that whore the grade of a street is changed the abutter is entitled to such damages as he sustains. City of Lafayette v. Wortman, 107 Ind. 404" court="Ind." date_filed="1886-09-21" href="https://app.midpage.ai/document/city-of-lafayette-v-wortman-7048492?utm_source=webapp" opinion_id="7048492">107 Ind. 404. But while this is true it is also true that where there are no damages there can be no recovery. There can be no recovery where there are • no substantial damages shown, for the right to recover damages is purely statutory, since at common law there was no such right, and it is clear that it is only where actual damages are sustained that an action will lie. City of Kokomo v. Mahan, 100 Ind. 242; City of Anderson v. Bain, 120 Ind. 254" court="Ind." date_filed="1889-10-08" href="https://app.midpage.ai/document/city-of-anderson-v-bain-7049987?utm_source=webapp" opinion_id="7049987">120 Ind. 254. Where there are no damages there can, it is quite clear, be.no recovery under the statute, and the right is exclusively statutory.
It is found by the jury in answer to the interrogatories submitted to them, that the property of the plaintiff was not injured, and their answers we must infer were adopted and acted upon by the court, so that there is, clearly enough, no case made against the city.
It is incumbent upon a property-owner who seeks to recover damages for the construction of a railroad track in a street, to show that the additional burden caused injury to his property. Indiana, etc., R. W. Co. v. Eberle, 110 Ind.
There is a distinction between an action for taking a street for the use of a railroad and an action to recover damages for the negligent and wrongful operation of the road, but until there has been negligence or wrong in operating the road no action to recover such damages will lie.
In one of the interrogatories submitted to the jury they were asked whether the plaintiff knew that the grade was being raised in front of his property, and whether he advised that it be done, and whether he assisted in making the fill, and the jury answered “ Yes, he did.” It is evident from what has already been said that the fact thus found effectually defeats a recovery.
We have examined the evidence, and think it well sustains the finding and judgment. We have done this notwithstanding the fact that we are strongly inclined to the.opinion that the appellees are correct in asserting that the bill of exceptions is not properly in the record.
Judgment affirmed.