62 Ind. App. 519 | Ind. Ct. App. | 1916
The question for consideration in this cause is one purely of law arising upon the sustaining of a demurrer to the second amended complaint, hereafter styled the complaint, and which in substance alleges: That appellee city of Kokomo is a municipal corporation organized under the laws of the State of Indiana, and that the appellee Kokomo, Marion & Western Traction Company is a corporation .engaged in the general passenger traffic, owning a line of street railway within the city of Kokomo and especially upon Sycamore street in said city; that in the years of 1909 and 1910 it also operated a line of interurban railway from the city of Kokomo to the city of Marion and continued to operate such line until December 7, 1912, when appellee Kokomo, Marion & Western Traction Company and the Kokomo Public Utility Company consolidated under the name of the Indiana Railway & Light Company, the latter acquiring all of the property and assets of the former and assuming all liabilities thereon, including the claim of appellants; that for more than ten years prior to the commencement of the action, appellants were the owners of certain real estate in the city of Kokomo, which abuts upon said street, and. upon that part of Sycamore street where appellants’ property abuts and for a long distance east and west thereof; that appellee Kokomo, Marion & Western Traction Company owned and controlled a line of railway in the middle of the street, and operated the same for several years prior to December 7, 1912, and since the last mentioned date' the same has been operated by appellee Indiana Railway & Light Company; that continuously for more than twenty-
Appellants’ main reliance for reversal of the judgment is that there is enough in the complaint, by proper averments, to disclose that the ingress and egress to appellants’ property was greatly impaired from which they suffered damages for the sole benefit of the appellee traction company, and not for the benefit of the public; that, without the lowering of the grade of the street, it served the purpose well as a public thoroughfare, and that the lowering of the grade in the manner alleged amounts to the taking of property without due compensation within the meaning of the Constitution of the State; and the fact that it was done under an ordinance, and by contract between the city and appellee traction company, can not relieve appellees from answering to the damages alleged to have been sustained by appellants.
On the 'other hand, the objections urged by appellees to the complaint are numerous, but which in an abbreviated form are: That the complaint fails to disclose by proper averment that the lowering of the grade of the street was; not a part of the
This is not a suit seeking equitable relief by
Note. — Reported iu 113 N. E. 391. Change of grade of street, rights of abutting property owner as to damages, 14 L. R. A. 371; 15 Cyo 662, 676. Use of street, additional burden, 17 L. R. A. 477; 4 L. R. A. (N. S.) 202; 36 L. R. A. (N. S.) 698; 40 L. R. A. (N. S.) 254. See under (5), (6) 15 Cyc 664.