132 Ind. 558 | Ind. | 1892
— This was an action brought by the appellee against the appellant, the city of Fort Wayne, to enjoin the latter from opening a street across the yard and tracks of the appellee situated within the limits of the city. The material facts in the case, as they appear in the special findings of the court, are, that in the year 1866, the city of Fort Wayne acquired a tract of land in fee simple,by purchase and deed,, contiguous to the city for the purpose of a public park. The deed to the city contained no limitation nor conditions as to the purpose for which the land was purchased or was to be used, nor did it contain any restrictions as to the power of the city to convey the same. On the 23d day of March, 1869, and before any steps had been taken to convert the ground into a public park, the common council of the city adopted a resolution by the terms of which it granted to the Fort Wayne, Jackson and Saginaw Railroad Company twenty acres of the land off of the west side of the tract, upon the condition that the railroad company should run its line through the tract so granted, and locate its depots for local
The donation of this land was made for the purpose of inducing the railroad company to make the city of Fort Wayne its southern terminus, and to induce it to locate its depots for local purposes and its shops thereon. Prior to February, 1871, the railroad company accepted the donation on the terms and conditions expressed in its resolution, took possession of the land and constructed its road-bed through the same, put in side tracks and switches, and erected a depot building thereon on the faith of the resolution, and located its yards on the ground for making up its trains, storing cars and conducting its business as a passenger and freight railroad, and prior to the 12th day of March, 1872, had expended in so doing several thousand dollars. On the 12th day of March, 1872, the common council of the city passed a resolution directing the mayor of the city to execute to the railroad company a deed for the land, which he accordingly did on the 26th day of the same month.
At the time the first resolution above referred to was adopted, one Edgerton was a member of the common council of the city of Fort wayne, and he was at the same time vice-president of the railroad company.
The common council consisted of sixteen members, nine of whom voted for the resolution and seven against it, Edgerton voting for the resolution; but when the last resolution, directing the mayor ■ to execute the conveyance was
By a proceeding instituted for that purpose, regular on its face, the city of Fort Wayne, by its common council, has ordered an extension of Fourth street in said city, so as to cross the yard and tracks of the appellants about two hundred and fifty feet from the south end of the yard. In this proceeding the property was treated as belonging to the city of Fort Wayne, and for this reason neither the appellee nor the railroad companies from which it derives its title were made parties to the proceeding or given any notice thereof in any manner whatever. At the point where 'Fourth street, if extended, will cross the appellee’s yard it has six tracks used for storing cars, weighing cars, making up trains, etc., and by opening Fourth street as proposed it will prevent the weighing of cars, and will render the south end of .the yard useless for the purposes for which it was constructed. On an average one hundred and forty cars are handled each day on these tracks, one-half of which belongs to the Fort Wayne, Cincinnati and Louisville Railroad Company, which
Upon these facts the court stated as a conclusion of law that the appellee was entitled to a permanent injunction enjoining the city of Fort Wayne from extending Fourth street across its yard and tracks at the point described in the complaint.
The correctness of this conclusion, is questioned by the assignment of error upon this appeal.
It is contended by the appellant that the conclusion of law stated by the court is erroneous, for the reasons :
First. That the city of Fort Wayne had no power to donate or convey the land in question for the purpose of a railroad because it was purchased to be used by the people as a public park.
Second. Because Edgerton, who voted for the donation as a member of the common council, was, at the time of so voting, vice-president of the railroad company, and that the-donation was for that reason void.
The general rule is that municipal corporations possess the incidental or implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or statute. 2 Dillon Municipal Corporation (3d ed.), p. 569; Shannon v. O’Boyle, 51 Ind. 565; 1 Washb. R. P. (3d ed.) 64; Reynolds v. Commissioner, etc., 5 Ohio, 204; Beach v. Haynes, 12 Vt. 15; Jamison v. Fopiana, 43 Mo. 565; Board, etc., v. Patterson, 56 Ill. 111; Platter v. Board, etc., 103 Ind. 360; Newbold v. Glenn, 67 Md. 489.
Municipal corporations can not dispose of property of a public nature in violation of the trusts upon which it is held nor of a public common; but there is a distinction between property purchased for a public common and not yet dedicated, and property which is purchased for that purpose and actually dedicated to that use.
The case of Beach v. Haynes, supra, is very much in point here. In that case land had been purchased for a public common, and it was so expressed in the deed of conveyance,, but before it was actually dedicated to that use it was conveyed away by the town of Westford, in which was vested the fee simple title, and it was held that such conveyance vested in the grantee a good title. But in the later case of State v. Woodward, 23 Vt. 92, it was held that a municipal corporation could not convey away a public common after it had been actually dedicated to the public use. Of course, the deed which vests title in the municipality may be of such a character as to dedicate the property to the public use, but such is not the case here. The deed to the city of Fort Wayne for the land in controversy vested in it the fee simple title without limitation or restriction as to its alienation. Such being the case, we think the city had the power to convey it for private use at any time before it was dedicated as
We recognize the doctrine announced in the case of City of Fort Wayne v. Rosenthal, 75 Ind. 156, as sound, but in that case Rosenthal made a contract with himself, while here the contract was not between Edgerton and the city, but between the city and the railroad company. If that contract depended upon the vote of Edgerton, and there had been no further action taken by the city council, we would have a question quite different' from the one here presented, for in this case it appears by the findings of the court that a sufficient number of councilmen voted for the resolution granting the land to the railroad company to pass it without counting the vote of Edgerton, while the deed of conveyance was executed pursuant to a resolution passed by the common council at a time when he was not a member. Treating the first resolution as voidable on account of Edgerton’s connection with its adoption, we think the subsequent action of the common council fully ratified it.
The adoption of these resolutions was not a judicial act, but was legislative or ministerial. Platter v. Board, etc., supra.
We are unable to perceive how the reservation of the right to cross the tracks of the railroad company in the event the city of Fort Wayne should lay off an addition, can have a controlling influence in this case, for it does not appear that the city has laid out any addition.
The general rule is that a reservation in a deed can not be extended beyond its terms, and the right of the city to cross the railroad track is, by the terms of the reservation, limited to the time when the city shall elect to lay out an addition composed of the remainder of the land held by it under its purchase for a public park. Nicholson v. Caress, 45 Ind. 479; 2 Dev. Deeds, section 979; Jackson v. Hudson, 3 Johns. 375 (3 Am. Dec. 500).
The question as to whether the city of Fort Wayne un
While the construction of a street or other public highway across a railroad track is generally attended with some
But even this rule, which allows the construction of streets and other public highways across railroad tracks, has its limitations.
They can not be so constructed where by so doing the railroad would be unable to use its tracks at the point of the crossing for the purposes for which they were constructed. In other words, the crossing must occur at a point where the use of the highway or street will not deprive the railroad of the use of its tracks. Thus in the case of Little Miami, etc., R. R. Co. v. City of Dayton, supra, it was said by the Supreme Court of Ohio : “ But where land is appropriated, pursuant to legislative authority, to an important public use, a subsequent grant can not be held to authorize the same land to be taken for a use wholly inconsistent with, and which, in the actual circumstances, must necessarily supersede the former use, unless such appear, by express words, or by necessary implication, to be the legislative intent.”
To the same effect is Albany, etc., R. R. Co. v. Brownell, supra. In each of these cases there was an attempt to construct highways across the railroad tracks of the companies involved in the controversy.
It appears by the special findings in the case now under consideration that the extension of Fourth street across the tracks and yards of the appellee will prevent the weighing of freight at that point, and will render the south end of the yard useless for purposes for which it was constructed; that it will greatly discommode and diminish the business, and its yard and station grounds, and impair the value of its property and franchise, and that it will be dangerous to life and limb for the public to travel over the street when so extended by reason of the number of tracks and the use to which they are necessarily put.
In view of these facts we are constrained to hold, under
Our attention has not been called to any such statute, and we know of none.
There are some other questions in the case of minor importance, but as we have reached the conclusion that the city of Fort Wayne is without power to make the crossing in dispute, they need not be noticed.
We are of the opinion that there is no error in the record for which the judgment should be reversed.
Judgment affirmed.