48 Ind. 178 | Ind. | 1874
Lead Opinion
This was an action commenced by the appellant against the appellee. On demurrer to the complaint, there was judgment for the defendant, the court holding that the complaint was not sufficient, because it did not state facts sufficient to constitute a cause of action. From this judgment the plaintiff appealed to this court, and he has assigned as error the sustaining of the. demurrer to his complaint. It is alleged in the complaint that the plaintiff is now, and has been
Plaintiff further says that said defendant is a railroad com- ■ pany organized under the laws of the State of Indiana; that heretofore, to wit, in the year 1853, the New Albany and Salem Railroad Company, which was a railroad company organized under the laws of the State of Indiana, without authority of law, without right, and without first causing damages to be assessed and tendered the plaintiff, and without his consent, entered upon and laid her track upon that portion of said Fifth street above described, of the fee simple of which the plaintiff was then, and has ever since been, and is now, the owner; and the said New Albany and Salem Railroad Company, and her successor, to wit, the Louisville, New Albany, and Chicago Railroad Company, the defendant, have, ever since such entering upon and appropriation of said Fifth street, continued the use of the same in the operation of their railroad, in propelling cars and engines over and upon the same ; and the defendant is now using, and threatens to continue the use of the same for that purpose. Plaintiff says that said appropriation of said portion of said Fifth street, and the said use of it as aforesaid, have been to his great detriment and to the damage of his said property in a large sum, to wit, in the sum of twenty thousand dollars.
Prayer for judgment for twenty thousand dollars damages, and that the defendant may be perpetually enjoined from the use of said portion of Fifth street by her track and the run
On account of the importance of the questions involved, and because there are other cases pending in this court in which the same points, or some of them, arise, this case has been briefed with more than the usual care and ability. Besides the briefs which are filed in this case, we have had the benefit of the arguments of counsel in the other cases to which we have referred.
The first question is as to the right or interest which the abutting owner has in the street in front of his lot. Counsel for the appellant contend that the fee simple of the street to its center, subject to the public easement, is in the abutting owner, while counsel for the appellee insist that the fee simple is in the public, while the abutting owner has but an easement in the street.
It is submitted by counsel for the appellee that the question is governed and settled by the statute relating to the laying out of towns, and making and recording plats thereof. The statutes on this subject in the various revisions, including that of 1818, have been substantially the same. Revised Laws of 1824, p. 412; Revised Laws of 1831, p. 530; Revised Statutes of 1838, p. 595; Revised Statutes of 1843, p. 384; and 1G. &H. 632. The sections of the statute of 1818, which is the one that was probably in force at the making of the plat, which are supposed to bear on the question, are as follows:
“ Sec. 1. Be it enacted, etc., that any person or persons, his, her, or their legal representatives, who may hereafter lay off any town within this State, shall, previous to the sale of any lots in such town, cause to be recorded in the recorder’s office of the county wherein the same may lie or be laid off, a correct copy of the plat of said town, with the public grounds (if any there be), streets, lanes, and alleys, with their respective widths properly marked, and the lots regularly numbered, in numerical order, and the size of the lots marked, by reference to the plat of said town.
“ Sec. 2. Every donation or granLto the public, or any indi
Conceding that the proprietor of the town complied with this law in every respect, that he made the plat and caused it to be recorded, indicating the location of the street and its width, and writing upon it its name or number, what was the effect or operation upon his ownership of the fee simple estate which he had in the land over which the street runs? It is not very clear that the second section of the statute has any reference to streets, lanes, and alleys, but we will concede that it has, and that streets, lanes, and alleys are among the “ donations or grants” mentioned in the section. What is a street? and what is to be understood by the donation or grant of a street ? A street is a highway. Conner v. The President, etc., 1 Blackf. 43, 88; West v. Blake, 4 Blackf. 234; The State v. Mathis, 21 Ind. 277; The Common Council, etc., v. Croas, 7 Ind. 9. In the last named case, Gookins, J., says: “ No doubt a street or alley in a town is a highway. * * * Every street is a highway, but every highway is not a street.” Bouvier, in his Law Dictionary, defines a street as “a public thoroughfare or highway in a city or village,” and cites 4 S. &R. 106; 11 Barb. 390.
The grant of a street or highway over one’s land is but the grant of an incorporeal hereditament. By its very terms, it signifies that the party to whom the grant is made acquires an easement in the land, and nothing more. Bouvier says:
“ A street, besides its use as a highway for travel, may be used for the accommodation of drains, sewers, aqueducts, water and gas-pipes, lines of telegraph, and for other purposes conducive to the general police, sanitary, and business interests of a city.” Diet, title Street.
In some of the states, as in Iowa, for instance, the statute
Had our statute such a provision in it, its construction would necessarily be different. The part of sec. 2 of our act, declaring that the making or noting of a donation or grant shall be considered “ a general warranty,” does not enlarge the grant. It simply means that the plat Shall be construed as a general warranty of what is thereby granted. Where a donation or grant is made, by an appropriate mark or note on the plat, of a lot or square, there, as the fee of the property is intended, there is no difficulty in holding that such an estate passes. The City of Logansport v. Dunn, 8 Ind. 378. Nothing else would satisfy the evident intention of the parties. There is nothing to limit'the donation or grant, as there is where only a street, lane, or alley is granted, which signifies merely the grant of a use or easement. It is probable that if a proprietor of a town should state on the plat that the. ground over which the streets pass should be granted to or vest in the public in fee simple, such an interest, in that case, would pass. But a mere designation of the streets as such, or as public highways, can not, by any proper construction, be held to pass the fee simple. By the second section of the act set out above, the plat operates as a general warranty, “ for the' purposes intended by the donor or donors, grantor or grantors aforesaid.” It certainly can not be held that a donation or grant of a street or an alloy, which means merely a right of passage, etc., can be construed as a conveyance of the fee simple. On this part of the case the ruling in Conner v. The President, etc., of New Albany, 1 Blackf. 43, which we have already cited, is exactly in point. The question was as to the interest which passed in the streets by the making and recording of the plat, under a statufie similar to that of 1818. Holman, J., said:
“ It appears, therefore, very clearly, that the complainants have shown no property to which they have any title, on the
This case has never been doubted, qualified, or overruled, but, on the contrary, has been cited and approved in other oases. Haynes v. Thomas, 7 Ind. 38: Williams v. Wiley, 16 Ind. 362; The State v. Mathis, supra. The rule is stated with exceeding force and perspicuity, and meets with our entire concurrence and approval.
The case of Smith v. The City Council of Rome, 19 Ga. 89, is upon this point, and, by reference to English cases, shows that the same rule prevails in England. See, also, Perley v. Chcmdler, 6 Mass. 453.
The unsupported remark of the judge in The New Albany, etc., R. R. Co. v. O’Daily, 13 Ind. 353, to the effect that the fee simple of the street would seem to be in the public, is not an authority on the point.
We conclude, then, that by the making and recording of a town plat, under our statute on that subject, the designation of streets, lanes, and alleys on the plat gives to the public only an easement therein for such uses as the public has a right to make of them, and that the fee simple remains in the proprie
The next question is, what interest or estate does the abutting owner acquire in the street by the purchase, from the proprietor, of a lot fronting on the street? Haying arrived at the conclusion that the fee simple in the streets, etc., continues in the proprietor, notwithstanding the making and recording of the plat, does it still remain in him after he has conveyed his title in the adjoining lots, or does it pass to those to whom the abutting lots are conveyed by him? In those states where the legislature has enacted, or the courts decided, that the making and recording of the plat passes the fee to the public, this question can not arise, since, if the fee passes by the act of dedication to the public, the proprietor can not ■afterward convey it to the purchasers of lots. This question is left in some uncertainty by the decisions of this court. In The Common Council, etc., v. Croas, 7 Ind. 9, it was held that the laying out of an addition to a town, recording the plat, and selling lots with reference to the adjoining streets and alleys, gave to the proprietors of those lots a private right distinct from the claim of the public, which even the legislature could not take away unless to appropriate to a public use, and several authorities are cited in support of the rule.
The learned judge who delivered the opinion does not attempt, however, to define the nature of the “ private right distinct from the claim of the public,” which the purchasers of -the lots acquire. It is something, however, distinct from the claim of the public to use the streets and alleys as public highways. The purchaser of a lot could acquire no private right in the mere easement which belonged to the general public, and we infer, therefore, that the reference must have been to the fee simple.
In Haynes v. Thomas, 7 Ind. 38, the same learned judge says: “ The right to use a street in a town adjoining a lot abutting upon it, is as much property as the lot itself, and the legislature has as little power to take away one as the other. Whether the act of dedication transfers the fee from the donor
In Tate v. The Ohio, etc., R. R. Co., 7 Ind. 479, the court approves'of the last named case, and in speaking of the right' of the lot-owner in the street, the learned judge who delivered the opinion speaks of it as “ his easement in the street.” Now, as the street itself is but an easement, when an easement in the street is' mentioned no additional light is thrown upon the question, but rather obscurity.
In Kimball v. The City of Kenosha, 4 Wis. 321, the existence of any private right of way in the street in favor of an abutting owner, distinct from and independent of the public right of way, is expressly denied.
In Protzman v. The Indianapolis, etc., R. R. Co., 9 Ind. 467, it was said: “ In Haynes v. Thomas, 7 Ind. 38, it is decided that the right of the owner of a town lot abutting upon a street, to use the street, is as much property as the lot itself; that it is appurtenant to the lot, and is protected by the constitution. It can not be taken away without compensation. The lot, and street adjoining, then, as to the owner of the former, would seem to constitute but one piece of property, and. an injury to the latter would seem to be an injury to the former— to the whole property.” This case puts the estate of the lot-owner in the street on somewhat more satisfactory ground. The lot and the street " would seem to constitute but one piece of property.”
In The New Albany, etc., R. R. Co. v. O’Daily, supra, the learned judge who wrote the opinion in the last named case uses this language: “ The fee simple in the streets of towns and cities in Indiana, would seem, during the existence of the corporation, to be in the public. At all events, this court has decided that taking a street is not 'taking an interest in land* of the adjoining proprietor.” In this decision, if this mere remark can be regarded as such, the court seems to have lost sight of that interest in the street held by the lot-owner,.
In Vaughn v. Stuzaker, 16 Ind. 338, the doctrine is stated to be, that the owner of the land is the owner of the fee simple, notwithstanding he has granted a right of way or street over the soil owned by him, and that his deed to another passes such interest in the street.
In Massachusetts, the rule is, that the title of the owner of land abutting on a highway must be presumed to extend to the center of the highway; that where a deed is made for such real estate, with no restriction or controlling words, the title to the middle of the highway passes; and this was held with reference to the ownership of the soil over which a street ran. City of Boston v. Richardson; 13 Allen, 146, and cases cited.
In New York, the same rule prevails. In Adams v. Rivers, 11 Barb. 390, where the plaintiff owned lots on the street, it was held that he owned to the center of the street. The court, referring to some of the authorities in that state, treated the rule as well settled, that, subject to the right of mere passage, “ the owner of the soil is still absolute master.”
Such is the rule in New Hampshire, also. Rowe v. Addison, 34 N. H. 306; The Proprietors of Claremont v. Carlton, 2 N. H. 360.
In Vermont, the question is held to be one of intent, but the presumption is, that the parties intended to include the highway to its center, and the burden of proof is upon the party who assumes it, to show the contrary intention. Buck v. Squiers, 22 Vt. 484.
In Wisconsin, it is the settled doctrine that the proprietors of lots bounded by a public street, within a recorded town plat or village, take to the center of the street, and own the soil subject to the public easement. Kimball v. The City of Kenosha, 4 Wis. 321; Goodall v. The City of Milwaukee, 5
The City of Dubuque v. Maloney, 9 Iowa, 450, is a very instructive and satisfactory authority on this point. The city of Dubuque was laid out by authority of an act of Congress. It is decided that if lots are sold by their number on a plat, and if the lots are bounded by a street or highway, that circumstance raises a strong presumption of an intent to pass the soil to the center of the street or highway, and it will pass accordingly, unless the highway be clearly excluded. We refer particularly to the authorities cited in the able opinion in this case. Banks v. Ogden, 2 Wal. 57, may be cited to the same point; also, Smith’s Leading Cases, vol. 2, 142, et seq.; 3 Washb. Real Property, 3d ed., p. 361, and note; White v. Godfrey, 97 Mass. 472.
Without citing or examining other authorities, we think it may be laid down that the established inference of law is, that a conveyance of land bounded on a highway carries with it the fee to the center of the road, as part and parcel of the ■grant, unless such inference shall be expressly excluded, and that this rule is applicable where the land conveyed is a lot or part of a lot in a town or city, designated on the plat by its number, or ascertained by its appropriate description, and abutting on a public street, lane, or alley.
We are next to consider the question, whether the construction of a railroad on and along a street, on which locomotives and trains of cars are used, is a new use or appropriation of the soil so as to entitle the owner to damages therefor.
The following cases in this court hold that an abutting owner has a right of action for an unlawful appropriation of the street, in front of his property, to his injury: Haynes v. Thomas, supra ; Tate v. The Ohio, etc., R. R. Co., supra; Hutton v. The Indiana Central R. W. Co., 7 Ind 522; Protzman v. The Indianapolis, etc., R. R. Co., supra ; The Indiana Central
Judge Dilloj-t, Municipal Corp., vol. 2, p. 657, says: “ If the fee in the streets or highways is in the public, or in the municipality in trust for public use, and is not in the abutter, the doctrine seems to be settled that the legislature may authorize them to be used by a railroad company in the construction of its road, without compensation to adjoining owners, or to the municipality, and without the consent, and even against the wishes, of either. But where the public have only an easement in the street or highway, it has been generally, but not always, held that against the proprietor of the soil the use of the street or highway, for the purpose of a steam railroad, is. an additional burden, which, under the constitution of the different states, can not be imposed by the legislature without compensation to such proprietor for the new servitude.” In case the proprietor has dedicated the highway, it was for the ordinary uses to which streets are applied; and if it was. obtained by the payment of damages, his damages may be supposed to have been assessed with no other view. It has been
It is scarcely necessary to say that the construction and operation of a steam railway along a public street, whether it be a business street or one devoted to private residences, must generally be a cause of great injury and damage to the owners of abutting lots.
In Williams v. The New York Cen.R. R. Co, 16 N. Y. 97, it was decided that the dedication of land to the use of the public as a highway does not preclude the owner of the fee, subject to the public easement, from maintaining an action against a railroad company, which, without his consent or an appraisal of his damages, enters upon and occupies such highway with the track of its road.
Such an appropriation of the highway by the railroad com
So far as the highway, street, or easement is concerned, as the municipality has complete control thereof, it may, we presume, make or authorize any use of the street which will not essentially change and divert it from its intended use as a public highway.
The municipality is the conservator of the public easement, and has no-power to destroy or unnecessarily to limit or obstruct its use by those for whom it was designed or intended.
But this power of the city over the right which is vested in, and intended for the use of, the public cannot upon any fair construction, or with any reference to the proper conservation of the rights of individuals, extend to or affect the rights of the owner of the fee in the soil over which the highway or street passes. This right of the individual, according to the case of Rrotzman v. The Indianapolis, etc., R.R. Go., supra, “ is as much
Judge Redfield, in speaking of the gradual shifting of ground in some of the courts on this subject, and with reference to the question whether or not the same rule applies to street railroads and to steam railroads, says : “ The explanation of the singular vacillation of the courts upon the subject of railways being located on the highways, and whether the owner of the fee was thereby entitled to additional compensation, seems to arise in the following manner. At the first it was so common to designate steam railways as only an improved highway, that the courts, almost universally in this country, held the owner of the fee entitled to no additional compensation by reason of such railways being laid upon the highway, cither across or along their route. But this view, upon more careful consideration, being found untenable, the retrocession of the courts from their former false assumption naturally gave them an unnatural impulse in the opposite direction, by which the conclusion was arrived at, that all railways must equally be an additional burden upon the fee. Whether the proper distinction between street railways and those occupying a distinct route and transacting mainly a distinct business will ever be clearly defined, is perhaps questionable.” 1 Redfield Railways, 313.
We conclude, on this point, that the appropriation of the soil over which a street passes, the abutting proprietor owning the fee to the center of the street, is a new or additional appropriation, which entitles the abutting owner to such damages as he may sustain thereby.
The next consideration is as to the remedy of the abutting owner, where the soil of the highway or street passing over his land is appropriated to, and occupied for, a use not falling within the easement granted to the public. We are justified by the authorities, we think, in the statement, that he has all
Kent says: “ Being owners of the soil they have all right, to all ordinary remedies for the freehold. They may maintain an action of ejectment for encroachments upon the road,, or an assize, if disseized of it, or trespass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road, and left there for shade or ornament.” 3 Kent Com. 432. That trespass quare clausum fregit lies, see Peck v. Smith, 1 Conn. 103.
The decisions of this court heretofore made, which hold that the abutting owner has no such interest in the soil of the street as may be condemned and appropriated, under the exercise of the right of eminent domain, should, as a necessary consequence, be regarded as overruled by this decision. Such decisions were founded in an incorrect notion of the estate-in the soil which was held by the abutting owner.
The owner of the property sought to be taken cannot be compelled to resort to any proceeding to secure the compensation to which he is entitled, except, perhaps, when the property is taken by the State for its own use, and hence it cannot be held that where the statute gives him a remedy for the value of his property, the company can compel him to resort to that remedy. He has a right to avail himself of the constitutional protection, and require the party- or corporation seeking to appropriate his property to have the damages assessed and paid or tendered to him; and we think the rule is as applicable to cases like the present as to any other. The Indianapolis, etc., R. W. Co. v. Brower, 12 Ind. 374.
The owner of the land may proceed to have his compensation assessed, when the company has taken or signified its intention to do so, where the statute authorizes him to do so ; but he cannot be compelled to initiate the proceeding. Marion, etc., R. R. Co. v. Ward, 9 Ind. 123.
As the company cannot take the land until the compensation has been paid or tendered, it is necessarily implied that the company must have the assessment made, for otherwise it cannot be known what amount is to be paid or tendered. Hence, it is held, that if a railroad corporation enters into possession of land of an individual for the use of the road, without his consent, and without first having had the damages assessed and tendered, he may maintain an action to recover the possession of the land. Graham v. The Columbus, etc., R. W. Co., 27 Ind. 260; Graham v. The Connersville, etc., R. R. Co., 36 Ind. 463.
And hence it seems, also, that an injunction may be granted to restrain the company from taking possession of and permanently appropriating the land until the compensation has been assessed and tendered. The Lafayette Plankroad Co. v. The
In the last named case, it was well said, by Erazer, J., in .announcing the opinion of the court: “ The case is not one where a new right is created, and a particular remedy provided to secure it. The right to have damages assessed was not intended as an exclusive remedy for the taking of property without previous compensation. • It is very inadequate to the purpose in many cases. It is well adapted to cases where the owner chooses to waive prior compensation,, and is content to believe that the damages assessed will be paid when ascertained, or is content with such final process as the law -gives ior the collection of a judgment for money. It is his right to make this waiver. But the constitution cannot be satisfied with such action of the courts as will allow his property, against his will, to be first taken, and himself turned over to such vexatious litigation to obtain compensation as he may meet afterward. There must be superadded, in order to make the remedy at all efficient, an injunction to stay the taking until 'the damages shall be paid. But this is not provided for by statute. It is an appeal to the extraordinary power of the ■court exercising equity jurisdiction.-”
While this is held to be the law, it should be stated, that where the act sought to be enjoined is a mere trespass which may be compensated in damages by an action brought for that purpose, an injunction will not be granted. Lewis v. Rough, 26 Ind. 393; The Indianapolis, etc., Co. v. The City of Indianapolis, 29 Ind. 245.
The case of The New Albany, etc., R. R. Co. v. O’Daily, supra, like several other cases decided about the same time, proceeded on the ground that the abutting owner had no estate in the soil under the street; but according to the later decisions, and the views expressed in this opinion, we cannot think it was correctly decided, so far as it held that the injunction was improperly granted by the circuit court.
We are not prepared to hold that, under the circumstances disclosed in the complaint in this case, there was any error in. refusing the injunctive relief which is asked in the complaint, had that been the only relief sought.
There is no allegation that the company claims the right to continue to occupy and use the plaintiff’s soil. We think, however, that the complaint states a good cause of action for the damage which the plaintiff has sustained. For what length of time the plaintiff can go back in making such claim for damages, we need not decide—perhaps not beyond the statutory period of limitation for actions to recover for injuries to property. 2 G. & H. 156, sec. 210, third division.
We do not think the statute of limitations a bar to all the. plaintiff’s cause of action. Angelí Lim., secs. 300, 307. In the fii’st section cited, it is said: “ Every continuance of that which was originally a nuisance the law considers a now nuisance, and, therefore, though the party complaining cannot in an action on the case, recover upon the original cause-of action, after the expiration of six years, he may for its continuance any time before the right of entry is barred as above mentioned, and recover not only nominal damages, but such actual damage as has accrued any time within six years.”
The judgment is reversed,. with costs, and the cause-remanded, with instructions to overrule the demurrer to the complaint.
Concurrence Opinion
I do not concur in this opinion. I do not think a man takes a fee simple in land not covered by and