98 Ind. 153 | Ind. | 1884
The plaintiff demanded $7,000 as damages for the alleged obstruction of an easement. His complaint alleged that Division street was laid out on the plat of the Bank of Indiana’s addition to South Bend, as forty-nine and one-half feet wide along the front of lot No. 70 j that in 1871, the plaintiff became the owner in fee simple of a part of lot No. 70, known as lots 4 and 5, in E. Sorin’» subdivision of lot No. 70, abutting on the south side of said street for the distance of sixteen rods; that in 1865, said
The defendant answered by a general denial and three special defences.
The plaintiff appealed. The only error, relied on for the reversal of the judgment, is the overruling of the demurrer to the second paragraph of the answer. That paragraph is as follows: It admits the laying out of Division street and the location of lot 70, and that in 1865 a church was built thereon, but alleges that the school-house and the dwelling-house were built after the construction of railroad. It admits the making of the railroad on Division street, but denies that it was laid in the center of the street as it was originally, and avers that in 1869 the city of South Bend widened the street by adding thereto sixteen and one-half feet on the north side, and that the railroad was placed in the center of the street thus widened; that its track is nine feet wide, and that none of it is on the south half of the street, and that the plaintiff has no title to any of the ground occupied by it. It admits that the defendant has succeeded to the rights of the Peninsular Railroad Company, which built the road, and avers that the defendant has operated the same since April 6th, 1880, but not without right. It avers that the city of South Bend, by an ordinance passed March 2d, 1868, authorized the said Peninsular Raili’oad Company to build a track in said Division street in front of said lot 70, and that said road was built in pursuance of said ordinance, a copy of which is made an exhibit; that its track was laid so as to cause no obstruction to the use of Division street, and that everything was done which said ordinance required to be done, as well by the said Peninsular Railroad Company as by the defendant since it obtained the road, and that the road has been operated in a careful manner, and as railroads are usually operated; that on April 17th, 1881, the right was acquired, by condemnation from the owners of the land on which said track is located, to build and maintain the track and to operate trains thereon, and that the defend
One who sustains an injury in common with the public, by the obstruction of a highway, can not maintain a private action therefor, but such an action may be maintained for a special injury, different in character from that sustained by the public. Cummins v. City of Seymour, 79 Ind. 491; McCowan v. Whitesides, 31 Ind. 235; Ross v. Thompson, 78 Ind. 90. The foregoing are the general rules, but the an-' swer under consideration presents special matters. It avers that the railroad is not on the plaintiff’s land, but is north of the line to which the plaintiff’s ownership of the fee originally extended and now extends, and that the railroad was built and is operated by authority of and in accordance with an ordinance of the city of South Rend, upon land properly condemned, for that purpose, and that the plaintiff has sustained no injury thereby, different from that sustained by other citizens, except such as are the natural and necessary
The power of municipal corporations over streeis embraces many other uses than those of ordinary travel on public highways. Cummins v. City of Seymour, supra. And this court has said: “ 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.” Cox v. Louisville, etc., R. R. Co., 48 Ind. 178. So, in Indianapolis, etc., R. R. Co. v. State, ex rel., 37 Ind. 489, this court said of the common council of a city: “ They may, it is true, grant an easement in the street to a railroad company to use the street in common with the public’; but they could not make a grant authorizing a railroad company to obstruct or to appropriate to her sole use any public street.”
In Tate v. Ohio, etc., R. R. Co., 7 Ind. 479, Stuart, J., delivering the opinion of this court, said: “ Nor is it intended to intimate that it is not in the power of a city to authorize the railroad.company to lay a track at the grade of William street, and thus use it for the passage of their cars, in common with other public and private conveyances. To that extent the municipal authority may be conceded. * * And though the contiguous property might be depreciated, and ingress and egress at times difficult, yet the owners would not, as in the case at bar, be excluded entirely. For a great part of the time the use of the street would be as free, and the adjoining lots as accessible, as though the railroad were not there. In that case a train of cars would not differ materially in principle from a train of moving wagons. For such incidental injury, there could be no redress, either public or private, unless, indeed, the cars in the one case, or the wagons in the other, delayed unreasonably in passing, to the incumbrance of the street.”
The foregoing statements of the law are in accordance with authority elsewhere. Hamilton v. New York, etc., R. R. Co.,
The answer being sufficient, the judgment ought to be affirmed.
Per Curiam. — It is therefore ordered, on the foregoing ' opinion, that the judgment of the court below be and the same is hereby in all things affirmed, at the costs of the appellant.