Evansville & Grawfordsville Railroad v. Dick, 9 Ind. 433

Evansville & Grawfordsville Railroad v. Dick

9 Ind. 433 | Ind. | 1857

Davison J.

Dick, the appellee, was the ‘plaintiff, and the railroad company, the defendant.

The case made by the record is as follows: Plaintiff was the owner, and in the possession of real estate in Knox county, on the banks of White river, below the place where defendant’s railroad crosses that stream. The land is separated from the railroad, from which it is distant about one-half mile, by the lands of one William Decker. During *?floods in the river, a large portion of its waters were accustomed to flow across a narrow neck of bottom land, opposite the lands of the plaintiff, and through a bayou which enters the river a short distance below his lands. The railroad, in approaching the river, passes through the bottom land. And defendants, in constructing it, raised a large and heavy embankment across the bayou and a portion of the bottom, thereby greatly increasing the force and current of the stream at its high stages, and forcing the waters on the plaintiff’s land. It was proved that, by reason of the embankment being constructed through the bottom, and across the bayou, the lands of the plaintiff, and Ms crops growing thereon, were, during the floods in the winter and spring of 1854 and 1855, greatly damaged, &c.

Defendant’s answer contains three paragraphs: 1. A general denial of the complaint. 2. That the embankment was erected by the company, by virtue of her acts of incorporation, in a proper and prudent manner. 3. That defendant had properly constructed the embankment, under her charter, more than two years before this action’ was commenced.

To the second and third paragraphs, demurrers were sustained. And upon the issue made by the general denial, there was a verdict for the plaintiff. Defendant moved for a new trial; but her motion was overruled, and judgment given on the verdict.

The act, by virtue of which the company is incorporated, says that all lands entered upon for materials or the roadway, which are not donated to, or owned by the company, shall be purchased by them of the owners. And in case of a disagreement as to price, the agent of the company may apply to some justice of the peace, to have six freeholders summoned to assess the damages, &c. Local Laws of 1849, pp. 275, 276. To this, there is an amendatory act, which provides that, in ease any land owner shall feel aggrieved by the location or construction of such road over his land, or for entering thereon, and tailing materials for the construction thereof, and the company have failed to *435have his damages assessed, as provided for by their charter, such landholder may file his complaint before some .justice of the peace, at any time within two years from the survey and location of the road, &c. Local Laws, 1851, p. 420.

In view of these provisions, it must be conceded that the special remedy which they provide, does not apply to the case before us; because the railroad was not located over plaintiff’s land, his property has not been appropriated to the use of the defendant, nor does he complain of an entry upon his lands for materials or roadway. The damages which he has sustained could not, therefore, have been assessed by a justice calling six freeholders. Hence, we are led to inquire whether the plaintiff has any remedy for the injury of which he complains. Defendants contend, “that no suit can be maintained for the recovery of damages caused by a work authorized by law, and constructed in a proper place and manner, when the law authorizing the work neither gives such damages, nor authorizes such suit.” This doctrine might apply to the case at bar, were the defendants mere trustees, incorporated for the sole purpose of executing a public trust or duty. Having acted fairly and honorably within their jurisdiction, and they, themselves, having no private interest to subserve, they would not be responsible' for a consequential injury, resulting from such acts. But, in this instance, the party sued is a private corporation. True, the public benefit may be so far promoted by works authorized to be made by such corporations, that the property of individuals, taken by them by virtue of their charters, may be deemed to be taken for public use, within the constitutional provision on that subject; still, they exercise their corporate privileges under a private grant of the legislature, conferring upoii them specific powers for their own direct and private advantage.. And the defendants, in this case, being thus a private corporation, there seems to be no reason why they should not, in respect to responsibility for injuries for which their, charier' allows no remedy, stand on the same ground as individuals, not clothed with corporate privileges.. So far as the interest of the company is concerned, the embank*436ment may be erected “in a proper manner and place,” and still be constructed in such a manner as necessarily to injure the plaintiff. And for aught that appears in the record, the road might have been built and completed so as to' obviate the injury of which he complains. The well known maxim of the law, sic utere tuo ut alienmn non Icedas, must, therefore, be applied to the decision of this case. Otherwise, we concede the doctrine that a private corporation may, in the erection of a work from which they themselves derive the profit, injure the property of an individual, and are to be protected in doing such injury, without making compensation. This result does not accord with any principle of justice. But this Court has, in effect, decided the question under consideration. In Tate v. The Ohio and Mississippi Railroad Co., the defendant had raised an embankment along the street, in front of plaintiff’s lot. No part of the lot was appropriated, or directly affected by the construction of the road; but his easement in the street was materially obstructed. The suit was not upon a claim for land taken under the company’s charter, but for the recovery of damages resulting from the obstruction, and for the payment of which the charter made no provision. Held, that the plaintiff was entitled to recover. 7 Ind. R. 479.

Suppose the act of incorporation to which we have referred, expressly authorized the injury in question, without at the same time providing means of relief and indemnification, would the act, so far as it conflicted with the plaintiff’s rights, be operative? The constitution (art. 1, s. 21) says, “ No man’s property shall be taken by law, without just compensation.” As we are advised, a proper construction of the word “taken” makes it synonymous with seized, injured, destroyed, deprived of. It is, therefore, evident that the legislature have no power to authorize, in any case, either a direct or consequential injury to private property, without compensation to the owner. If, then, such a grant, when expressly made, would be in conflict with the constitution, we are not allowed to infer that such an authority was intended to be granted, from the mere *437fact that a railroad was authorized. It seems to follow that the defendants having voluntarily, and for their own profit, so constructed their road as necessarily to injure the plaintiff, there being no remedy given by their charter, are liable in the present action.

S. Judah and J. P. Usher, for the appellants (1). R. Crawford, for the appellee (2).

Hooker v. The New Haven and Northampton Company, 14 Conn. R. 153, goes the full length of this case. There, the act complained of was a lawful act. It was done with prudence and care, and the injury to the plaintiff was consequential. Still, the company was subjected. See, also, 15 Conn. R. 312; 2 Johns. Ch. 162; and 4 Eng. L. & Eq. R. 265. This conclusion, we are aware, is in conflict with at least one adjudicated case. Hatch v. The Vermont Central Railroad Co., 1 Am. Railroad Cases, 170. Still the plaintiff’s right of action is, in our opinion, fully sustained, both upon principle and the weight of authority.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.