54 Ind. App. 438 | Ind. | 1913
Appellants own and operate a street railway in the city of Muncie, Indiana, under and by virtue of a contract and franchise granted by said city. One of the tracks of appellants is located longitudinally in Kilgore Avenue, one of the public streets of Muncie, and is used in the transportation of electric street cars and also for the transportation of electric interurban ears. In March, 1908, the city of Muncie by its proper officers originated proceedings for the establishment and construction of a general sewer in such city, and such steps were thereafter taken as resulted
No question is raised as to the validity or regularity of the proceedings leading up to the assessment, but it is claimed on behalf of appellants that the property and rights of the street and interurban railway located in the street are not such property as is subject under the statutes of this State to a local assessment for the construction of a sewer. The legislature has provided for the location, establishment and construction of sewers by cities and has also conferred upon the city power to make special assessments against the lots and parcels of land located within the territory benefited, for the purpose of paying the costs and expenses incident thereto. The statute also expressly authorizes an assessment against the city on account of the benefits accruing to its streets, alleys, and public grounds. The property of appellants against which the special assessment in question was made consists of the right, license, privilege or franchise granted by the city of Muncie to lay and maintain their
These cases are based upon the proposition that the use to which public streets are subjected by the construction and operation of such railways is not different in character and extent from that which was contemplated at the time of the dedication or condemnation of such streets. If this is true, it must follow that companies owning and operating such railways in the streets do not hold any easement or interest in the land upon which the tracks are located. The statute provides that an assessment may be made against the city, and if made it would cover all benefits accruing to the easement of the public in the streets. The right of a street railway company to maintain its tracks and to operate its cars in the street under the permission granted by the city is a part of such public easement. If the railway company
In view of the conclusion we have reached in this ease, a new trial would be of no benefit to appellees. The judgment is therefore reversed with directions to the trial court to restate its conclusions of law in accordance with this opinion and to render judgment thereon in favor of appellants.
Note.—Reported in 102 N. E. 453. See, also, under (1) 28 Cyc. 1102; (2) 28 Cyc. 1118-1120; (3) 36 Cyc. 1103. As to'whether street railways are additional servitude, see 106 Am. St. 232. As to what property is liable for assessment for construction of drains and sewers, see 26 L. R. A. (N. S.) 973. As to whether a street railway is an additional burden in a street, >sec 17 L. R. A. 477; 36 L. R. A. (N. S.) 709. As to the assessment of a railroad right of way for a street improvement, sae 2 Ann. Cas. 587; 12 Ann. Cas. 635.