169 Ind. 563 | Ind. | 1907
Lead Opinion
Appellant, as plaintiff below, on July 28, .4903, commenced this action against appellees, the Union
It is further alleged that the track of said Union Traction Company is laid with heavy “T*’ rails, weighing from seventy to ninety pounds per yard, the same being fully as heavy as the rails of the ordinary steam railroad, and of the same pattern and shape; that the tracks on College avenue, are of the same kind and size, and the rails thereof were especially laid of this kind and weight in order that the large cars of said interurban companies might be run thereon; that the ears of said Union Traction Company and its successors are, and ever since its operation have been, about sixty feet in length, weigh about sixty-four thousand pounds, and are placed upon
It is further alleged that freight-trains consisting of three ears have been run by said traction company over said College avenue every day, at various times during the day; that said traction company charges a graduated scale of prices according to the distance traveled, except that in the city of Indianapolis, for such local passengers as may be able to obtain passage on its cars, a straight cash fare of five cents is charged, without any right of transfer; that said traction company and its successors do not operate a street railway in said city of Indianapolis and have never so operated; that its cars and railroad system are not intended to accommodate the local traffic within the city, but its road, system and cars are constructed for,and intended to accommodate travelers to and from points beyond the city; that such road, as constructed and operated, is and always has been a commercial road; that the road outside of the city of Indianapolis is not built upon the highway, but is constructed upon a separate right of way purchased by the Union Traction Company, and runs for the greater part of its line parallel with and adjacent to the right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway
It is further alleged that the use of said street by these interurban cars greatly interferes with and prevents the comfortable enjoyment by plaintiff of her said home, and causes continual annoyance, alarm and danger; that it has damaged her said real estate and diminished the value thereof $1,000; that the Indiana Union Traction Company as
As we view the complaint, its principal theory is for damages arising out of the alleged wrongs of appellees; the
The rule is well settled that a complaint which at least states one complete and sufficient cause of action will repel a demurrer addressed to the entire pleading. If there is one complete right of action shown under the facts alleged, the plaintiff must of necessity be entitled to some recovery, and if so entitled her complaint cannot be said to be deficient on demurrer. Therefore, if, under the facts alleged by appellant in her complaint, she is entitled to a part of the relief which she demands, the pleading, under the rule to which we have referred, is sufficient on demurrer, and will serve to present for review upon its merits the question involved in this action. Owens v. Lewis (1874), 46 Ind. 488, 15 Am. Rep. 295; Douglass v. Blankenship (1875), 50 Ind. 160; Bonnell v. Allen (1876), 53 Ind. 130; Bayless v. Glenn (1880), 72 Ind. 5; Baddeley v. Patterson (1881), 78 Ind. 157; Bennett v. Gaddis (1881), 79 Ind. 347; Decker v. Gilbert (1881), 80 Ind. 107; Boyd v. Olvey (1882), 82 Ind. 294; Binford v. Johnston (1882), 82 Ind. 426, 42 Am. Rep. 508. It follows that appellees’ verified answer to the assignment of errors is not sufficient to bar appellant from fur
Counsel for appellant argue that the interurban railroad involved in this appeal is clearly shown, by the facts explicitly alleged in the complaint in regard to'its character, mode and methods of operation, not to be a street railroad, but a commercial railroad, engaged in the transportation of passengers and freight between the city of Indianapolis and the cities and towns mentioned in the complaint; that the location and operation of this road over and upon the public street upon which appellant’s property abuts, creates and imposes a new or additional servitude or burden, and, therefore, under the facts, she is entitled to invoke the protection of §21, article 1, of the Constitution of this State, which declares that “no man’s property shall be taken by law without .just compensation; nor, except in case of the State, without such compensation first assessed and tendered, ’ ’ and also to the protection of the 14th amendment to the federal Constitution, which prohibits the state from depriving any person of property without due process of law. The well-settled and unqualified rule in this State is that the owner of land abutting upon a public street or highway owns the land in fee to the center of the street, burdened only by the easement' of the public thereon. This right or ownership of the abutter is, in the strictest sense, under the rule affirmed in this State, recognized as property, of which such abutting owner cannot be deprived without just compensation. City of LaFayette v. Nagle (1888), 113 Ind. 425, and authorities cited; Terre Haute, etc., R. Co. v. Scott (1881), 74 Ind. 29; Terre Haute, etc., R. Co. v. Rodel (1883), 89 Ind. 128, 46 Am. Rep. 164; Board, etc., v. Indianapolis Nat. Gas Co. (1893), 134 Ind. 209.
The abutting owner, in addition to his fee simple title, has, distinct from the public in general, special interests or rights in the street or highway lying in front of his prem
The cardinal question, however, with which we have to deal in this case, is real and practical. It is one to be determined, not upon any mere theory or fiction, nor upon the imaginary railway which counsel for appellees apparently have constructed in their argument, but upon the facts alleged in the complaint. Reduced to a simple proposition, it is: Does the railroad of appellees create or constitute a new or additional burden or servitude upon the street in question to that of the public easement therein? Or, in other words, is the location and operation of this railroad along and upon the street upon, which appellant’s property abuts such a new use or appropriation of land as will, in the absence of her consent, or condemnation proceedings, entitle her to sue for and recover damages which she has sustained? It is the settled law in this State that a “steam railroad,” which at the present date is regarded by the courts and text-writers as a “commercial railroad,” in distinction of a street railway, more especially for the reason that it carries both passengers and freight between towns and cities within or without the State, is, when operated over and along the public streets of a town or city, an additional burden or servitude upon such streets. Terre Haute, etc., R. Co. v. Scott, supra; Terre Haute, etc., R. Co. v. Rodel, supra; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264.
These well-established propositions are conceded by counsel for the respective parties herein, and are in accord with the great weight of authority. Originally, many of the higher courts of sister states, influenced by the view as then entertained, that a steam railroad was nothing more than an improved highway, held that it did not constitute an additional servitude when run over and upon the public streets and highways. This holding, however, after further and more careful consideration, was found to be untenable, and thereupon these courts, for a while at least, appear to have adhered to the opposite and extreme view, and held that all railroads must equally be regarded as an additional burden upon the fee of the abutting owner. It was.at last, with much doubt, dissents and conflicting opinions, that the courts of this country yielded, and gave sanction to the doctrine that an urban or street railroad, propelled by animal power, was not a new and additional burden on the streets of a city. In fact this court, in Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, was not unanimous in the view that the location and operation of a street railroad upon public streets was not an additional burden upon the fee of the owner. The question arises, how is the line of demarcation to be drawn between urban or street railroads, which do not constitute an additional servitude, and those which do?
In Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222, this court, by Dowling, J., said: “The dedication of a street must be presumed to have been made, not for such purposes and usages only as were known to the landowner and platter at the time of such dedication, but for all public purposes,
Let us ascertain, in the light of the authorities, the character and purpose of an urban or street railroad, which, as they declare, does not constitute a new or additional servitude upon public streets over which such road is operated. The authorities upon this question are in substantial harmony in holding that it is not the use of any particular motive power which distinguishes a street railway from a general traffic- or commercial railroad. Prom among the many authorities we cite the following: Williams v. City Electric St. R. Co. (1890), 41 Fed. 556; Louisville, etc., R. Co. v. Louisville City R. Co. (1865), 63 Ky. 175; Carli v. Stillwater St. R., etc., Co. (1881), 28 Minn. 373, 10 N. W. 205, 41 Am. Rep. 290, 3 Am. and Eng. R. Cas. 229; Funk v. St. Paul City R. Co. (1895), 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. 608; Chicago, etc., R. Co. v. Milwaukee, etc., Electric R. Co. (1897), 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. 137; Zehren v. Milwaukee Electric R., etc., Co. (1898), 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. 844; Schaaf v. Cleveland, etc., R. Co. (1902), 66 Ohio St. 215, 64 N. E. 145; Rische v. Texas Trans. Co. (1901), 27 Tex. Civ. App. 33, 66 S. W. 324; Hanna v. Metropolitan St. R. Co. (1899), 81 Mo. App. 78; Malott v. Collinsville, etc., Electric R. Co. (1901), 108 Fed. 313, 47 C. C. A. 345; Grand Rapids, etc., R. Co. v. Heisel (1878), 38 Mich. 62, 31 Am. Rep. 306; Chicago, etc., R. Co. v. West Chicago St. R. Co. (1895), 156 Ill. 255, 40 N. E. 1008, 29 L. R. A. 485; White v. Northwestern, etc., R. Co. (1893), 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 37 Am. St. 639; Eichels v. Evansville St. R. Co. (1881), 78 Ind. 261, 41 Am. Rep. 561; Harvey v. Aurora, etc., R. Co. (1898), 174 Ill. 295, 51 N. E. 163; Hartshorn v. Illinois Valley Traction Co. (1904), 210 Ill. 609, 71 N. E. 612; South, etc., R. Co. v. Highland Ave., etc., R. Co. (1898),
The reasons in the main which courts have advanced in differentiating between the ordinary street railway and what is known as a commercial railroad, and in sustaining their holding that an urban or street railroad does not constitute an added burden upon the streets of a city, are that these latter railroads in their inception were purely urban institutions, intended to facilitate travel by carrying passengers and their ordinary hand luggage from one point within the city to another, and, so far from constituting a new or additional burden, they relieved the streets of the congestion of foot passengers on the sidewalks and of vehicles upon the roadway. They were regarded as the carriages of the masses, and, in a strict sense, á convenience for the people residing or sojourning within the city. They were subject to the reasonable regulation of the municipal authorities, and their use or operation was recognized by the courts as but an improved method of using the streets and, therefore, the burden imposed by them was the same in kind as was originally contemplated or imposed when the streets were opened to public use. They were considered as affording a convenience and serving an advantage to the abutting owner, by providing for him an easy transportation from
In our own State the development of interurban railways and the increase in their mileage in the last few years have far surpassed the expectations of their original promoters and organizers. During the year 1907, in addressing the State Board of Tax Commissioners, a prominent promoter of these roads said: “The interurban business has grown beyond expectations. We did not expect to have stations to sell tickets or to have freight houses, but competition with the steam lines brought them and the business has grown and will continue to grow. In fact I do not think we are yet in the beginning of it.” It necessarily must be apparent to all persons, who realize and recognize
An examination of the statutes of the State bearing upon these interurban roads justifies us in- asserting that the legislature apparently has recognized that they were designed to be commercial roads. The general powers conferred by §5195 Burns 1908, §3903 R. S. 1881, upon companies or corporations operating commercial roads appear to have been substantially duplicated and granted by the legislature in 1903 to companies or corporations operating interurban railroads (Acts 1903, p. 92, §1, §5675 Burns 1908). (1) Both companies are given power to cause preliminary sur
These powers and rights serve to indicate the dissimilarity between an interurban railroad and the one which is known and recognized as the urban or street railroad, which, as
We may properly examine some of the authorities in order to discover what distinction is made between railroads which belong to the commercial class and are open to a general traffic, and which in the main are held to constitute a new use or additional burden upon the public streets and highways, and the street railroad which is used, as heretofore shown, for city purposes, and therefore is considered in line with the use for which the street was originally dedicated or appropriated. In Magee v. Overshiner (1898), 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358, this court, in considering the well-recognized right of an abutting owner, said: “The owner of the fee in a street which has been dedicated or condemned for a street is entitled to restrict its uses to such as are proper street uses, as stated by most of the decisions, to the uses contemplated at the dedication or condemnation; the public have only an easement for the proper uses of a street. When applied to new uses the fee owner is entitled to compensation. When a use is by proper public authority, and is not an additional burden upon the fee, no compensation is due the fee owner. In the use of the public easement there is no right unreasonably to burden the fee to the special injury and damage of the fee owner. ’ ’
In Eichels v. Evansville St. R. Co., supra, in considering the difference between railroads propelled by steam and
As the authorities in general affirm, the motive power of the road is not a distinguishing feature between a street railway and the ordinary commercial railroad. In 1 Elliott, Railroads (2d ed.), §6, it is said: “A street railway has been defined as ‘a railway laid down upon roads or streets for the purpose of carrying passengers.’ The distinctive feature or characteristic of such a railway, considered in relation to ordinary commercial railroads, is that it is intended and used for the transportation of passengers and not of freight. This, and the character of the use of the street, rather than the motive power, distinguish it from the ordinary commercial railroad; and such a railway, laid in a street for the purpose of carrying passengers and facilitating its use by the public, is a street railway, no matter what motive power may be used to propel the cars.” The same author further says: “Railroads operated by electricity and engaged in carrying passengers along the streets of a city are classed with street railways rather than with ordinary commercial roads. Their use being the furtherance of travel upon the streets, may be said to be within
In Williams v. City Electric St. R. Co., supra, the court, in its opinion, said: ‘ ‘ The difference between street railroads and railroads for general traffic is well understood. The difference consists in their use, and not in their motive power. A railroad # * # which runs at a moderate rate of speed, compared to the speed of traffic railroad, which carries no freight, but only passengers, from one part of a thickly populated district to another, in a town or city and its suburbs, and for that purpose runs its cars at short intervals, stopping at the street crossings to receive and disJ charge its passengers, is a street railroad, whether the cars are propelled by animal or mechanical power. The propelling power of such a road may be animal, steam, electricity, cable, fireless engines, or compressed air; all of which motors have been, and are now, in use for the purpose of propelling street-ears. ’ ’
In Louisville, etc., R. Co. v. Louisville City R. Co., supra, the court said: “A railroad is for the use of the universal public in the transportation of all persons, baggage, and freight—a street railway is dedicated to a more limited use of a local public for the more transient transportation of persons only within the limits of the city. ’ ’
In Carli v. Stillwater St. R., etc., Co., supra, the construction and maintenance upon a public street of the city of Stillwater, Minnesota, of a railroad operated by animal power for the purpose of transferring freight-cars from one line of railroad to that of another running into said city,
In Funk v. St. Paul City R. Co., supra, the court, in distinguishing between commercial railroads and street railways, said: “Nor do street railways carry freight. * * * They get their business from the street, usually in populous cities, where passenger travel is the only business carried on. Street-cars do not usually run beyond the city limits. * * * ‘The distinctive and essential feature of a street railroad, considered in relation to other railroads, is that it is a railroad for the transportation of passengers and not of freight.’ ”
In Chicago, etc., R. Co. v. Milwaukee, etc., Electric R. Co., supra, the question as virtually presented in the case at bar received a full and careful consideration in many of its phases. In that case it was held that an electric railway upon a village street, which formed a part of the connecting line between' cities for transporting merchandise, personal baggage, mail and express matter, as well as passengers, constituted an additional servitude upon the lands of abutting
In South Bound R. Co. v. Burton, supra, the court affirmed that “the operation of a railroad running to distant points is not a street purpose. It is not ordinarily used to transfer either freight or passengers from one part of the city to another and has no direct connection with the city’s internal traffic or travel, which are distinctive uses of its streets. ’ ’
Rische v. Texas Trans. Co., supra, was an action to enjoin the operation of what was claimed to be a street railway which was transporting freight over the streets of San Antonio. Electricity was the motive power of this road. It appeared that access to the plaintiff’s premises was made inconvenient. The cars upon the road made a great noise, jarred and shook his house, and ran so fast that it endangered the lives of his family. The court in that case held that the plaintiff was entitled to damages. In passing upon the question the court said: “If the railway in question can be classed as a street railway in contradistinction to a commercial railway, then, under the general doctrine of the
In Hanna v. Metropolitan St. R. Co., supra, the railroad company operated an electric railway between Kansas City and Independence. The question in that appeal was whether the road in controversy must be considered and regarded as a steam railroad, and thereby required to fence its right of way under the general statute of that state pertaining to ordinary railroads. It was held that the railroad was subject to the burdens of an ordinary railroad, and was not entitled to the privileges of a street railway. The court, in that case, held that the road was required to erect and maintain fences upon its right of way, as required by the general statute. In the course of the opinion it is said: “A street railroad has been variously defined. As the name indicates, the primary meaning of street railway, or street railroad, is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs. It is peculiarly an institution for the accommodation of people in cities or towns; its tracks are ordinarily laid to conform to street grades; its cars run at short intervals, stopping at street crossings to take on and discharge passengers, and its business is confined top the carriage of passengers and not freight. Booth, Street Railway Law, 1; Elliott, Roads and Sts., 557; Williams v. City Electric St. R. Co. [1890], 41 Fed. 556; Funk v. St. Paul City R. Co.
In Schaaf v. Cleveland, etc., R. Co., supra, the supreme court of Ohio had under consideration a case in which the •question was involved as to whether an interurban electric railway, laid with “T” rails entirely on the side of a public highway, the company operating such road having authority to run an unlimited number of cars and trains for the transportation of passengers, freight, express and government mail, was an -additional servitude upon such highway. It was held that it was; the court asserting in the course of its opinion that, “all things considered, it is reasonably certain from the facts found, that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiff’s property, in the same sense. ’ ’
In Wilder v. Aurora, etc., Traction Co., supra, an electric railroad forming a part of an interurban system, which was authorized to carry freight as well as passengers, baggage, mail and express matter, is held to be a commercial railroad, and to constitute an additional burden on the fee of a public street in said city of Aurora, Illinois. This road was intended to be a part of a railroad system extending from the intersection of North river and Walnut streets, the entire length of Walnut street, to the western limits of the city of Aurora, and there connect with the tracks of the Aurora, etc., Traction Company, thereby forming a continuous electric railroad to the city of Rockford by way of the city of Dekalb. The court in that case, in passing upon the question whether the road involved was a street railroad or a commercial railroad, said, on page 527: “If the road so to be constructed be regarded as merely a street railroad, it
That an electric railway to be operated between two cities in different states and to carry passengers and freight is not' a street railroad, but a commercial or trunk railroad, is declared and held in Diebold v. Kentucky Traction Co., supra.
Many more quotations from the decisions of the courts and the works of the text-writers, in addition to the above, might be given to show that a street railroad is one of a local character as contradistinguished from a commercial railroad, but to do so would unnecessarily extend this opinion.
Keeping in view the principles asserted by the authorities to which we have referred, we may next inquire, in the light of facts and the law applicable thereto, what is the character of the road or roads with which we have to deal in this appeal, and into what class are they placed under the facts as alleged in the complaint. Briefly summing up the facts, we have here presented a traction company with a thirty-year franchise to run passenger-, baggage-, express- and freight-trains. There are no limits to the size of its cars or trains; no limit to the number of trains, nor the rate of speed at which they may be propelled. Tracks laid with “T” rails as heavy and of the same pattern and shape as
Certainly these facts show that there is a wide difference between the railway here involved and what the many authorities which we have cited recognize and regard as an urban or street railway. The fundamental purpose of the road here involved appears not to be to accommodate or sub-serve the travel upon the streets of the city of Indianapolis, but, on the contrary, it is shown to be a thoroughfare between the latter city and other cities or points for the distance of many miles beyond. In its purposes, uses, equipments and mode of operation it is materially different from the urban or street 'railroad, except that it employs electricity as a motive power. It is shown frequently to run passenger-trains composed of three large cars, and to run daily freight-trains of a like number of heavy ears. It is neither a street railroad in fact, nor is it shown to be operated for street railroad purposes. Further to emphasize, we have, under the facts, a railroad which in no sense is operated to promote the utility of the public streets of the city of Indianapolis. It is not merely engaged in doing business between the latter city and its suburbs. It is not an extension of a city street railway over intervening territory between neighboring cities or towns, carrying passengers and light freight, but it is absolutely an independent railway, engaged in a general passenger and freight traffic between distant cities and communities. Its ears are not light and small when compared with those of the ordinary steam roads. • As a result of its operation some of the usual discomforts due to the operation of the ordinary steam roads are present, viz., loud noises, dirt and dust,
We have examined the cases cited by counsel for appellees. Many of these apply to street railways and deal with
It is further said in that appeal that “cheap transportation of passengers, light express and mail matter between neighboring towns and cities may be quite as necessary and as largely conducive to the general welfare of the places so connected and their inhabitants as the like convenience within the town or city. Where such transportation is furnished by an interurban electric railroad operated under the conditions and restrictions contained in the agreement between the appellee and the city of Ft. Wayne, we do not think the construction and operation of such a railroad in such a manner constitutes an additional servitude upon the street which entitles abutting property owners to compensation. ’ ’ It will be observed that the court in that ease tied its holding or conclusion down to the facts, conditions and restrictions contained in the agreement between the city and the railroad company.
When this latter case is considered in the light of the facts upon which the court based its holding, it is manifest that there is a radical difference or distinction between it
Appellant, having sold and transferred her property, therefore the question as -to her right, under the facts, to be awarded injunctive relief is not considered, but in passing we may say that, in sustaining her right under the facts to recover damages, we do not mean, in addition thereto, to hold that she has the right to exclude appellees from thé use, in operating their roads under the franchises granted by the city, of the public street upon which appellant’s property abuts.
Concurrence Opinion
concurring in this opinion, we hold that under the facts alleged and the law applicable thereto, as expressed in the foregoing opinion, the complaint herein states a right of action for damages on the grounds: (1) That the operation of appellees’ roads constitutes an additional burden or servitude ■ upon the public street in ques
I am of opinion that plaintiff states in her complaint facts sufficient to entitle her to recover special damages, but I am unable to agree that the operation of interurban cars, within the scope of the charter rights of the company, on the tracks and with the permission of the local street railroad company and the city authorities, is such a new and additional servitude to the plaintiff’s land underlying College avenue as will entitle her to recover compensation therefor.
The far-reaching importance of the question involved constrains me to state some reasons for the conclusion I have reached.
Town of New Castle v. Lake Erie, etc., R. Co. (1900), 155 Ind. 18, 23. The State, for convenience, apportions its highways among the various political divisions of the state government—that is to say, to counties, townships, cities, and towns—for construction, care and maintenance, but it has assiduously reserved to itself the right to supervise the use, management, and control of such ways, whether urban or rural.
The power of collecting revenues for the construction and maintenance of highways, for making permanent improvements of both streets and country roads, is not only conferred on the above-named governmental agents, but the mode and manner in which such power shall be exercised is specifically pointed out by legislative decree, and must be closely followed. Elliott, Roads and Sts. (2d ed.), §545, and eases collated; Town of New Castle v. Lake Erie, etc., R. Co., supra. Any obstruction or invasion of the integrity of the highway, rendering it unsafe or inconvenient for public use, is an offense against the State, and not the municipality. §2043 Burns 1901, §1964 R. S. 1881. Erecting a stable in
The public nature and legislative control of streets and other highways is clearly stated by Mr. Dillon in the following language: “Public streets, squares, and commons, unless there be some special restriction, when the same are dedicated or acquired are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits
Another fundamental principle: It is the law of this State that a general grant of a highway to the public, whether set apart by dedication or condemnation, unless otherwise expressly provided, carries with it nothing more than an easement of the right to use the land in the manner and for purposes consistent with a public highway. Cox v. Louisville, etc., R. Co. (1874), 48 Ind. 178; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264. The fee in the soil over which the highway runs remains in the dedicator, or in him from whom the easement has been appropriated, and the conveyance of a lot abutting on a city street, thus acquired, carries with it the fee in the soil to the center of the street. Board, etc., v. Indianapolis Nat. Gas Co. (1893), 134 Ind. 209; Coburn v. New Tel. Co. (1901), 156 Ind. 90, 52 L. R. A. 671. It follows that the plaintiff, being the owner in fee of a lot abutting on College avenue, in the city of Indianapolis, is also the absolute owner in fee of the soil to the center of the street, subject only to such servitude as is imposed upon it by the appropriate uses of an urban'public highway. It is, therefore, perfectly clear that neither a
The plaintiff must bear all the annoyances and inconveniences incident to a proper use of the street, and has no ground of complaint until the roadway in front of her property is subjected to a use unwarranted by the dedication. What, then, were the uses contemplated by the dedication? Generally speaking, travel and transportation. It will not do to coniine them to the modes and usages known to the owner at the time of the dedication. The grant was to the public then present, and to come, and impliedly for any efficient mode or means, not materially detrimental to the abutters, that might thereafter become necessary to the free and convenient use by the public for purposes of travel, traffic and communication. Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222; Coburn v. New Tel. Co., supra; Magee v. Overshiner (1898), 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358. Any reasonable means or modes that promote or facilitate these ultimate ends are consistent with the dedication. As we said in the case of Coburn v. New Tel. Co., supra: “In sparsely settled towns and cities public necessity requires but little of the servient owner beyond the right of unobstructed passage over the street, but as cities become populous and towns crowded with traveling foot
It is settled in this, and most other states of the Union, that the use of telephones and street-cars, being in aid of the public easement, is a proper use of the street, and not an additional burden upon the fee in the soil underlying it. Mordhurst v. Ft. Wayne, etc., Traction Co., supra, and cases cited.
AVhat, then, constitutes an interurban railroad, such as is authorized to occupy the streets of Indianapolis, and wherein does it differ from the ordinary commercial railroad authorized in 1853, and the street railroad authorized in 1861 ? The character of the legislation upon the subject, which we will briefly notice, will furnish us the most reliable answer.
It is enough to say of the ordinary railroad that it came when the population was diffused, transportation difficult and slow, and it generally contemplated large enterprises, great distances, a carriage of all kinds of freight, expensive power, and long, heavy and infrequent trains, the track to be laid upon its own independent grade with ele-, vated rails, and upon private property, and not on the streets and highways, save in exceptional cases for the convenience of urban population.
The original design of the street railroad was the antithesis of the steam railroad. It was to lay its tracks in the streets and highways, to be operated by the running of single cars at brief intervals and frequent stops, thereby constituting a new and useful mode of using the highway for convenient passage. Let us see how the General Assembly has indicated this purpose.
In the first place, the legislature of 1861 deemed it necessary to pass another and different act from that of 1853, to authorize the operation of railroads in streets and highways. The act of 1861 (Acts 1861, p. 75), was entitled “An act to provide for the incorporation of street railroad companies, ’ ’
As an evidence that the legislature did not mean to confine the street railroad to municipal limits, in 1865 (Acts 1865, p. 63) an act was passed giving to such companies the right to extend their street-car tracks beyond the corporation limits, on any state or county road, by consent of the county commissioners. This act was amended in 1879 (Acts 1879 [s. s.], p. 175), so as to give the right to build an independent street railroad outside of any city, on any public highway, to which the county commissioners would yield their consent.
In anticipation that freight-ears might become necessary, or at least a proper means of conveying property through the streets of our large cities, it was enacted in 1891 (Acts 1891, p. 337, §59, §3830 Burns 3901) that in cities of more than one hundred thousand the board of public works, with the consent of the common council, might purchase or erect street-car or other lines for the conveyance of passengers and freight.
In 1899 (Acts 1899, p. 408) an act was passed requiring all street-car companies, organized under the incorporation act of 1861, and operating a railroad in any city of more than one hundred thousand inhabitants (Indianapolis), to permit the use of its tracks by any incorporated passenger interurban railroad company to some central part of the city, to receive and discharge passengers; and, evidently to avoid further incumbrance of the street with structures, it was provided in said act “that such suburban or entering
Remembering that we speak of street railroads, or railroads of the same kind, different only in name, that may do all and only the things that street railroads may do, according - to legislative intention, we come to the act of 1899 (Acts 1899, p. 378, §5468i et seq. Burns 1901), entitled “An act to authorize the consolidation of two or more street railroad companies,” etc. It provides that, upon effecting the consolidation, the new company shall cause notice thereof to be recorded in the recorder’s office of the different counties through which the road of such company may run. It also authorizes any street railroad company, organized under the laws of this State for the purpose of building a street railroad, to build such road from any point in the State to the State line, thus making it clearly manifest that' the legislature intended that the railroad authorized by consolidation to run through more than one county, and from any point in the State to the State line, was to be nothing more nor less than the street railroad, with identical powers and obligations.
A very significant act was passed in 1901 (Acts 1901, p. 461, §5468a et seq. Burns 1901), entitled “An act concerning street railroad companies, granting additional rights and powers,” etc. It provides, among other things, that any street railroad company, heretofore or hereafter organized, shall, in addition to the rights and powers already given to street railroad companies by law, have the right of eminent domain; also the right to construct and operate railroads connecting cities and towns; also the right to regulate the time and manner in which passengers and property shall be transported.
It will be noted that this act grants, not to interurban, but to street railroad companies, additional rights and
While it cannot be said that authority from the legislature and city, to enter the streets of Indianapolis on the rails of the local street-ear company, will, of itself, prejudice or affect the question of additional servitude, yet, the unmistakable purpose of the General Assembly to confine the rights and powers of the interurban companies strictly within the charter rights of the street-car companies, which are declared by the courts to be in aid of the common public use, and not a new burden to the street, is of value as indicating the design of that body so to limit the operation of interurban roads, at least within the cities, as to make their presence of no greater or different burden to the streets than that of the street railroads. Indiana, etc., R. Co. v. Eberle (1887), 110 Ind. 542, 546, 59 Am. St. 225, and cases cited.
Then what may a street railroad company, organized to operate a street railroad within the city of Indianapolis, rightfully do within the limits of its charter? It may adopt any means for the transportation of persons and property, not harmful to the abutter, not inconsistent with any proper use of the highway, and useful and efficient in facilitating the passing and repassing of persons and freights through the streets. There is, in general dedica
We know, as a matter of history, that the street-car, from its earliest, introduction, has been, and still is, essentially a one-car system, intended as an aid to the public easement. It was designed to occupy the public thoroughfares, in populous communities, its tracks to conform to the exact grade of the street, so as to deprive no traveler of any part of the street, and no abutter of the free ingress to and egress from his property; the ears to be run at a moderate rate of speed, at short intervals and with frequent stops; to take up passengers and discharge them at their destination, without delay, and before they shall accumulate in large numbers in the streets; to run slowly and with little momentum, and'thereby enable the driver to keep it constantly under control. Any other method of operation in the streets -would be incompatible and inconsistent vdth the general highway use. Trains of cars are disallowed as being unsuitable and unnecessary to the public requirements, therefore inconsistent with highway uses. Long trains occupy long intervals in passing, cause undue obstruction in the street, and delay to those who desire to pass over the track at street crossings. To illustrate: The single car, forty-four feet long, running at the rate of eight miles an hour, will clear the roadway of a cross street
Undoubtedly the chief business of a street-car is the carrying of passengers, but there appears in the law of the highway no objection to its carrying light and package freight. It has, perhaps, always been the custom in Indianapolis to carry, for its passengers, hand baggage, filled and unfilled market baskets, tool boxes, baby carriages, clothes baskets, and all manner of small árticles and packages that may be conveniently handled from the platform; also, to carry, without an accompanying passenger, the United States mail from the central office to the various substations of the city; likewise a large number of packages of newspapers from downtown offices, and depots receiving consignments from St. Louis, Cincinnati, and Chicago, to the hundreds of distributing points throughout the city.
Repair and construction materials, and perhaps some private freight, are hauled through the city in the local company’s cars, and no complaint is heard, nor inconvenience manifested. .
Besides, what principle can be advanced in condemnation of the inclosed, reasonably sized, neatly constructed freighter express-car? "Was not the transportation of property over the roads and streets as deeply seated in the dedicatory
The further legislative purpose manifested by the foregoing enactments was to obviate the localization of street railroads. Any purely local use of a thoroughfare is inconsistent and subversive of the common public right to use it on equal terms, from end to end. The second act passed (Acts 1865, supra) was to authorize the extension of a street railroad into the country over public highways. The third (Acts 1879, supra), was to authorize the construction of street railroads, independent of, and outside of, the city limits. In the nature of things, street railroads, and no other means or modes adopted as expedients in the proper use of the public easement, can, on the same terms, be enjoyed by one class of citizens and denied to another. The State is trustee of all the highways, and holds them as a system for intercommunication and exchange for all the people of the State in city and country. All must be treated alike, without reference to his place of residence, for the privilege is a highway right that belongs equally to all citizens of the State. A street railroad is not, and can
If a city street-ear is run out into the country and returns loaded with rural passengers, and passes over the streets in the usual manner, will anyone say that carrying the out of town passengers over the streets is an unwarranted use thereof? This is just what has happened almost daily for a year on at least two interurban railroads that send their cars in and out of the. terminal station. And what difference can it make to the dwellers on the streets traversed, in the value and enjoyment of their property, whether the car that brings the nonresident passengers into the city belongs to this company or that, if it is of the same, or of a proper, size and kind, and operated in the same manner ?
And .what about the freight- or express-car? It will be taken for granted that urban population need frequent communication with the country, and the country folk, the city. Each has indispensable wants of exchange with the other. The cities require the products of the farms, as much as the residents of the country require the markets of the city. Primarily considered, these exchanges cannot be effected without the transportation of persons and property from one section to another, over the public highways provided for that purpose. A freight- or express-ear, propelled by electricity, of reasonable size, enclosed, neatly painted, and made attractive in appearance, sent into the country ten, twenty or more miles, and loaded with milk, fruit, berries, vegetables, and other products of the country, and, while sweet and fresh, hurried to the consumers in the city, passing over the streets at a rate of speed regulated by the city authorities and allowed to the city cars of a similar size, will clear the streets of twenty or more unsightly wagons, that would be required to convey to the city the same, amount of stuff contained in one car. Assum
As expressed by Mitchell, J., in Cater v. Northwestern Tel., etc., Co. (1895), 60 Minn. 539, 63 N. W. 111, 51 Am. St. 543, 28 L. R. A. 310: “If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. * * * Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. ’ ’ And further in the same-opinion the learned judge continues: “It seems to us that a limitation of the public easement in highways to travel and the transportation of persons and property in movable vehicles is too narrow. In our judgment, public highways, whether urban or rural, are designed as avenues of communication; and, if the original conception of a highway was limited to travel and transportation of property in movable vehicles, it was because these were the only modes of communication then known; that as civilization advances, and new and improved methods of communication and transportation are developed, these are all in aid of, and within the general purpose for which highways were designed. Whether it be travel, the transportation of persons and property, or the transmission of intelligence, and whether accomplished by old methods or by new ones, they are all included within the public ‘highway easement, ’ and impose no additional servitude on the land, provided they are not inconsistent with the reasonably safe and practical use of the highway in other usual and necessary modes, and provided they do not unreasonably impair
A distinguished author says: “When land is taken or dedicated for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run upon a grooved track; and the preparation of important streets in large cities for their use is not only a frequent necessity, which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving.” Cooley, Const. Lim. (6th ed. by Angell), 683.
There appears no sound reason for pronouncing an interurban railroad, organized under the street railroad law of this State, an additional burden to the street, on the sole ground that it is a commercial railroad, and therefore classed with steam roads. According to the clear weight of authority, it is the nature of the business, and manner of its authorized operation, and not the commercial character of a railroad, nor the power that propels its ears, that determines whether it is in accord with legitimate highway purposes, or a new use, 'and incompatible therewith. In the case of Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222, in touching upon this point it was said, with the unanimous approval of the court: “This distinction does not rest upon a difference in name—one being denominated a street railroad or passenger railroad, and the other a commercial or freight railroad—nor upon the motive power employed, nor upon the kind of rails used, nor upon the length of the railroad.
Country wagons, large and small, carrying almost every kind of freight, may come from an indefinite distance in the country, and pass over College avenue, singly or in trains, and no one will think of complaining, or of calling in question their right to do so. The way was acquired and set apart for that purpose, in part, and everybody acquiesces in it. If this same freight were collected and placed in a ear, and run in the streets of Indianapolis, at a speed
No adjudication is of value in determining a question under consideration without a knowledge of the facts upon which the case is built. Under this rule, we challenge the value, as precedents, of many of the cases relied upon by appellant. At least two of the roads referred to and adjudged to be additional burdens are but connecting links between two steam traffic railroads, and áre used in passing freight-cars from one road to another.
A very similar question to the one before us arose in Alabama. In the case of Birmingham Traction Co. v. Birmingham R., etc., Co. (1898), 119 Ala. 137, 24 South. 502, 43 L. R. A. 233, the appellant was a company incorporated as a street railroad company, and engaged in the construction of a railroad from Birmingham to Gate City, to be propelled by electricity. Appellee brought injunction to enjoin appellant from constructing its road' through a street in the town of Woodlawn, to which the town had given consent, the fee of said street being in the appellee, until appellee’s damages had been assessed and paid, as for an additional servitude. The court in summing up said: “It may be said that there is almost unanimity in the adjudications that such uses are legitimate uses of streets, by permission of municipal authority, without any right of the owner of the fee to compensation.”
In the case of Newell v. Minneapolis, etc., R. Co. (1886),
I therefore conclude upon this point that interurban cars of suitable size., construction and finish, for the carriage
For an instructive and comprehensive collation of the recent adjudications bearing on the subject discussed, reference is made to extended notes to Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 106 Am. St. 222, and 66 L. R. A. 105.
If the appellant can prove these averments she is entitled to recover, not because the right to operate interurban cars on College avenue imposed a- new and additional burden on her property, but because such cars have been operated in front of her house in an unjustifiable and unlawful manner. We have seen that a company operating interurban cars over the streets of Indianapolis has no greater nor different rights or powers than the local street railway company, and that whatever is not suitable and appropriate in the local company, in the use of the street as
In my judgment, therefore, the appellant is not entitled, under the complaint, to recover from appellees compensation for a new and additional burden upon her lot, but may recover any special damage to her property that has resulted from an unauthorized and wrongful operation of appellees’ cars in front of .her dwelling. I, therefore, vote for a reversal of the judgment to enable appellant to submit to the jury the question of the special damages alleged.
As to the allegation that the ears of said companies do not stop to receive and discharge passengers between their terminal and the city limits, I have to say that, in view of the legislative history of such corporations, as well as the general nature of their vehicles and .traffic, it must be presumed that it was never intended by the legislature that, when they elected to use an urban way longitudinally, it should
With scarcely an exception, it is held by the courts of the -various states that a local, surface, electric railroad is not an additional burden. Note to Austin v. Detroit, etc., Railway (1903), 2 Am. and Eng. Ann. Cas. 530, 535; note to Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 106 Am. St. 222, 232, 244. With the fact admitted, that the streets of the State belong to the whole people, it seems to me that it must also be held that an interurban line is not per se an additional burden, since it is in aid of 'what is proper street travel and traffic. There is no substantial difference in burden between the local and the interurban car, and I perceive no ground in principle for a distinction between them.
As long ago as the year 1894, this court held, in Chicago,
It is a fact of general knowledge that millions of dollars have been invested in the development of the interurban business since the case of Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, was decided, and that no inconsiderable portion of that capital has been invested since the decision in the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra. The question therefore arises whether, as between the extremes in other states, we should not endeavor to grasp the principle upon which our own decisions rest, and, in the absence of controlling reason to the contrary, hold fast to it as a rule of property?
It is safe to say that, with reference to the question whether cars operated on rails in a city street constitute an additional burden, there is no class.of cases in which the courts of the states have differed so widely. Judge Redfield, writing many years ago, refers to what he terms the singular vacillation of the courts on the subject, and, after speaking of the first disposition to treat steam railways merely as improved highways, and of the fact that in the process of retrocession there was an unnatural impulse to hold that all railways must equally be a burden upon the fee, he adds: “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 (6th ed. by Kinney), #312. It must therefore be evident that, unless there be some yielding of individual judgment, on a matter of this kind, to what has been decided, we will have a condition of instability in the court most greatly to be deplored. It is better for the public interest that the law upon a point of this character should be settled wrong than that it should come to be regarded as eternally unset-
I regard the case of Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, as going far toward the settlement of the question at bar, and it is absolutely controlled by the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra. It must be evident, especially in view of what has already been said, that in the ease before us the fact that the use involves the carriage of property—as in the case last cited —affords no just ground for holding that thereby an additional burden is created. Montgomery v. Santa Ana, etc., R. Co. (1894), 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. 89; Taylor v. Portsmouth, etc., St. Railway (1898), 91 Me. 193, 39 Atl. 560, 64 Am. St. 216; Howe v.
I am not at this time prepared to sanction the process of reasoning in Mr. Chief Justice Hadley’s opinion, by which he reaches the conclusion that interurban companies are limited by their charter in their operation of cars. Before passing upon this .question I should desire to study all cognate statutes and to test every link involved in the reasoning—an opportunity not now afforded me. And I
If it appeared that said companies, acting within their charter and contract rights, were engaged in the operation of long trains of cars upon a city street, it would have to be affirmed that such use constituted an additional burden upon the fee. And here I may say that, in my judgment, mere acts of aggression on the part of such a company are not to be treated as amounting to an appropriation, but as wrongful acts for which another remedy should be sought. In other words, an appropriation must be by an intra vires act; an unlawful possession of a public street would in most instances be a nuisance.
At the time these interurban companies entered the city of Indianapolis, the municipality enjoyed a grant of exclusive power over the streets, and no company could enter without authority therefrom. §§3830, 5458d, 5458k Burns 1901, Acts 1891, p. 137, §59, Acts 1899, p. 260, §§2, 9; Indianapolis Cable St. R. Co. v. Citizens St. R. Co. (1891), 127 Ind. 369, 8 L. R. A. 539; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra; City of Indianapolis v. Navin (1898), 151 Ind. 139, 41 L. R. A. 337; Indiana R. Co. v. Calvert (1907), 168 Ind. 321. Appellant’s complaint alleges that “by the terms” of the contract of said interurban companies there is no limitation upon the number of cars or trains they may run. This, I take it, is not equivalent to an allegation that the contract per-mit-s such companies to run trains. It appears to me that this
A contract is to be construed with reference to the known characteristics of the business to which it relates. Ohio Oil Co. v. Detamore (1905), 165 Ind. 243; Dill v. Fraze (1907), ante, 53. As late as 1905, a former president of the American Institute of Electrical Engineers stated, in an article in the August number of the Century Magazine, p. 512, entitled “The Electric Railway:” “Save on elevated and underground roads of short length, it has been essentially a service of single ears at frequent intervals and convenient stops.” If this may be assumed to be a fact, it may well be questioned whether such companies on entering a city should not ordinarily, as a matter of construction, be held to the requirement that they carry on their traffic in single units. In any event, without clear authority, they
Being compelled to carry freight in other than long trains, it appears to me that the field of interurban endeavor in the carriage of property, owing to steam railroad competition, must be limited to the carriage of light freight for comparatively short distances. It may be assumed that the city, acting under its police power, will see to it that noisome things and substances are not carried. And it should, perhaps, be presumed that,. if business develops so as to. require it, the city, acting under such power, will require the traffic to be divided with other streets. Baltimore v. Baltimore Trust, etc., R. Co. (1897), 166 U. S. 673, 41 L. Ed. 1160, 17 Sup. Ct. 696. And see Indiana R. Co. v. Calvert, supra, and eases cited. I am not prepared to say, in view of the allegations of appellant’s complaint, that the development of traffic by interurban cars might not at some time be such that it would at least interfere with appellant’s appurtenant rights; but especially in the absence of averment showing a right in appellees which, as at present exercised, is unduly burdensome to the abutter, I do not think that the present is a time to have a reckoning with the future in respect to the matters which appellant fears.
Concurrence Opinion
