61 F. 885 | D. Ind. | 1894
This is a bill for the purpose of enjoining Robert Oluggish, as drainage commissioner of Henry county, Ind.. and F. J. Smith, contractor, from constructing a ditch known as “Big Buck Creek Ditch,” located in portions of the counties of Henry and Delaware, in said state, in the manner in which they are engaged and threatening to construct the same. The complainant alleges that the defendants are engaged in the construction of a ditch, employing therefor a heavy dredging machine, which floats in the water of said stream, and, by means of engines and machinery, it is used for the purpose of digging out and deepening the said stream. It is alleged that the complainant is a railroad company, engaged in interstate traffic and in carrying the United States mails, and that the construe!ion of the ditch by means of said dredging machine will require the removal of a portion of fhe bridge of said company which has been constructed over and across said stream, and that, by means thereof, the use of the railroad as a common carrier will be interrupted, and it will be put to large expense in rebuilding said bridge.
Upon the filing of this complaint, a temporary restraining order was issued until a further hearing could be had. Afterwards, on the 4th day of June, 1894, the defendants moved the dissolution of the temporary restraining order, and filed a. number of affidavits in support of their motion. It is shown by the defendants that on the 10th day of November, 1893, Elisha OÍift and others filed their petition in the circuit court of Henry county, Ind., for the establishment and construction of a ditch or drain under and pursuant to the provisions of an act of the legislature of the state approved April (5, 1885. The work contemplated the straightening, widening, and deepening of a stream and water course known as “Buck Creek” for a distance of about 14 miles, commencing in the northern
It is insisted by the defendants that the circuit court of Henry
The defendants further insist that the law of the state has conferred no power upon the drainage commissioner to expend money raised by assessment for- the construction of a ditch, or for the purpose of building or repairing any bridge over the ditch so constructed by him. It has been held that a drainage commissioner appointed under the law of this state has no power, by virtue of the law, to build a bridge over a drain constructed by him, and pay for it out of the fund resulting from assessments against the landowners benefited by the construction of the drain. Rigney v. Fischer, 313 Ind. 313, 15 N. E. 594. It would seem that the authority conferred upon a railroad company, by the law of its organization, to cross any stream of water in the line of its road, coupled with the duty to restore the stream so crossed to its former state, or such state as not to impair its usefulness, applies to streams not navigable, as well as to those that are navigable, because legislative authority is as necessary in the one case as the other. Railroad Co. v. Moffitt, 75 Ill. 524. The duty of a railroad to restore a stream or highway which is crossed by the line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing becomes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public. Cooke v. Railroad Co., 133 Mass. 185. Under a fair construction of section 8903, Rev. St. Ind. 1881, it is the duty of a railroad company to construct its road where it intersects any highway or stream in such manner as to' afford security for life
From these considerations, it results that the temporary restraining order must be dissolved; and it is so ordered.