163 Ind. 268 | Ind. | 1904
-This suit was brought by the appellant against the appellee to enjoin the latter from constructing and operating an interurban railway over that part of Fulton street, in the city of Ft. Wayne, upon which a lot owned by appellant abuts, no compensation for such appropriation and use of appellant’s interest in the land so appropriated having been assessed and tendered. A demurrer to the complaint for want of sufficient facts was sustained, and, upon the refusal of the plaintiff below to plead further, judgment was rendered upon the demurrer. From this judgment the plaintiff appeals, and he assigns the ruling on the demurrer for error.
Greatly condensed, the material facts stated in the complaint are these: The plaintiff is, and for several years has'been, the owner in fee simple of lot number six, in
To determine the sufficiency of the grounds upon which the right of the plaintiff rests, we must look to the contract between the city and the railroad company, and not to the allegations of expected violations of that agreement by the company. If the use of the streets by the defendant in the manner and upon the conditions described and set forth in the contract would not create a new’ and additional burden upon the street, and a deprivation of the plaintiff’s beneficial interest therein, then he is not entitled to an injunction against the construction of the railroad. Future
It appears from the complaint that the contract with the city authorized the railroad company to lay and maintain a single track for an interurban street passenger railway line on and along certain streets and avenues of the city, including Fulton street. The kind of rail to be laid was not specified, and a T rail, such as is used by steam and other railroads, may be adopted. The company was also granted the privilege of constructing, erecting, and maintaining, in connection with its said railroad, all necessary turnouts, switches, feed wires, and poles. The road is to be operated by electricity, and the power is at all times to be ample, and of the approved kind. The cars are to be of the best pattern, with all usual conveniences for the comfort of passengers. They are to be painted and decorated on the outside, and are always to be kept in repair and made attractive in appearance. They are to be designated as express and passenger-cars. The former are to be used exclusively for hauling light express matter, passenger baggage, and United States mail. The latter are to be used, exclusively, for the transportation of passengers and baggage, light express matter, and United States mail combined. TTo train consisting of more than one car is to •be run over said railroad except that, upon petition of the company, the board of public works may authorize the running of a train of two cars.
Trains on steam railroads are drawn by locomotives of enormous size and weight, which constantly emit smoke, sparks, cinders, and steam, and which drop coals of fire from their fire-boxes. Their passenger-trains usually consist of an express and baggage-car, and from one to many
The defendant is authorized by its agreement with the city of Ft. Wayne to run a single electric car over its tracks in that city,- and to carry on such car passengers and the articles specified in the agreement. Upon petition, the use of two cars in a train may be permitted. On the narrow basis of these facts, the plaintiff alleges that the proposed interurban railroad will gather up a large amount of heavy freight and traffic from different parts of the country; that it will use heavy freight-cars and trains at all hours of the day and night; that it will prevent and destroy the ordinary travel and traffic on Fulton street; that it will create great and unusual noises and dust, which will be carried into plaintiff’s residences; that it will shake and jar said dwelling-houses, so as to render them unfit'for use; and that it will sei’iously impede and endanger ingress to and
It will be seen that the. plaintiff was not content to rest his case upon the proposition that the defendant could not acquire the right to construct and use the street on which plaintiff’s lots abut for the purposes of an interurban street railroad without the consent of the plaintiff, or compensation first assessed and tendered or paid, but he attempts to set forth reasons why such privilege should not be granted by the city or exercised by the defendant. It is apparent that every objection founded upon injury to his property rights which the plaintiff can justly urge against the use by the defendant of Fulton street in front of plaintiff’s lots would apply with equal force to the use of that thoroughfare by an electric street railroad constructed and operated wholly within the city limits. But this court has held that such a street railroad is not an additional burden upon the street, and that the owners of abutting real estate are not entitled to compensation on account of such appropriation and use. Eichels v. Evansville St. R. Co. (1881), 78 Ind. 261, 41 Am. Rep. 561; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 303, 304, 26 L. R. A. 337, 47 Am. St. 264; Brown & Co. v. Duplessis (1859), 14 La. Ann. 842; Nichols v. Ann Arbor, etc., St. R. Co. (1891), 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371; Newell v. Minneapolis, etc., R. Co. (1886), 35 Minn. 112, 27 N. W. 839, 59 Am. Rep. 303; Montgomery v. Santa Anna, etc., R. Co. (1894), 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. 89; Rafferty v. Central Traction Co. (1892), 147 Pa. St. 579, 23 Atl. 884, 30 Am. St. 763; People, ex rel., v. Ft. Wayne, etc., R. Co. (1892), 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 752.
It is equally well settled on the other hand that a railroad corporation can not construct a common passenger and freight railroad upon the streets of a city in the absence of a license from the abutting lot owners without compen
If, then, the injuries or inconveniences- sustained by the owners of lots abutting on a street on which an interurban electric railroad is constructed are neither different from those resulting from the construction and operation of an ordinary street electric railroad, nor greater in degree, and if the latter is held not to be an additional burden upon the street entitling abutting lot owners to compensation, upon what ground can it be asserted that the proposed interurban railroad is such an additional burden as requires compensation to be assessed and paid or tendered to the owners of abutting lots before the street can be lawfully appropriated and used for the purposes of such railroad ? The only basis for a claim for compensation is the circumstance that the interurban railroad is intended for the transportation of persons, baggage, light express matter, and United States mail matter to places outside the city of Et. Wayne, and at greater or less distances therefrom. The reason given in support of this claim is that while the interurban railroad is, to some extent at least, a new and additional servitude, it is of no local benefit to the abutting property, that it does not aid in carrying forward the local travel or assist in the work of transportation for which the street was designed, and that the passengers and goods carried by it would not, in its absence, have been brought upon the street at all. It is contended that this is a use of the street not contemplated by the landowners who laid out or dedicated the highway.
A street platted or otherwise laid out in a city .or town of this State is thereby dedicated to the use of the public, and not exclusively to the use of abutting property, nor to the convenience or profit of any or all of the inhabitants of the particular municipality. It forms a part' of the great system of highways of the State, and its use for intercom
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, present and prospective, consistent with its character as a public highway, and not actually detrimental to the abutting real estate. Cater v. Northwestern Tel., etc., Co. (1895), 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. 543; Cooley, Const. Lim. (3d ed.), 556; Elliott, Roads and Sts., 529. The convenience and advantage of all the inhabitants of the city, and of the public at large, must be regarded as the objects contemplated when the street was laid out or opened. A narrower construction would require a sacrifice of the greater interests of the community and the public to the inferior and .subordinate claims of the local lot owner and abutter. Such a construction of the law governing the dedication of public streets and the reserved rights of the original landowner and his assigns in the street by unreasonably increasing the cost of rights of way or use would obstruct all progress, and deprive the local community of the benefit to be derived from the advancements of science, invention, and discovery. It would isolate the community to some degree at least from surrounding neighborhoods, towns, and cities, and subject it to many serious inconveniences and privations. This principle has been recognized by this court, and the question can no longer be considered an open one in this State. Bogue v. Bennett (1900), 156 Ind. 478, 83 Am. St. 212; Magee v. Overshiner (1897), 150 Ind. 127, 40 L. R. A. 370, 65 Am.
Rapid and 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 conveniences 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 Et. 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.
Eor any actual and special damage sustained by the abutting lot owner by reason of the construction of the appellee’s railroad, or resulting from its use, the lot owner has his remedy by an action at law. Dillon, Mun. Corp. (4th ed.), §712, note 1. The railroad company will be liable to the abutting lot owner for any special injury to his property occasioned by the negligence of the company in constructing its railroad or in operating it. Nothing that we have said in this opinion is to be understood as denying or in any degree abridging that right. White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 7 L. R. A. 257; Jeffersonville, etc., R. Co. v. Esterle (1878), 13 Bush (Ky.) 667; Cadle v. Muscatine Western R. Co. (1876), 44 Iowa 11; Brewer v. Boston, etc., R. Co. (1873), 113 Mass. 52; Pennsylvania R. Co. v. Angel (1886), 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1; Baltimore, etc., R. Co. v. Fifth Baptist Church (1883), 108 U. S. 317, 2 Sup.
Many decisions of courts of other states are cited, by counsel for appellant- upon the main question involved in this case. All bave been carefully examined and considered, but w'e failed to find in them sufficient reasons for adopting their conclusions. The grounds assigned are not sufficient to justify us in holding that an. interurban electric railroad constructed and operated under the restrictions imposed on the appellee is such an additional servitude and burden upon the street as to require an assessment and payment of compensation to the abutting lot owner as a conditon precedent to the occupancy and use of the street by the company.
The court did not err in sustaining the demurrer to the complaint. Judgment affirmed.