51 Ind. App. 315 | Ind. Ct. App. | 1912
— In the first paragraph of appellee’s complaint it is averred that certain streets in the town of Red-key had been graded to conform to the original grade of appellant’s railroad tracks, and that appellee had graded and filled her lot abutting on Union street, one of the streets which had been so graded; that afterwards appellant changed its grade, which required a change of the grade of said Union street along and in front of her property, and where such street crossed the right of way of appellant; that the work in building such grade was so carelessly and negligently done as to collect on its tracks and right of way surface-water, together with water which was taken from a tank and used to wash its dirty and filthy stock cars, and' turn the same on her lot, and thereby her premises were made uninhabitable for dwelling purposes.
In the second and last paragraph it is alleged that for more than twenty years appellant had maintained its road on a certain grade, and that Union street in the town of Redkey,
A separate demurrer to each paragraph was overruled and exception taken. Issues were formed by a general denial. The cause was tried by the court without the intervention of a jury. There was a special finding of facts, conclusions of law, and judgment thereon in favor of appellee, notwithstanding the motion, of appellant for judgment in its favor. The errors assigned call in question the conclusions of law, together with the other rulings of the court above mentioned.
Appellee concedes the rule of law, that a railroad company has the right to improve, repair or change its roadbed, and raise or lower the grade thereof, when in its judgment any such change would improve the road or increase its efficiency, without being liable to respond in damages to an abutting property owner, upon the theory that such improvements do not constitute additional burdens not included in the original appropriation. It is insisted, however, that if in making any such change of grade the work is done in a careless and neg
Appellant contends, however, that if any damage resulted to appellee by reason of the work complained of, she cannot recover, because the improvement was all done by, under and by virtue of an ordinance duly adopted by the town of Eedkey; that by reason of such ordinance the grade of Union street was established, and the grade of said roadbed was raised to correspond with said established grade, and the approaches on Union street were built agreeably to the provisions of the ordinance, so as to restore such highway to its original usefulness. Appellant’s position would be correct, and such ordinance would excuse at least a part of the damage sustained by appellee, if it can be said to be an ordinance establishing a grade on Union street “solely for public accommodation”. Chicago, etc., R. Co. v. Johnson (1910), 45 Ind. App. 162, 90 N. E. 507.
It is equally true, however, that the common council of a city, or the board of trustees of an incorporated town, cannot legally authorize one of its streets to be invaded so as to cause special or peculiar damage to the abutting owner, without making the wrongdoer liable for such damage. Town of Rensselaer v. Leopold (1886), 106 Ind. 29, 31, 5 N. E. 761; Uline v. New York Cent., etc., R. Co. (1886), 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661.
This court in the case of Chicago, etc., R. Co. v. Johnson, supra, said: “The reasoning applicable to the change of grades by a city does not therefore apply to a grant of power to a commercial railroad to change the grade and occupy the street with its tracks, and wherever it fails to appear that the change of grade is made solely for the public accommodation the railroad making it must answer for the consequences. ’ ’ By the above finding it is made to appear that the ordinance does not establish the grade for Union street, but only for the portion where' the same is crossed by the tracks of the railroad company, and the portion whereon the approaches to such railroad crossing must be built. It appears from this finding that the ordinance was adopted by the town of Redkey to accommodate appellant, rather than the public,
From the facts found, appellant would not be liable for turning surface-water onto appellee’s land, but, as we have seen, the finding of facts sufficiently shows liability of appellant on other grounds, and damage therefrom to the- full extent of the judgment.
The judgment is affirmed.
Note. — Beported in 97 N. E. 353. See, also, under (1) 3 Oyc. 223; (2) 15 Oyc. 995; (3) 28 Oyc. 839; (4) 28 Cyc. 1086; (5) .15 Oye. 064; (6, 7) 40 Oyc. 643; (8) 33 Cyc. 042; (9) 3 Oyc. 221. As to changing street grade from the level of abutting property con