34 Ind. App. 625 | Ind. Ct. App. | 1905
The appellee’s amended complaint consisted of two paragraphs, and the appellant’s answer was the general denial. Upon trial by jury only the issue formed upon the first paragraph of complaint was submitted for decision. The action of the court in overruling the appellant’s demurrer to that paragraph for .want of sufficient facts is presented for review.
It was shown by’ the first paragraph of the amended complaint that the appellee was, and for more than six years had been, continuously, the owner in fee simple and in the exclusive possession and occupancy of certain land, described, in the northeast corner of a certain section of land in Lake county; that during all that period the appellant -was engaged in operating and managing a line of railway from Chicago, Illinois, to Logansport, Indiana, which line, its right of way and roadbed, passed through the northeast corner of said land in a direction northwestwardly _ and southeastwardly, and passed, in the same direction, through the section of land lying east, immediately adjoining that in which the appellee’s land was; that through this section so lying east of appellee’s land a public drain or ditch had been constructed, extending in a course nearly at right
It is urged that the complaint fails to state a cause of action, for the reason that it is not charged that what the appellant did was not necessary to be done; and it is claimed that the pleading fails to negative contributory negligence on the part of the appellee, and that for such reason also it is insufficient. It is true, as suggested by counsel, that the appellant had a right to construct its railway at the place
“Railroad companies, no doubt, have the right to construct their roads across public ditches, without liability, if they restore them to their original state and usefulness.” Terre Haute, etc., R. Co. v. Soice (1891), 128 Ind. 105, 107; Lake Erie, etc., R. Co. v. Cluggish (1896), 143 Ind. 347.
In New York, etc., R. Co. v. Hamlet Hay Co. (1898), 149 Ind. 344, 347, it was said: “The ‘life and property’ and the ‘franchises’ referred to in the statute are not those of the railroad corporation, but those connected with the ‘stream of water, watercourse, road, highway, railroad or canal,’ across which the corporation constructs its road. The statute forbids the corporation to cross a stream or highway in such a manner as to interfere with the free use of such stream or highway, or in such a manner as to. endanger the lives or injure the property of those using or having interests in the stream or highway; and it requires, further, that after the crossing is made the corporation shall restore such stream or highway to its former state, or at least so far as necessary to preserve its usefulness and its franchises.”
"In the Evansville, etc., R. Co. v. Carvener (1887), 113 Ind. 51 — a case relating to a public highway crossed by the railroad track — it was said: “While the highway can not
So1, a railroad company deriving its powers from the statute may construct its road across a public ditch such as that here involved, not merely as may seem convenient for the corporation, but “so as not to interfere with the free use of the” public ditch as such, and “in such manner as to afford security for life and property” of those using or having interests in the public ditch. If it fail in observing these conditions to the exercise of its rights, it will be responsible for an injury from such failure to one intended by the statute to be protected by such limitations of the power of the corporation. Then, there is the positive requirement that the corporation shall restore the public ditch to its former state, or, it being impossible to do this exactly in all respects, it must restore the ditch “in a sufficient manner not to unnecessarily impair” the usefulness of the ditch; that is, it would seem it is bound to restore the ditch so nearly to its former condition as not to impair its usefulness more than the additional use of it for the purpose of constructing and using a railroad across it renders it absolutely necessary.
What the corporation is charged with having done it is represented as having done, not .in the accomplishment alone of its right to construct its road across the ditch, but negli- ' gently, and the injury alleged to have been suffered by the appellee is shown to have resulted from the negligence charged. It is impossible to reconcile this conduct of the ¿ppellant with the limitations and requirements of the statute. The injuries complained of were consequences of direct action of the appellant, in which the appellee did not participate by act or omission. The conduct of the appellant resulted in the creation of a nuisance. Whether or not it was necessary for the appellee in his pleading to- negative contributory negligence on his part, an inspection of the pleading shows that the objection of the appellant for want of such an averment has no basis in fact.
Judgment affirmed.