174 Ind. 167 | Ind. | 1910
Lead Opinion
This suit was brought by appellant on August 28, 1905, to enjoin appellees from constructing a street and interurban railroad at grade across the railroad tracks of appellant, where said last-named tracks cross Main street and within the limits of said street in the incorporated town pf Redkey, Indiana,
Appellees filed an answer of general denial. The traction company filed a separate answer to the complaint. Appellant’s demurrer for want of facts to the traction company’s separate answer was overruled. On September 5 said traction company filed a cross-complaint, seeking to enjoin appellant from interfering with its tracks as laid on
Appellant’s demurrer for want of facts to said cross-complaint was overruled, and it filed an answer thereto.
After issues were formed, the case was heard by the court, and a special finding made and conclusions of law stated thereon, to each of which conclusions of law appellant excepted. A final decree in accordance with the conclusions of law was entered against appellant on the complaint and cross-complaint.
Appellant’s motions for a new trial and to modify the decree were overruled.
The errors assigned by appellant call in question each conclusion of law and each ruling of the court adverse to it.
The special findings are, in substance, that appellant is a railroad corporation organized and existing under the laws of Pennsylvania, Ohio, West Virginia, Illinois and Indiana, and. owns and operates as a common carrier a line of railroad extending from the city of Chicago, Illinois, through Indiana, Ohio and Pennsylvania to the city of Pittsburg,
The conclusions of law are, in substance, as follows: (1) That on August 25, 1905, said traction company Avas duly authorized to use and occupy Main street, in the town of Redkey, by its street and interurban railroad, and Avas rightfully in the use'and possession of said street by its tracks on either side of the points at which said street is intersected and crossed by appellant’s main track and passing track, and said traction company is entitled to the relief prayed as to the use of said street. (2) That on said day appellant had no right to dig out and remove the track of said traction company from said Main street. (3) That said traction company is authorized and empoAvered and is of right entitled to construct its street and interurban railroad over and across the main track and passing track of appellant in Main street, in said town of Redkey, by placing in
Appellant cites cases from other jurisdictions, which hold that such use is an additional burden for which it, as the owner of the fee in said street, has the right to recover damages.
It is not necessary for us to review said cases cited by appellant, for the reason that this court, after a careful consideration of all the authorities, has held otherwise; that such use is not such an additional burden and servitude upon the street as to require an assessment and payment of compensation to the abutting lot owners or other owners of the fee in the street as a condition precedent to the occupancy and use of the street by said interurban company, or for which such owners of the fee in the street are entitled to recover damages. Kinsey v. Union Traction Co. (1908), 169 Ind. 563, 601-634; Mordhurst v. Fort Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 106 Am. St. 222.
This was in conformity with §5676, supra, because the traction company’s track was at the point where it crossed the main and passing tracks of appellant, ‘ ‘ the road last constructed, ” and appellant’s switch track was at a point where it crosses the traction company’s track in Main street, “the road last constructed,” because it was constructed after the traction company’s track had been constructed at that point. The fact that the traction company constructed its track at that point for the purpose of avoiding the expense of such switch track crossing makes no difference. It had the right to construct its track at said point when it did, and when appellant, in constructing its switch track, found the traction company’s track at that point, it should have put in a proper crossing at its own expense, instead of removing the traction company’s track.
It is evident that the court did not err in its conclusions of law. It follows that the court did not err in overruling appellant’s demurrer to the traction company’s answer to the complaint, nor in overruling appellant’s demurrer to the traction company’s cross-complaint.
As the decree of the court was in accordance with the conclusions of law, the court did not err in overruling appellant’s motion to modify the judgment. Nelson v. Cottingham (1899), 152 Ind. 135, 137; Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237, 242, and cases cited.
Judgment affirmed.
Concurrence Opinion
Concurring Opinion.
I concur in the conclusion as to the right of appellee traction company to lay the track in question, but base my concurrence upon the proposition that there is no power in cities or towns to subvert the use of streets so as to render them ineffective for the purpose of their creation, and burden them in such manner as to constitute additional servitudes upon them.
Primarily, street railways were designed for local passenger transportation upon streets, to relieve congested conditions, to provide for transportation of the masses, and for rapid transportation for considerable distances, and the
It will not do to attempt a distinction between steam railroads and interurban roads by the term “commercial railroads,” for that is a distinction in degree only; one is relatively as much a commercial railroad as the other. We must look for some other distinction than a classification as ‘ ‘ commercial,” and it is found in the character of the use, and therein lies the distinction, as well as the reason for it, both as to the subjects of transportation over streets of cities and towns, which may be regulated under the police power, the same as in case of ordinary railways owning a right of way, and as to the length of train, and the character and frequency of train movements, which are subject to regulation under the police power; and, irrespective of the character of the grant, if the use becomes obstructive or subversive of the primary, ordinary, reasonable or necessary use of streets as such, it would be unauthorized. Grand Trunk R. Co. v. City of South Bend (1910), post, 203. The use should be restricted to carriage over streets of persons and such property as is ordinarily or usually carried over streets.
The grant must be made in discretion, or curtailed in enjoyment. Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; Dooly Block v. Salt Lake, etc., Transit Co. (1893), 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; Watson v. Robberson Ave. R. Co. (1897), 69 Mo. App. 548; Lockwood v. Wabash R. Co. (1894), 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. 547; Delaware, etc., R. Co. v. City of Buffalo (1899), 158 N. Y. 266, 53 N. E. 44.