66 Ind. App. 521 | Ind. Ct. App. | 1917
— This is an appeal from a judgment
The issues of fact were tendered by a complaint in one paragraph and a general denial. The complaint alleges in substance that during the years 1913 and 1914, the appellees, in constructing a subway separating the grades of the Lake Erie and Western Bail-road Company and the traveled way of the Indianapolis and Noblesville turnpike, a public highway, at a point one mile south of the city of Noblesville, in disregard of appellants’ rights, entered upon their lands, and used and occupied the same for one year, and removed gravel, earth and other substances therefrom and piled thereon waste gravel, earth and material, and left and abandoned the same on said premises to appellants’ damages in the sum of $150, payment for which has been demanded and refused.
Appellants’ motion for new trial was overruled and this rulihg is assigned as error in this court and relied on for reversal.
Said motion contains three grounds, the last two of which respectively challenge the decision of the court as not being sustained by the evidence, and as being contrary to law. The same questions are presented by each of said grounds and a disposition of them will dispose of the appeal. Appellants concede that there is no material conflict in the evidence.
The facts which gave rise to the litigation, as stated by appellants in their original brief, are as follows: “The Public Service Commission of Indiana, made an order in a cause pending before it: (1) for the abatement of a grade crossing, and (2) the construction of a subway at a point one mile
“Plans for the work, including drawings and specifications, were prepared by the railroad company and adopted by the commission. The work was ordered to be performed by the railroad company and the cost was apportioned between it and Hamilton county. The railroad sublet a part of the labor, retaining to itself the furnishing of all material and the performance of certain skilled work.
“In the process of destroying the ‘old’ crossing and constructing the ‘new’ subway, entry was made upon appellants’ lands, which were used for stabling teams, for storage of materials, for construction purposes, a boathouse thereon was wrecked for kindling, gravel was taken for construction purposes, and a mass of waste earth and debris containing some 1,000 or 1,200 cubic yards was piled upon the premises and abandoned there.”
The questions involved, and determined against appellants by the lower court, and here sought to be reviewed as stated by appellants’ original brief are in substance as follows: (1) Whether the powers of the Public Service Commission with respect to grade crossings are sufficient to accomplish the vacation of a public highway without the aid of ancillary proceedings in some other tribunal. (2) Whether either the appellee railroad company or the board of commissioners could, “by resorting to the principle of independent contractor, absolve itself from liability for its duties with respect to public highway crossings. ’ ’
It is contended by appellants that the trial court
Appellants insist that this view of the law, so taken by the trial court, was erroneous, because: (1) A highway being only an easement, or right to travel, an abandonment, when complete, effected a reverter of the part abandoned, and that formal proceedings to vacate were unnecessary, that the Public Service Commission was, in any event, clothed with ample power to vacate in such cases, and that the consummation of its order separating the grades and locating and defining the subway, was in effect a vacation of the former grade crossing, in so far as the subway departed from such original grade crossing. (2) That the duty of a railroad company to make all necessary provisions with respect to highway crossings is a charter duty imposed by the general assembly in the exercise of the police power of the State, and is therefore such a duty as is not sus
As preliminary to a disposition of these questions, it should be stated that this appeal was taken to the Supreme Court, and the transcript of the record was filed in that court; that since the filing of appellants ’ original briefs, appellees filed their petition asking the transfer of said cause to this court, under §1397 Burns 1914, Acts 1901 p. 568. This petition was granted and the case transferred to this court. It is now insisted by appellants that the Supreme Court has exclusive jurisdiction in all cases concerning highways, and that appellees, by filing said petition to transfer, in effect conceded that no highway question was involved, and hence that the land on which the trespass involved was committed is appellants’ land, and that they have therefore waived the first question above suggested.
We think appellant is in error in this contention, but, in any event, the conclusion which we have reached affecting the second question, supra, makes it unnecessary to consider the first.
The construction of the subway in question was let to another contractor. The work was one which appellees, or either of them, might legally let to such contractor. The trespass for which appellants seek damages was committed by those in charge of such work, and the damage sought to be recovered is for á trespass on appellants’ land, á thing wholly unnecessary to the performance of such work.
However, it is insisted by appellants, in effect, that the doctrine of independent contractor has no application in this case because the work which was here attempted to be turned over to such contractor was a work which the law required appellees to perform, and that the duties and obligations connected therewith were implied covenants of the railroad company’s charter, which such company could not lay aside or cast upon the shoulders of another.
It is further insisted by appellants, and with good reason, that, under the contract entered into between the railroad company and the contractor, to whom it sublet said work, the railroad company retained such supervision and control over the work, that it is not relieved by such contract-from responsibility for damages resulting from the trespass on which .appellants ’ action is based.
The theory upon which the contractee is relieved
In this connection, however, appellants are met with a contention that their motion for new trial was joint and that the ruling thereon was proper unless it should have been sustained as to both appellees; that, under the evidence, there can be no liability against the board of commissioners, and hence no available . error resulted from the ruling on said motion for new trial.
"We have carefully read all the evidence in this case, and examined the law applicable thereto, as expressed in the decisions of both the Supreme Court and this court, and we are unable to see upon what theory, under the evidence, there could have been any judgment against the appellee board of commissioners.
We cannot agree with this contention. In the instant case, the undisputed evidence shows that said board of commissioners had nothing to do with the work of constructing said subway, or the separating of said grades, except that it was asked to make an appropriation of $2,775 as the part-Hamilton county was to pay therefor. It made this appropriation, and the railroad company undertook or agreed to construct the subway and make the separation of grades. The railroad company, by a contract to which said board was not a party, sublet the work to an independent contractor. The only other evidence, in any way connecting such board of commissioners with said work, was evidence to the effect that the members of such board were on one occasion called down to said work, and while there some one in charge of the work asked them if there would be any objection to putting some of the dirt excavated from the subway at a point indicated on the old right of way, to which the members of said board responded in effect that they had no objection if it would not interfere with any farmer or with any former arrangements that had been made.
If the trespass for which appellants seek to recover, damages was in fact a trespass upon the public highway, they have no cause of action against either appellee, because their complaint proceeds upon the theory of a trespass upon their own lands. On the other hand, if the land on which the trespass was committed was, as appellants contend, a highway which had in fact reverted to appellants — a question which we need not and do not decide — any permission given by said board of commissioners to said contractor, permitting it to place dirt on such highway, was a nullity which could in no way affect the liability of the county represented by such board. In such case, the contractor, and those engaged with him in such work, were responsible for such trespass, and hence liable for any damages resulting therefrom. Cases supra.
The judgment below is therefore affirmed.
Note. — Reported in 114 N. E. 998.