23 Ind. 623 | Ind. | 1864
The appellants, who were the plaintiffs below, allege by their. complaint that they are seized of a certain quarter section of land; that the turnpike company, defendant, intending to locate the route of their road on the south line of the plaintiffs’ land, so as to occupy twenty-two and a half feet in width of their land across the south end thereof, and a like quantity of the land abutting on the south, but mistaking the location of said south line, actually surveyed and staked off a route for their road, not upon the south line, but almost entirely north thereof, so as to take the whole width of forty-five feet of the plaintiffs’ land nearly the entire distance across the same, and to leave about two acres of laird, belonging to the plaintiff, south of the proposed road; that the turnpike company had instituted legal proceedings, under the turnpike act, (1 G. & H. 474,) to condemn the right of way over the plaintiffs’ land, describing therein the lands to be appropriated, as twenty-two and a half feet along the south line thereof; that appraisers had been appointed by the justice, and such proceedings had before him as resulted in a determination by him against the plaintiffs, who had appealed to the Circuit Court, where the proceedings were still pending; that the turnpike company was about to occupy the ground surveyed and staked off', and to build their road thereon, and to throw open the fences and expose the corn crops of’ the plaintiff's, etc. There are many other things alleged by the complaint not necessary to be stated, as in our judgment they are immaterial. The purpose of the complaint was merely to obtain an injunction. The court below sustained a demurrer to the complaint, based upon the ground that it did not state sufficient facts, and upon that ruling the plaintiffs bring the case before us.
Generally, we shall deem it proper to waive the consideration of such questions, whenever we can do so consistently with the duty which the constitution and laws impose upon us. We accordingly do so in this case.
The constitution expressly prohibits the taking of private property for public use, by a private corporation, unless just compensation therefor be first assessed and •tendered. Art. 1, sec. 21. In the present case, this assessment was made under the provisions of section 7 of the turnpike act. It is urged that that act was repealed by the code, passed subsequently, providing another mode of making the assessment. 2 G. & H. 315. We do not think so.
Precisely a similar question was decided by this court in McMahon v. The Cincinnati, etc. Railroad Company, 5 Ind. 413. It is perfectly within the power of the legislature to provide several different modes of proceeding by which the object may be attained. That is done as to the taking of lands for right of way, and either mode may be lawfully adopted.
In the present case, the corporation, by its proceedings before the justice, secured the right to fake twenty-two and a half feet of the plaintiffs’ land upon the south line thereof, and under color of the right thus obtained,' it is about to take just twice the quantity condemned, and- for
An analogous question arose in the case of The People et al. v. Law et al., 34 Barb. S. C. Rep. 494, in which Hogeboom, J., in delivering his opinion, said: “ I think an injunction is proper to prevent such appropriation, until compensation is provided. Eor: 1: It is the usiial remedy, or one of the usual remedies, and established, and recognized by repeated adjudications 'of' our courts. Davis v. The Mayor of New York, 14 N. Y. 526; Williams v. New York Central Railroad, 16 Id. 97; Attorney General v. Cohoes Company, 6 Paige, 133; Livingston v. Livingston, 6 Johns Ch. Rep. 497; Wetmore v. Story, 22 Barb. 415;
“ My conclusion, therefore, is that the temporary injune-r tion was rightfully awarded, so-, far as it applies - to the taking -of the property .of Bari and; Bartholomew, and should be continued.” .
The case of Bolster v. Catterlin, 10 Ind. 117, cited by the counsel of appellee, and insisted on as .an. authority directly in point, bears no analogy to the case at bar; that was the unauthorized act of the supervisor; he was the agent of the public; he was acting beyond his power; it thereby became his own act,.and was a private trespass; his act could not, under the circumstances, be an appropriation of private property for public use; the owner could at any time resume possession- of his lands; there was no right to have compensation, for there was no valid act of appropriation, nor . was there ■ any act that time could ripen into such appropriation, save only the statute •of limitation. But not so in the.case in judgment; here was a permanent location of the road of the defendant, under color and claim of right, a recognized right, coupled only with a. condition precedent,, which may be waived. . .
Indeed, the power of the court to grant an injunction in .cases of this kind has been repeatedly recognized by •"this court.
In the case of The New Albany and Salem Railroad Company v. Connelly, 7 Ind. 32, Mr. Justice Perkins, in delivering the opinion of this court, says: “Here the proprietor had all the time that elapsed between the location and the commencement, upon his land, of the construction of the road. Why did‘he not file his claim as the statute requires? Had he done so, and had the company failed to give time for its trial according to law, before proceeding with their work, then, under the provision of the constitution requiring prepayment, the court would have interfered, and restrained them by injunction.”
See, also, the case of The Lafayette Plank-road Company v. The New Albany and Salem Railroad Company, 13 Ind. 90.
Judgment reversed; cause remanded to said court, with direction to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion. Costs against appellee.