177 Ind. 417 | Ind. | 1911
This case was in the lower court consolidated with the case of Morris v. City of Indianapolis (1911), ante, 369, 94 N. E. 705. The cases involve the same track elevation statute and the resolution of the board of public works of the city of Indianapolis, which we considered in the Morris case. In fact, the records in these two appeals, including the pleading, etc., are substantially the same, and the questions presented are identical, with the single exception that in the case now before us appellant seeks to recover for soil removed from Missouri street and Kentucky avenue. Under the circumstances, therefore, the decision of this court in the case of Morris v. City of Indianapolis, supra, must be regarded as a ruling precedent, and held to determine the questions presented in this appeal in regard to the validity of the statute and appellant’s right to recover the damages
It is disclosed that appellant appeared before the board of public works of the city of Indianapolis, and remonstrated against the assessment of damages as made by said board. The grounds set up in the remonstrance were as follows: (1) That the award of $10 was too small, and did not represent the damages recoverable under existing law; (2) that the assessment ivas arbitrarily made without regard to existing law.
It is shown by an exhibit, filed in connection with the remonstrance, that appellant’s access to its property has been temporarily interfered with by the change of the grade of the streets on which its property abuts, and damages, alleged to have resulted from the change of grades, are sought to be recovered. In addition to this, appellant seeks to recover for the removal of soil from Missouri street and Kentucky avenue, upon which its property abuts, which soil, it is charged, was used to construct the embankment on which the railroad rests. Under the remonstrance, appellant sought to have damages to the total amount of $50,000 awarded in its favor. The board of public works, after hearing the evidence given in support of the remonstrance, overruled it, and finally approved and confirmed the assessment of damages which it had previously made. From this decision of the board, appellant appealed to the Superior Court of Marion County.
Section 5 of the track elevation statute (§8868 Burns 1908, Acts 1905 p. 144) provides that the board of public works shall be the tribunal for assessing damages arising out of the elevation or depression of railroad tracks in carrying out the work as authorized by the statute, in case such damages are recoverable under existing laws. It also prescribes the procedure to be had in the matter before the board of public works, and gives the right of appeal to a remonstrator from the decision of the board to the superior court of the county.
We are of the opinion that the method contemplated by the law to be employed in prosecuting the appeal to the superior court is for the remonstrator to file an appeal bond to the approval of such board, and to procure a certified transcript of all the proceedings in the matter had before said board, and file such transcript in the office of the clerk of the court to which the appeal is taken. Thereupon the clerk is authorized to docket the case as a cause pending in that court.
Appellant, as shown, is engaged in operating a plant for the manufacture of machinery. This plant, as disclosed by the record, is situated in square ninety-one in the city of Indianapolis, on a rectangular tract of land bounded on the west by West street and on the east by Missouri street. The south line of this tract is about eighty feet north of the north line of Louisiana street. Appellant’s foundry and machine
It was held in the case last cited, that the right to the soil of a public street remains in the owner of the fee, and that a municipal corporation has no right to remove it unless its removal be necessary for the improvement of the street. It was further held in this case, that where there is a general plan for grading and improving highways or streets, intersecting streets and highways in the vicinity of the one improved are to be deemed parts of the same general plan, and soil may be removed from one and used on another.
It does not appear in this case that appellant asserted any right or title to the soil in question, or made any offer to remove it for its own use, or in any manner to take care of it. Consequently, under the rule which we affirm, appellant must be held to have waived or abandoned its claim or right thereto.
The questions in regard to appellant’s right to recover on account of the change of the street grades have been so fully considered in Morris v. City of Indianapolis, supra,
In Egbert v. Lake Shore, etc., R. Co., supra, the railroad company on its own motion, and for its own accommodation and without any direction or command from the town authorities in making an improvement to its roadbed, materially interfered with the ingress to and the egress from plaintiff’s premises. Under the facts in that ease the railroad company was held liable to the property owner for damages.
In Chicago, etc., R. Co. v. Johnson (1910), 45 Ind. App. 162, 90 N. E. 507, the case of Egbert v. Lake Shore, etc., R. Co., supra, is shown by the court’s opinion to be inapplicable to the question as presented in the case at bar. The railroad in the latter cause ran through the city of Bedford, Lawrence county, Indiana. The city, by an ordinance, ordered and required the railroad company to depress its tracks so that the grade thereof would conform to the grade of the street on which the tracks were located, which street the city desired to improve. The city and the railroad company subsequently entered into a contract, under which the company agreed to straighten its tracks, to remove a switch track, and to construct a portion of the improvement in changing the tracks and grade at its own expense. As a consequence of making the improvement by the railroad company, appellee, an abutting owner, was seriously damaged by reason of the company cutting down the surface of the street in front of his property to an established grade. The company claimed that, in changing the grade of the street at the direction or command
The late case of Cincinnati, etc., R. Co. v. City of Connersville (1910), 218 U. S. 336, 31 Sup. Ct. 93, 54 L. Ed. 1060, lends no support in favor of appellant’s right to recover in this action. What the court held in that case was that the railroad company might be required to bear the entire expense arising out of the construction of the railway bridge over a public highway or street, made necessary by the act of the city in opening such highway through an embankment of the railroad company; that easting the payment of such bridge on the railroad company would not be denying due process of law, as guaranteed under the federal Constitution, which requires that compensation be made when private property is taken for public use.
Without giving the questions here involved any further consideration, we adjudge on the authority of the decision in the case of Morris v. City of Indianapolis, supra, that the
The judgment is therefore affirmed.
Note.—Reported in 94 N. E. 886. See, also, under (1) 3' Cyc. 395; 11 Cyc. 757; (2) 33 Cyc. 299; (3) 33 Cyc. 299, 300; (4) 28 Cyc. 1086; 43 Am. Dec. 723; (5) 28 Cyc. 847.