155 Ind. 18 | Ind. | 1900
— Suit by appellant to compel appellees to remove their railroad tracks from a street. The complaint in substance alleges that Locust street as originally platted
The second paragraph of answer avers, “that appellees, for more than thirty years, have used and maintained the side-tracks and switches named in the complaint by leave and license of the town of New Castle and have expended large sums of money in building, maintaining and equipping said side-tracks, and switches with full knowledge and consent of the plaintiff and without objection on her part.” Appellant claims that this answer does not meet the complaint, because it neither denies nor justifies the use of the tracks “for switching, yard, and storage purposes”. The complaint shows that the town demanded that appellees remove their tracks from the street, and that appellees refused because they claimed to have lawful right to maintain their tracks in the street. The complaint does not show any use of the street for switching, yard, and storage purposes that would necessarily be unlawful except on the basis that appellees have no right in the street at all. If appellees had a valid right to use the street, the town’s governmental and police powers would not be abated nor diminished. Elliott on Railroads §1082. The complaint, however, is not based on appellees’ refusal to obey regulations of the use, but is founded on the claim of appellees’ usurpation. Therefore, this paragraph is not a partial answer.
In substance the third paragraph of answer is: That in 1868, appellees’ predecessors constructed a side-track, 300 feet in length, along the west side of Locust street from the main line of appellees’ railroad, at the northern terminus of Locust street, to Vine street, which was the first
The court found the existence of Locust street as stated in the complaint; that the street was laid out on the edge of a ravine; that in 1868 appellees’ predecessor built a sidetrack along the east side of Locust street, and within the platted limits thereof, by constructing an embankment from ten to twelve feet high, which was on a level with the street and formed a bed and retaining wall for the street; that this east side-track did not encroach upon the traveled portion of the street and has never interfered with nor diminished the travel upon the street or the means of travel thereon; that in 1868 appellees’ predecessor built a depot and platform, upon piling, in the ravine, just east of this east side-track, which has been continuously used as a freight depot since 1869; that about the same time appellees’ predecessor constructed its west side-track, hut no part thereof is now or ever has been within the limits of Locust street
Appellant claims that, under the third paragraph of answer and the finding of facts, appellees have no right to maintain their side-tracks in Locust Street. Appellees contend, (1) that the statute for the organization of railroad companies gives them the right to go upon streets without • the consent of the municipality, and (2) that, if a grant from the municipality were necessary, appellant is estopped from denying that a grant exists.
The fifth subdivision of §5153 Burns 1891, §3903 R. S. 1881 and Horner 1897, relating to the general powers of railroad companies, reads: “To construct its road upon or across any stream of water, water course, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or water course, road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness
“The usual and ordinary powers of municipal corporations to regulate streets and keep them free from obstruc
The finding does not state that appellees’ predecessor entered upon Locust street under a grant from the municipality. From this appellant argues that the tracks are now unlawfully in the street, and that the town is not estopped from requiring their removal. It is true that the facts pleaded in the third paragraph of answer and the facts found by the court do not constitute an estoppel by conduct. There was no concealment nor misrepresentation by the town. Yor did the other elements of estoppel by conduct exist. Abicht v. Searls, 154 Ind. 594. But the question is whether appellant is not estopped by its laches, that is, whether appellees have not acquired a prescriptive right. Appellant says that the construction and maintenance of the tracks in the street, without an express grant from the town, constituted a public nuisance per se; and that no right by prescription could be acquired. A particular method of construction or operation may be a nuisance, but the mere fact that a railroad is constructed in a street does not make it a nuisance. State v. Louisville, etc., R. Co., 86 Ind. 114. The legislature has given the company the
If the grant in this case be considered in the nature of a mere license, it has become irrevocable by reason of appellees’ expenditures, with the knowledge of appellant. Buchanan v. Logansport, etc., R. Co., 71 Ind. 265; Joseph v. Wild, 146 Inch 249, and cases there collated.
None of the matters presented in the motion for a new trial is material. The controlling facts in the case are undisputed. Appellees’ possession extended over a period of thirty years; it was peaceable; it was continuous; it was open and known to appellant. It was exclusive to the same extent it would have been exclusive under an express grant,
Judgment affirmed.