161 Ind. 295 | Ind. | 1903
— Appeal hy the Wabash Railroad Company from an interlocutory order of the Wabash Circuit Court granting a temporary injunction.
The suit was commenced in the Wabash Circuit Court.
Appellee’s application for a temporary injunction was submitted to the court for hearing on the appellee’s verified complaint and the affidavit of Eoscoe D. Smith. The appellant introduced in evidence its’verified answer. The court found in favor of the appellee, and granted a temporary injunction, to which order and proceeding the appellant excepted.
The errors assigned by the appellant are as follows: (1) The appellee’s complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in each of its findings. (3) The court erred in each of its interlocutory decrees. (4) The findings, and none of the findings of the court, are sustained by sufficient evidence. (5) The interlocutory decrees of the court are not, and none of said decrees is, sustained by sufficient evidence. (6) The court erred in granting the appellee a temporary injunction against the appellant. (6-|-) The court erred in sustaining the appellee’s application for a temporary injunction. (7) The appellee was not entitled, and had no right, to put in its crossing over the appellant’s railroad and right .of way at the place mentioned in its instrument of appropriation, until a hearing, trial, and decision upon appellant’s exceptions filed to the award of the commissioners.
All of the supposed errors could probably have been presented under the assignments that the complaint did
The appellee’s verified complaint, which was introduced in evidence, averred that the appellee was, and for more than a year "last past had been, a corporation duly organized, etc., and had been, and is now, engaged in the construction of an interurban street railroad from the city of Huntington to the city of Wabash; that appellee is authorized by the cities of Et. Wayne, Huntington, and Wabash to operate its railroad by electricity; that, in order to construct and operate its said line of railroad from the said city of Huntington to the said city of Wabash, it became and was necessary to cross the right of way and tracks of the Wabash Railroad Company at grade, and to construct its railroad and railroad tracks across the right of way and tracks of said Wabash Railroad Company; that it has endeavored to purchase said right of way, and right to lay its tracks and construct its crossing across the right of way and tracks of said defendant, but was unable to agree with the said defendant as to the price thereof and the manner of such crossing; that thereupon, on the 7th day of May, 1902, it filed its instrument of appropriation in the office of the clerk of the Wabash Circuit Court, appropriating a strip of ground three rods wide off the south side of what was formerly used and occupied as the Wabash and Erie canal, where the same is crossed by the Wabash Railroad Company, defendant herein, in the southwest quarter of section thirty-eight, township twenty-eight north, of range eight east, in Wabash county, in the State of Indiana, appropriating to the use of the said plaintiff so much of said parcel of ground three rods wide across the right of way of said Wabash Railroad Company as is necessary for the purpose of constructing the railroad of said plaintiff with a single track across the right of way and tracks of the said Wabash Railroad Company where the same crosses what
Other facts are averred showing that appellant used means effectually to prevent appellee from putting in its crossing. Prayer for temporary injunction. Appellee’s complaint was verified by affidavit.
The appellant’s verified answer, which was introduced in evidence, stated that the appellant, not waiving any objec
Appellant further stated in its answer that on the 28th day of May, 1902, it duly filed with the cleric and in. the court below its exceptions to said report of said appraisers. The exceptions are numbered, and, briefly stated, are that the appellee’s instrument of appropriation does not state facts sufficient to constitute a cause of action; that the report of the appraisers is indefinite and uncertain as to the manner of the proposed crossing; that said report does not provide that the interlocking works or fixtures mentioned therein shall be approved by the Auditor of State; that said report does not provide for a system of interlocking or other works or fixtures to be approved by the Auditor of State; that said report does not provide that appellant shall not be required to stop its trains on approaching said proposed crossing; that said report does not provide that said crossing and the works and fixtures pertaining thereto shall be constructed and maintained at the exclusive expense of the appellee; that it is reasonable and practicable to avoid a grade crossing at said place; that the compensation assessed by the appraisers in favor of appellant for said crossing is insufficient and inadequate; and that appellant will be damaged by said crossing in the sum of $15,000. Appellant’s answer alleged that said condemnation proceedings are still pending in the court. below upon said appellant’s exceptions filed to said report of said appraisers, and that there has never been any trial of law or fact upon said exceptions; and that said appellant has never accepted said $300, or any part thereof, assessed by said appraisers as its damages. That appellant filed said exceptions in good faith, and.expects to present them in good faith to the court below at such time as the same may be set for hearing and trial.
Appellant admitted in its said answer that it has objected and interfered with appellee in putting in the cross
The appellant in its said answer submitted to the court that, until the final hearing of said cause upon said exceptions to said report of said appraisers, said appellee is not lawfully entitled to a crossing at said place, and that in resisting said crossing appellant was in the lawful exercise of its rights, using the same upon and for the protection of its own property, and foi’the protection of its employes and of the public who travel over its railroad; . and it asked that appellee’s application -for a temporary injunction be denied. This was all thé evidence given in the cause. . .
The objections made by the appellant to the sufficiency of the complaint are that it appears upon the face of the pleading that the right of the appellee to relief by injunction is not clear, and that the facts stated in the instrument of appropriation by which the appellee claimed to have acquired its right to cross appellant’s railroad track are not set out.
Interurban street railroad companies are expressly authorized by the statute to construct their .roads across any •railroad' in this. State. §5468a Burns 1901, clause 5. "When the proposed crossing is not within the limits of any street or highway, if the two corporations can not agree upon the amount of compensation to be made therefor, or the manner of such crossing, -the same must be ascertained and determined by commissioners to be appointed as is provided in the statute in respect to thé taking of lands. Idem. The statute regulating the taking of
The only statutory requirement in regard to the contents of the instrument of appropriation is that it shall
While the complaint before us does not state what the particular averments of the instrument of appropriation filed by it were, it does allege with clearness and precision that it was duly incorporated; that it was engaged in the construction of an interurban street railroad; that it was authorized by the several cities from which, and through which, it was to be constructed to operate its railroad by electricity; that it was necessary for it to construtet its tracks across those of the appellant at grade; that it had endeavored to purchase that right, but had been unable to agree with the appellant as to the compensation and the manner of crossing; that it had thereupon on May 7, 1902, filed its instrument of appropriation in the office of the clerk of the Wabash Circuit Court, appropriating a strip of land which is accurately described; that it duly notified the appellant that it would on May 17, 1902, at 11 o’clock a. m., make application to the'Wabash Circuit Court for the appointment of three disinterested freeholders to appraise the damages which the appellant would sustain by such appropriation and the manner of such crossing; and that it duly filed its petition in said court for the appointment of appraisers for. said purposes; that the court made the appointment; that the appraisers were sworn, and made their award in writing, assessing the damages and fixing the manner of crossing, both of which are specifically set
It was not necessary to set out the instrument of appropriation filed by the appellee, or a statement of its contents, in the complaint for the injunction. The right of the appellee, if it had any, was founded upon the order of the court and the proceedings subsequent thereto, and not on the instrument of appropriation. Where an action is brought to enforce a right arising from a judgment of a court of record, the pleadings upon which the judgment was recovered are not recited except so far as may be required to render the complaint intelligible. The pleadings are merged in the judgment, and the right of the plaintiff is established by it. In a collateral proceeding it will be presumed that the court, if of general jurisdiction, found the pleading sufficient to authorize its judgment or order, and such pleading can not be called in question in an indirect attack. The issue of the sufficiency of the instrument of appropriation may be, and must be raised, if at all, in the condemnation proceedings. Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 599, 600.
Giving to the statute under which these proceedings were taken as strict a construction as their nature requires, we are satisfied that the complaint was not defective because of its failure to aver that the instrument of appropriation stated the jurisdictional facts which must be set out in that pleading. Adams v. Harrington, 114 Ind. 66, 71.
Appellant appeared to the condemnation proceedings and filed its exceptions to the award of the appraisers. It insists that this action upon its part operated as an appeal, and suspended the right of the appellee to take possession of the property described in the instrument of appropriation until the final determination of the proceedings. The statute in so many words provides that, notwithstanding such appeal, the appropriating company may take posses
The court has the power at any time to amend any defect or informality in any of the special proceedings authorized by the statute under consideration as may he necessary. §5468g Biirns 1901. On appeal, the exceptions filed by the owner of the land may be amended. Midland R. Co. v. Smith, 125 Ind. 509, 511. The instrument of appropriation also may be amended-on such appeal. Hunt v. New York, etc., R. Co., 99 Ind. 593, 595.
The objection that the question whether it is practicable to avoid a grade crossing, and, if not, the mode of such crossing, must be submitted to the circuit court of the proper county for determination, is not well founded. Section 5158a Burns 1901 of the general railroad law does not apply to street or interurban electric railroads, but the latter are governed in proceedings to acquire a right to cross another railroad by §5468e Burns 1901. Acts 1901, p. 461, §5. By the later enactment, which applies expressly to interurban and street railroads, the manner of such crossing is to be determined by the commissioners appointed by the court upon the filing of the instrument of appropriation. §5468a Burns 1901, clause 5. Acts 1901, p. 461, §1.
The commissioners were not authorized to determine by which of the corporations the expense of establishing the crossing should be paid. The statute fixed that liability upon the company owning the road last .constructed, unless: otherwise agreed upon.
The complaint for the temporary injunction stated facts sufficient to entitle the appellee to the relief demanded, and the demurrer to it was properly overruled. The evidence, consisting of the verified complaint, together with the admissions contained in the answer of the appellant, was sufficient to sustain the finding and order of the court.
We find no error in the record. Judgment affirmed.