Indiana, Bloomington And Western Railway Company v. Allen

• Decision Date: 07 February 1888
• Docket Number: 13,096
• Citation: 15 N.E. 446,113 Ind. 581
• Parties: The Indiana, Bloomington and Western Railway Company v. Allen
• Court: Indiana Supreme Court

15 N.E. 446

113 Ind. 581

The Indiana, Bloomington and Western Railway Company v. Allen

No. 13,096

Supreme Court of Indiana

February 7, 1888

Petition for a Rehearing Overruled April 13, 1888.

From the Fountain Circuit Court.

Judgment affirmed.

C. W Fairbanks, L. Nebeker and H. H. Dochterman, for appellant.

T. F Davidson, for appellee.

OPINION

Elliott, J.

In 1855 Martha Thompson owned the land involved in this controversy. During that year, the New Castle and Danville Railroad Company surveyed a line of road, and set stakes marking the line surveyed. Nothing further was done until 1869 or 1870, when the Indianapolis, Crawfordsville and Danville Railroad Company entered on the land in dispute and constructed a railroad, claiming the right to do so as the successor of the former company, and for a time operated and maintained a railroad carrying mails, passengers and freight, as railroad companies usually do. To the rights of the companies named the appellant succeeded, and, since its succession, has operated the road as part of its line. At the time of the entry by the Indianapolis, Crawfordsville and Danville Railroad Company, the owner of the land was a married woman, having become the wife of Benjamin Brittingham in 1867. No conveyance to any of the companies was ever executed by her, nor was any express license ever granted by her, nor were any proceedings taken to condemn the land until long after the appellant had acquired its rights. She lived near the land on the line of the railroad from the time of the first entry, in 1855, and owned the quarter-section through which the road ran until August, 1882, when she conveyed it to the appellee. This action was brought by him on the 1st day of May, 1885, to oust the appellant and recover possession. Prior to the commencement of the present action, in February, 1883, the appellee brought suit to quiet title, and obtained a decree quieting title in him. In September, 1883, the appellee began proceedings to compel the assessment and payment of damages, and obtained judgment in the circuit court. This judgment was reversed on appeal. Indiana, etc., R. W. Co. v. Allen, 100 Ind. 409.

The general rule is, that where land is seized by a railroad company without right, the owner may maintain ejectment. Graham v. Columbus, etc., R. W. Co., 27 Ind. 260 (89 Am. Dec. 498); Graham v. Connersville, etc., R. R. Co., 36 Ind. 463; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178 (194); Sharpe v. St. Louis, etc., R. W. Co., 49 Ind. 296; Terre Haute, etc., R. R. Co. v. Rodel, 89 Ind. 128.

The principle which underlies this rule is the same as that which supports the general rule that an owner may maintain injunction against a corporation which seizes his land without right. Anderson, etc., R. R. Co. v. Kernodle, 54 Ind. 314; Midland R. W. Co. v. Smith, ante, p. 233.

But the rule of which we are speaking is a general rule, subject to many exceptions, and to more restrictions than ordinarily surround general rules. One important exception is, that a failure to bring the action until after public interests have intervened will prevent its successful prosecution. Acquiescence for a considerable period after the railroad company has entered upon its duties as a common carrier, will ordinarily defeat the action. This element did not enter into the earlier cases decided by this court, and those decisions are not decisive of a case where it exists and is brought into issue. Here it exists and is asserted as a defence. Our conclusion is, that acquiescence does defeat the action of ejectment, unless there are countervailing facts or some element which nullifies the force of the acquiescence. We do not assert that it will defeat any action, for we are satisfied that it will not ordinarily defeat an action where only compensation is sought. What we affirm is, that acquiescence after public rights have intervened will prevent a land-owner from destroying the line of road by wresting possession of a part of it from the company. This principle does not rest upon the right of the railroad corporation so much as upon considerations of public policy. The rights of citizens are often abridged in order that the public welfare may be promoted. Chief among the fundamental maxims of jurisprudence is that which declares "That regard be had to the public welfare as the highest law," and this maxim underlies the rule we have under discussion. Under our American Constitutions the maxim is not pushed so far as in England, but it goes far enough with us to supply ample ground for denying one who has slept upon his rights a right to dispossess a railroad company charged with a service public in its nature, and important to the social and commercial interests of the country. Compensation he may recover, possession he can not. To the recovery of just compensation his rights are confined. Our conclusion rests on principle, and is fortified by authority. Western Pennsylvania R. R. Co. v. Johnston, 59 Pa. 290; Smart v. Portsmouth, etc., R. R. Co., 20 N.H. 233; Harrington v. St. Paul, etc., R. R. Co., 17 Minn. 215; Harlow v. Marquette, etc., R. R. Co., 41 Mich. 336, 2 N.W. 48; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 2 N.W. 639; Midland R. W. Co. v. Smith, supra; Evansville, etc., R. R. Co. v. Nye, ante, p. 223.

Vast interests are often involved in the maintenance of railroads. They are charged with a public service, and a public character is so strongly impressed upon them that courts exercise a control over them much beyond that assumed over individual citizens. They are recognized as instruments of interstate commerce, and as such are within the control of the Federal Congress. Robbins v. Shelby Taxing Dist., 120 U.S. 489, 30 L.Ed. 694, 7 S.Ct. 592; State Freight Tax, 15 Wall. 232, 21 L.Ed. 146; Railroad Co. v. Maryland, 21 Wall. 456, 22 L.Ed. 678.

They may exercise rights under the power of eminent domain because of their public character. Towns spring into existence along their lines. Factories, elevators and warehouses are built upon them. The mails of the nation are carried by them. They are common carriers of freight and passengers. All these interests, and more, combine in demanding that a citizen, who has stood by until after the completion of a line of road has involved public interests, shall not be allowed to sever the line and destroy its efficiency by wresting possession of part of it from the company. The case does not stand upon the ordinary doctrine of estoppel. The great principle of public policy enters as an important factor and controls the judgment of the court. Nor is there any great hardship upon the land-owner in yielding to its dominion. Ample remedies are open to him. He may demand and secure full compensation. He may do more, for he may invoke the aid of the strong arm of the courts, but, to do this with success, he must move before public interests are involved. If he remains inactive, better that he suffer, if some one must suffer, than the community. But he need not suffer, for compensation, if seasonably asked, will always be awarded him, although possession will be denied.

We do not controvert the doctrine that acquiescence will not preclude a recovery of damages; that we affirm to be the true doctrine. Unless prolonged until the statute of limitations has run, an action for damages will lie; after that period, however, it is conclusively presumed that the damages have been paid. Brookville, etc., Co. v. Butler, 91 Ind. 134 (46 Am. Rep. 580); Blair v. Kiger, 111 Ind. 193, 12 N.E. 293.

We do not, therefore, question the soundness of the cases which hold that, within the statute of limitations, a claim for compensation, made by one entitled to assert it, may be enforced. Rusch v. Milwaukee, etc., R. R. Co., 11 N.W. 253; Evans v. Missouri, etc., R. W. Co., 64 Mo. 453.

Our decision does not impugn the general doctrine of such cases, but it does assert that they do not support the contention that one who has remained inactive until public interests have intervened, can not dispossess the railroad company and thus break the line of communication.

If the appellee's grantor was not under such a disability as prevented her silence from operating against her, she could not have maintained this action unless the decree in the suit to quiet title so conclusively adjudicates the question of title and possession as to preclude the appellant from again bringing it in issue. Leaving that decree out of consideration, we think it clear that the disability of coverture can not avail in such a case as this, where public rights are involved. This is our conclusion, without regard to the change effected by the acts of 1879 and 1881. If the common law, in all its rigor, were the governing rule, the disability of coverture would be of no avail. Before public interests such disabilities must give way. To the welfare of the public such things must yield. We regard the principle which rules here the same as that affirmed in City of Indianapolis v. Kingsbury, 101 Ind. 200, 219. In that case it was held that a married woman who acquiesced in the use of a street by the public would not be allowed to reclaim the land. Authorities were there cited fully sustaining that doctrine. Nor is there any difficulty in sustaining it, for, in cases of condemnation and dedication as shown by the authorities there cited, the ordinary rules do not apply. Certainly, this must be so where public policy controls, for no one can do what the public welfare demands shall not be done. Once it is granted that the public welfare demands that a line of railway shall not be severed by a possessory action, it must inevitably follow that the disability of coverture will not avail, since the rights of the public are...