City of Valparaiso v. The Chicago And Grand Trunk Railway Company

• Decision Date: 29 April 1890
• Docket Number: 14,190
• Citation: 24 N.E. 249,123 Ind. 467
• Parties: The City of Valparaiso v. The Chicago and Grand Trunk Railway Company
• Court: Indiana Supreme Court

24 N.E. 249

123 Ind. 467

The City of Valparaiso v. The Chicago and Grand Trunk Railway Company

No. 14,190

Supreme Court of Indiana

April 29, 1890

From the Lake Circuit Court.

Judgment affirmed.

T. J Merrifield, for appellant.

W Johnston, for appellee.

OPINION

Coffey, J.

This was a proceeding by the city of Valparaiso against the appellee to condemn the land in controversy, for the purposes of a public street. From the order of condemnation the appellee appealed to the circuit court, and defended upon the ground that said land was a part of its right of way, and ground needed and used for depot purposes.

A trial of the cause in the circuit court resulted in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The first question presented by the record relates to the power of a city to condemn real estate belonging to a railroad company, in actual use for right of way and for depot purposes, and to appropriate the same to the use of the public as a street.

The statute authorizing cities to condemn and take lands for public use as a street, is general in its terms. There is no express provision authorizing the taking of property already dedicated to a public use, nor is there anything in the statute from which such a power is necessarily implied.

The land held by a railroad corporation for a right of way and for the purposes of depots, when in actual use as such, is dedicated to the public use.

In re City of Buffalo, etc., 68 N.Y. 167, is in point here. In that case the city of Buffalo undertook to condemn and take certain land belonging to railroad corporations for the purpose of extending the Main and Hamburgh street canal in said city. Folger, J., who delivered the opinion of the court, said: "The city of Buffalo must produce statutory authority, which in express terms gives it power to acquire these lands; or statutory authority from which the implication that it may, is necessary. The city produces the charter given to it by the Legislature, by which, there is granted to it, 'power to take lands for * * canals, basins, slips and other public waters, and for any other corporate purpose or object,' and to 'enlarge and alter' the same; and by which 'unwholesome waters and matter may be abated by draining, or in any other way it shall deem expedient.' The charter does not give power in express terms to take these lands, or any other held for public use. * * * To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear." See, also, In re Boston and Albany, etc., R. R. Co., 53 N.Y. 574.

In the case of Prospect Park, etc., R. R. Co. v Williamson, 91 N.Y. 552, the town of Gravesend undertook to open a public highway across the lands of the railroad company acquired for depot purposes, consisting of several acres lying at the terminus of the road on the seashore at Coney Island. After referring to the statute of the State prohibiting the laying out of public highways through improved...