3 N.E. 144 (Ind. 1885), 11,478, The Baltimore and Ohio and Chicago Railroad Company v. North

Docket Nº11,478
Citation3 N.E. 144, 103 Ind. 486
Opinion JudgeHowk, J.
Party NameThe Baltimore and Ohio and Chicago Railroad Company v. North et al
AttorneyH. Newbegin, J. Morris, B. B. Kingsbury and M. A. O. Packard, for appellant. J. W. Parks, H. Corbin and S.D. Parks, for appellees.
Case DateNovember 04, 1885
CourtSupreme Court of Indiana

Page 144

3 N.E. 144 (Ind. 1885)

103 Ind. 486

The Baltimore and Ohio and Chicago Railroad Company

v.

North et al

No. 11,478

Supreme Court of Indiana

November 4, 1885

From the Marshall Circuit Court.

The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrers to the complaint and the motions to dissolve the temporary injunction.

H. Newbegin, J. Morris, B. B. Kingsbury and M. A. O. Packard, for appellant.

J. W. Parks, H. Corbin and S.D. Parks, for appellees.

OPINION

Page 145

[103 Ind. 487] Howk, J.

A number of errors are assigned by the appellant, the plaintiff below, upon the record of this cause. The controlling questions in the case, however, are fairly presented for our decision by the alleged errors of the court in sustaining the appellees' demurrers to the appellant's complaint.

In its complaint, the appellant alleged that it was a corporation organized under the laws of this State, and was the owner of a line of railway extending from Chicago Junction, in the State of Ohio, to the city of Chicago, in the State of Illinois, and through North township, in Marshall county, in this State; that, by proceedings duly had under the laws of this State, and by purchase, the appellant duly acquired a strip of land, six rods wide, extending through sections 25 and 26, in township 35 north, of range 2 east, in North township, in Marshall county, for the construction and maintenance of its railway track, whereon passengers and freight were transported, and all the traffic usually done upon railways was conducted; that by the laws of this State, the appellant was subjected to great responsibility for the safe carriage of passengers and freight on its railway; that, to fully meet its responsibilities, it was essential that appellant should have the exclusive possession and control of its entire right of way along its track in such sections 25 and 26, for the proper and safe maintenance of its road-bed, the repairs thereof, the maintenance of fences erected between its track and the adjacent lands, which by law it was bound to maintain, as well as for the construction of a second track, sidetracks, switches and station and depot grounds, whenever by [103 Ind. 488] increase of business the same might be demanded; that, at the June term, 1882, of the court below, a petition was presented for the drainage of their lands by the appellees Forsythe and five others, claiming to be the owners of lands in the vicinity of the proposed drainage, which included and affected appellant's right of way; but the appellant averred that it never had any notice whatever of such proposed drainage, or of any proceedings under such petition, and never had any opportunity afforded it to appear and resist the same, so far as its right of way or franchises would or might be affected thereby.

And the appellant further said, that notwithstanding it had no notice of any of the proceedings in the court below, under such petition, the appellee North had directed his co-appellee, Kimball, to proceed upon appellant's right of way in such sections 25 and 26, and to excavate a ditch upon and along its right of way for the distance of about one mile; that the appellee North, as drainage commissioner, claimed and pretended to be acting under an order of court, declaring the proposed work established and directing him to construct the proposed work; that the appellee North claimed to have made an assessment against appellant in the sum of $ 20, but the same was wholly void against appellant, but that he would, if not restrained, seize and sell its personal property to collect such assessment; that if such ditch were constructed on the line established, which the appellee North, and appellee Kimball acting for and under him, were then threatening and attempting to do, it would in effect appropriate, for the benefit of the petitioners for such drainage, the

Page 146

use of lands theretofore appropriated for the exclusive use of appellant in the construction and maintenance of its roadway, without any compensation therefor first assessed and tendered or paid, as required by section 21 of the bill of rights in the Constitution of this State; that the laws under which the appellees were seeking to construct and maintain a ditch, upon appellant's right of way, were unconstitutional and void in [103 Ind. 489] this, that they did not provide appellant a remedy by due process of law for injury to its property in the location and establishment of such ditch; that the proceedings, orders and judgment of the court below, in the matters of such drainage, in so far as they affected appellant, were void and of no effect; that the laws under which...

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48 practice notes
  • 264 F. 546 (E.D.N.C. 1920), 76, Norfolk Southern R. Co. v. Stricklin
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • March 2, 1920
    ...N.J. Law, 328), or land held by a county for the purpose of building a courthouse or a public schoolhouse (B. & O.R.R. Co. v. North, 103 Ind. 486, 3 N.E. 144) or by a state for an institution for the blind (St. Louis R.R. Co. v. Trustees, 43 Ill. 303). In United States v. Chicago, 7 How......
  • 286 S.W. 1035 (Ark. 1926), 95, Kansas City Southern Railway Company v. Sevier County
    • United States
    • Arkansas Supreme Court of Arkansas
    • June 28, 1926
    ...Alvord v. Great Northern Ry. Co., 161 N.W. 467; In re Saratoga Ave. in City of New York, 123 N.E. 197; B. & O. Ry. Co. v. North (Ind), 3 N.E. 144; City of Seymour v. J. M. and I. Ry. Co., 126 Ind. 466; City of Fort Wayne v. Lake Shore Ry. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. R......
  • 111 Cal. 221, 19500, Southern P. R. Co. v. Southern C. R. Co.
    • United States
    • California Supreme Court of California
    • January 31, 1896
    ...v. Lee etc. R. R. Co ., 118 Mass. 391; Boston etc. R. R. Co. v. L. & L. R. R. Co ., 124 Mass. 368; Baltimore etc. R. R. Co. v. North , 103 Ind. 486; Pittsburg etc. R. R. Co.'s Appeal , 122 Pa. St. 511; 9 Am. St. Rep. 128; St. Paul Union Depot Co. v. St. Paul , 30 Minn. 363; Appeal of Sh......
  • 161 N.W. 467 (Iowa 1917), 31402, Town of Alvord v. Great Northern Ry. Co.
    • United States
    • Iowa Supreme Court of Iowa
    • February 19, 1917
    ...purposes inconsistent therewith, without statutory authority for so doing. As said in Baltimore & O. & C. R. Co. v. North, (Ind.) 3 N.E. 144: "The law seems to be well settled that lands once taken for public use cannot, under general laws, without an express act of legislature......
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48 cases
  • 264 F. 546 (E.D.N.C. 1920), 76, Norfolk Southern R. Co. v. Stricklin
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • March 2, 1920
    ...N.J. Law, 328), or land held by a county for the purpose of building a courthouse or a public schoolhouse (B. & O.R.R. Co. v. North, 103 Ind. 486, 3 N.E. 144) or by a state for an institution for the blind (St. Louis R.R. Co. v. Trustees, 43 Ill. 303). In United States v. Chicago, 7 How......
  • 286 S.W. 1035 (Ark. 1926), 95, Kansas City Southern Railway Company v. Sevier County
    • United States
    • Arkansas Supreme Court of Arkansas
    • June 28, 1926
    ...Alvord v. Great Northern Ry. Co., 161 N.W. 467; In re Saratoga Ave. in City of New York, 123 N.E. 197; B. & O. Ry. Co. v. North (Ind), 3 N.E. 144; City of Seymour v. J. M. and I. Ry. Co., 126 Ind. 466; City of Fort Wayne v. Lake Shore Ry. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. R......
  • 111 Cal. 221, 19500, Southern P. R. Co. v. Southern C. R. Co.
    • United States
    • California Supreme Court of California
    • January 31, 1896
    ...v. Lee etc. R. R. Co ., 118 Mass. 391; Boston etc. R. R. Co. v. L. & L. R. R. Co ., 124 Mass. 368; Baltimore etc. R. R. Co. v. North , 103 Ind. 486; Pittsburg etc. R. R. Co.'s Appeal , 122 Pa. St. 511; 9 Am. St. Rep. 128; St. Paul Union Depot Co. v. St. Paul , 30 Minn. 363; Appeal of Sh......
  • 161 N.W. 467 (Iowa 1917), 31402, Town of Alvord v. Great Northern Ry. Co.
    • United States
    • Iowa Supreme Court of Iowa
    • February 19, 1917
    ...purposes inconsistent therewith, without statutory authority for so doing. As said in Baltimore & O. & C. R. Co. v. North, (Ind.) 3 N.E. 144: "The law seems to be well settled that lands once taken for public use cannot, under general laws, without an express act of legislature......
  • Request a trial to view additional results