The Cincinnati, Wabash and Michigan Railway Company v. The City of Anderson

• Decision Date: 27 September 1894
• Docket Number: 16,857
• Citation: 38 N.E. 167,139 Ind. 490
• Parties: The Cincinnati, Wabash and Michigan Railway Company v. The City of Anderson
• Court: Indiana Supreme Court

38 N.E. 167

139 Ind. 490

The Cincinnati, Wabash and Michigan Railway Company v. The City of Anderson

No. 16,857

Supreme Court of Indiana

September 27, 1894

Petition for a Rehearing Overruled Dec. 20, 1894.

From the Delaware Circuit Court.

The judgment is reversed.

C. E Cowgill, J. T. Dye, B. K. Elliott and W. F. Elliott, for appellant.

F. P Foster and H. C. Ryan, for appellee.

OPINION

Hackney, C. J.

This was a suit by the appellant to enjoin the extension of Seventh street, in said city, from the east line of the appellant's right of way westward across the main track, and five side tracks in appellant's yards. Within said yards were an engine house of brick and stone, containing six stalls, and being sixty feet deep, eighty feet long in front, and one hundred and forty feet long in the rear; in front of this building was a turn table from which there were six tracks extending into said engine house, and connecting with six stalls therein. In said yards was also a water tank from which locomotives were supplied with water, and also a coal dock, constructed from timbers and lumber, the same being twenty-three feet wide by eighty-six feet in length, and from which the locomotives of the appellant were supplied with coal. The various side tracks within said yards were used for the storage of freight and passenger cars, and for making up trains, and for reaching said water tank, coal dock, turn table and round house. Said engine house was not large enough for the business of the company, and additions were contemplated.

To extend said street as projected would not only inconvenience the appellant in the use of its yards, by meeting the uses of the street by the public and increasing the hazards of its business, but it would take within the lines of said street two of the stalls of said roundhouse and a considerable portion of said coal dock, and would not permit the use of said water tank without encroaching upon said street slightly. Immediately south of the projected street parallel with said tracks and a part of said yard the appellant owned ground upon which such water tank, coal dock, turn table and round house could have been located, and with changes in some of the side tracks mentioned could have been used as conveniently and practicably with the same advantages, excepting the necessity of keeping said projected extension free from standing cars, and the said added hazards by reason of the crossing and recrossing by the public of the appellant's said tracks.

That the uses for which the appellant employed the strip proposed to be taken for the street crossing, were of a public character, and that they could not be appropriated to the uses of a public street, if to do so would destroy or become inconsistent with the purposes for which they were so employed, is conceded by the parties.

The question upon which the controversy hinges, and upon which counsel have placed the case in argument, is this: Can these buildings and structures be destroyed and removed from their fixed location, and their use, where situated, be entirely thwarted, and their location applied to a new public use upon the showing that they may be rebuilt and conveniently and practicably used for the same purposes on other land of the company near to that now occupied?

Under the general law permitting cities to establish streets, we have no doubt of the implied power to extend streets transversely across the right of way of a railroad when in doing so the uses for which such right of way is employed are not materially injured or destroyed, and where such uses and those for a street may coexist without impairment of the first uses. But where such uses can not so coexist, or where the first use is materially impaired or destroyed, it is well settled in this State and elsewhere that the second public use will be denied. Lake Erie, etc., R. W. Co. v. Town of Boswell, 137 Ind. 336, 36 N.E. 1103; City of Ft. Wayne v. Lake Shore, etc., R. W. Co., 132 Ind. 558, 32 N.E. 215; City of Seymour v. Jeffersonville, etc., R. R. Co., 126 Ind. 466, 26 N.E. 188; City of Valparaiso v. Chicago, etc., R. W. Co., 123 Ind. 467, 24 N.E. 249; Prospect Park, etc., R. R. Co. v. Williamson, 91 N.Y. 552; In re City of Buffalo, 68 N.Y. 167; In re Boston, etc., R. R. Co., 53 N.Y. 574; Albany, etc., R. R. Co. v. Brownell, 24 N.Y. 345; Milwaukee, etc., R. W. Co. v. City of Faribault, 23 Minn. 167; Hannibal, etc., R. R. Co. v. Muder, 49 Mo. 165; Mohawk, etc., R. R. Co. v. Artcher, 6 Paige, 83; St. Paul, etc., Co. v. City of St. Paul, 30 Minn. 359, 15 N.W. 684; New Jersey, etc., R. W. Co. v. Long Branch Comrs., 39 N.J.L. 28.

At the point of the crossing of the projected extension of Seventh street and the right of way of the appellant, there are other public uses existing than the mere maintenance of tracks for the transportation of passengers and freight or the storage of cars and the making up of trains. The turn table, the water tank, the engine house, the coal dock, are each and all not only generally essential to the business and successful operation of a line of railway, but in this instance they were made to serve two divisions of railway, each having a terminus at the city of Anderson, where locomotives were supplied with coal and water, and were housed when not in service. Not only were they essential, but it is not even suggested that they could be dispensed with. That they were of themselves, when connected with the operation of the railway, public uses, not only appears from their necessity to the successful operation of a railway, but from the numerous cases holding that for such uses real estate may be condemned and appropriated under general laws for the appropriation of real estate to railway uses. In re New York, etc., R. R. Co., 77 N.Y. 248 (for freight and warehouses); Low v. Galena, etc., R. R. Co., 18 Ill. 324 (paint shops, lumber and timber sheds); Hannibal, etc., R. R. Co. v. Muder, supra, and Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123 (depot, engine house and repair shops); In re New York, etc., R. R. Co., v. Kip, 46 N.Y. 546 (depots, car sheds,...