Indiana Railway Company v. Calvert

• Decision Date: 04 April 1907
• Docket Number: 20,819
• Parties: Indiana Railway Company v. Calvert et al
• Court: Indiana Supreme Court

80 N.E. 961

168 Ind. 321

Indiana Railway Company v. Calvert et al

No. 20,819

Supreme Court of Indiana

April 4, 1907

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by the Indiana Railway Company against William B. Calvert and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

A. L Brick, D. D. Bates and A. G. Graham, for appellant.

F. J Lewis Meyer and Charles P. Drummond, for appellees.

OPINION

Gillett, J.

Action by appellant, owner of an electric street railway, to recover damages occasioned to it by the moving of a house along one of the streets used by said company. The court found the facts specially, and stated a conclusion of law in appellees' favor.

It appears from the findings that at the time of the alleged grievance, and for more than ten years prior thereto, appellant was operating an electric street railway system upon certain of the streets of the city of South Bend, by virtue of a contract with said city. One of the streets thus used was Washington street--an east-and-west street--on which appellant had a double track. At the time in question Washington street was a residence street, but it was much traveled by the public. Appellant operated two lines of cars thereon, the Washington-and Chapin-street car lines. On one of these lines cars ran every fifteen minutes, while on the other they ran every half hour. These lines were much used for local travel, and also by persons having occasion to use two interurban lines, with which appellant's cars made connection near the center of the city. Washington street was forty-five feet wide from curb to curb. The city had undertaken to regulate the matter of house moving for a limited distance along street railway tracks, and, to secure the privilege, an applicant was required to obtain a license from the city clerk, and, on the granting of the same, to give a twenty-four-hour notice to the local agent or manager of the company affected of what was to be done. Upon the applicant's complying with these requirements, the ordinance declared it to be the duty of the company so to raise or remove the wires as to allow the building to pass. Appellees, being desirous of moving a house along Washington street, from its then location on the north side of said street to the next intersecting street--Scott street--and from thence south to its intended place of destination, obtained the license required, and gave a twenty-four-hour notice to the company of their purpose. Upon the expiration of the time, they proceeded to move said house, which was eighteen feet wide, along the north side of Washington street to Scott street, a distance of 200 feet, and at that point the house was moved over appellant's tracks. Appellant refused to comply with the requirement of the ordinance relative to its duty, and, in moving the house, appellees were compelled to loosen four span wires, in order to push the north trolley wire to one side, and, when the house was moved across the tracks, they lifted the trolley wires to pass under. Appellees promptly reattached the span wires, and moved the house without any unnecessary damage to appellant. The court found that the time occupied in doing the work was reasonable. For the space of five hours appellant was required to maintain an extra car on the Washington-street line, to enable passengers to transfer as said obstruction was reached. The court fixed the total loss and expense sustained by appellant by the moving of said house at $ 87.50. The items of loss which the findings enumerate are, an interference with a trip of the company's work-car, on which it had nine employes, a slacking of the north trolley wire, and its connecting bridle work, at certain street intersections to the west, and the expense of operating an extra car on the Washington-street line.

It seems scarcely necessary to say that, if the ordinance is valid, appellant has no standing to complain that a task which was devolved upon it by the ordinance was performed, with due care, by appellees. State v. Flannagan (1879), 67 Ind. 140.

By the act of March 6, 1905 (Acts 1905, pp. 219, 407, § 267, § 3754 Burns 1905), it is provided that every city and town, except when otherwise provided by law, shall have exclusive power over its streets. By § 269 of said act (§ 3756 Burns 1905) every such corporation is given "exclusive power, by ordinance, to control and care for its streets." By the next section (§ 3757 Burns 1905) it is provided that whenever there is a grant of power or authority in the act, and no method is provided for the exercise of such power or authority, the method may be prescribed by ordinance. In substance, the above grants of power with reference to streets are contained in a number of the earlier acts concerning cities. 1 R. S. 1852, p. 215; Acts 1857, p. 42; Acts 1867, p. 33; Acts 1891, p. 122. It was said in Wood v. Mears (1859), 12 Ind. 515, 74 Am. Dec. 222, that the grant to the common council of exclusive power over streets and alleys conferred "upon the common council plenary powers over the streets and alleys of the city." To the same effect see Indianapolis, etc., R. Co. v. State, ex rel. (1871), 37 Ind. 489. In Citizens' Gas, etc., Co. v. Town of Elwood (1888), 114 Ind. 332, 16 N.E. 624, it was said: "Within reasonable limits, the municipal officers have authority to regulate, by general ordinances, the use and occupancy of its streets. The power over streets, vested by our statutes in municipal corporations, is very broad and comprehensive. Language of wider scope than that employed by the legislature in conferring authority over streets and alleys upon our towns and cities could hardly be chosen." In this connection it may be said, as meeting a suggestion of counsel for appellant, that it was held in Wood v. Mears, supra, that the grant of power to prevent the encumbering of streets with materials was not to be construed as a limitation which would prevent the common council from regulating the use of streets for any proper purpose.

The distinction between an attempted authorization permanently to obstruct public streets and the regulation of an occasional and temporary occupation of them for commercial or building purposes is recognized in a number of our cases. Wood v. Mears, supra; Pettis v. Johnson (1877), 56 Ind. 139; State v. Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117; Senhenn v. City of Evansville (1895), 140 Ind. 675, 40 N.E. 69. It was held in Wood v. Mears, supra, that it was competent to authorize by ordinance the partial obstruction of streets, for a reasonable time, with materials designed for use in the construction of adjoining buildings, Worden, J., saying: "The common council having exclusive power over the streets, highways, and alleys within the city, have the right to determine to what purposes they may be applied, and under what circumstances, and to what extent, they may be encumbered. In a populous city, where much business is carried on, and where buildings are being constantly erected, it becomes a matter of necessity that the streets should be used for many purposes other than travel; and it is peculiarly proper that each city should determine for itself what its wants and necessities, in this respect, demand." In connection with the statement of the limitations which attach to the doctrine, this court declared, in the comparatively late case of Senhenn v. City of Evansville, supra, that it did not doubt that the streets and sidewalks of a city "may, when authorized, be temporarily occupied for private purposes."

It is evident, in view of the judicial history of the prior acts concerning cities, that the present act stands deeply impressed with the holdings to which we have referred, and that, unless we can say that the moving of a house along a city street amounts to a use thereof so extraordinary as to be incapable of regulation, it must be held, as within the principle of the decisions of this court, with which, it is to be assumed, the General Assembly was familiar, that the act in question gave to the common council the power reasonably to regulate the use of its streets for such purposes.

A leading writer upon the law of nuisance says: "Indeed, it may be stated generally as the law, that any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade, or erection of buildings that does not unnecessarily or unreasonably obstruct the same, is lawful." 1 Wood, Nuisances (3d ed.), § 256.

Apart from any question of municipal authorization it would appear that the question whether the moving of a house along a public street creates a nuisance depends upon the circumstances. As was said in Graves v. Shattuck (1857), 35 N.H. 257, 69 Am. Dec. 536: "The first and principal design of highways is an accommodation of the public travel, and cities and towns are required by statute to construct and maintain them in suitable condition for that purpose; but they may lawfully be used for other purposes, provided such use be not inconsistent and incompatible with the reasonably free passage over them of whoever has occasion to travel upon them. They are designed and constructed for the general convenience of mankind, to be used for all those purposes to which from the earliest period of their construction they have been accustomed to be appropriated, and it cannot be a nuisance for anyone to use them as they have been ordinarily used. Very much depends upon locality, the width of the highway, and the time it may be obstructed by the alleged nuisance."

While it would, no doubt, be competent for a municipality to prohibit the moving of houses along its streets, at least in populous districts, yet where the undertaking, if done with...