Cincinnati , W.&M. Ry. Co. v. City of Anderson
| Decision Date | 27 September 1894 |
| Citation | 139 Ind. 490,38 N.E. 167 |
| Court | Indiana Supreme Court |
| Parties | CINCINNATI, W. & M. RY. CO. v. CITY OF ANDERSON. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Delaware county; O. J. Lotz, Judge.
Action by the Cincinnati, Wabash & Michigan Railway Company against the city of Anderson for an injunction. There was a judgment for defendant, from which plaintiff appeals. Reversed.
C. E. Cowgill, for appellant. F. P. Foster and H. C. Ryan, for appellee.
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 60 feet deep, 80 feet long in front, and 140 feet long in the rear. In front of this building was a turntable, 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 timber and lumber, the same being 23 feet wide by 86 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, turntable, and roundhouse. 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 the 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, turntable, and roundhouse could have been located, and, with changes in some of the side tracks mentioned, could have been used as conveniently and practically 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 it 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 practically 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 cannot 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 & W. Ry. Co. v. Town of Boswell, 137 Ind. 336, 36 N. E. 1103;City of Ft. Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 N. E. 215;City of Seymour v. Jeffersonville, M. & I. R. Co., 126 Ind. 466, 26 N. E. 188;City of Valparaiso v. Chicago & G. T. Ry. Co., 123 Ind. 467, 24 N. E. 249; Railroad Co. v. Williamson, 91 N. Y. 552;In re City of Buffalo, 68 N. Y. 167;In re Boston & A. R. Co., 53 N. Y. 577; Railroad Co. v. Bronnell, 24 N. Y. 345;Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167; Railroad Co. v. Muder, 49 Mo. 165;Mohawk & H. R. Co. v. Artcher, 6 Paige, 83;St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359, 15 N. W. 684; New Jersey Southern R. Co. v. Long Branch Com'rs, 39 N. J. Law, 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 turntable, 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 Cent. & H. R. R. Co., 77 N. Y....
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