Baltimore & O.&C.R. Co. v. North

• Citation: 103 Ind. 486,3 N.E. 144
• Court: Supreme Court of Indiana
• Decision Date: 04 November 1885
• Parties: Baltimore & O. & C. R. Co. v. North and others.

103 Ind. 486

3 N.E. 144

Baltimore & O. & C. R. Co.

v.North and others.¹

Supreme Court of Indiana.

Filed November 4, 1885.

Appeal from Marshall circuit court.

Henry Newbegin, B. B. Kingsbury, and M. A. O. Packard, for appellant.

H. Corbin and Parks & Parks, for appellees.

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 N., of range 2 E., 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 the road-bed, the repairs thereof, the maintenance of fences erected between its tracks and the adjacent lands, which by law it was bound to maintain, as well as for the construction of a second track, side tracks, switches, and station and depot ground, whenever, by 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 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 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 matter of such drainage, in so far as they affected appellant, were void and of no effect; that the laws under which such proceedings and orders were had were in contravention of section 1 of article 14 of the amendments of the constitution of the United States, in this: that such laws by their operation seek to deprive appellant of its property without due process of law, and to deny it, with respect to its property, the equal protection of the law; and further permit the appellees, by acting under color of such laws, to deprive appellant of its property without due process of law, which, under such orders of the court, the appellees were about to and would do if not restrained by the court.

And the appellant further alleged that such intended and threatened appropriation of appellant's lands, under color of such drainage proceedings, was wholly unnecessary for the purpose of the proposed drainage, as prayed for; that the construction of such ditch, under the proceedings aforesaid, would deprive appellant of the exclusive possession and control of its right of way through the aforesaid sections 25 and 26, and would subject appellant to increased liability and additional burdens, inconsistent with the proper discharge of its duties and liabilities under the laws of this state, and for which no compensation was or could be made under the provisions of the drainage laws of the state; that the construction of such ditch would bring upon appellant's right of way an increased flood of water, endangering its road-bed; that the repairs of such ditch would be under the control of officials over whom appellant could have no control or supervision, and the divided control and supervision of such right of way would prove detrimental to appellant's interests so long as such ditch should be maintained thereon; that such ditch, whether constructed on the located route or some route adjacent thereto, would be of no benefit whatever to appellant's right of way or track; that it was not competent, under any form of proceeding for the establishment of a ditch along or near the line of its road, to charge against appellant any benefits or assessments for a supposed special benefit accruing to it from the construction thereof; that, under its obligation to keep up a safe and proper roadway, appellant was and would be compelled to construct and maintain all ditches and drains necessary or useful for that purpose; and that the laws of this state concerning drainage did not provide any equitable basis of assessment against the property of the appellant, and were therefore invalid.

Wherefore, the appellant prayed for a temporary order restraining the appellees, the drainage commissioners, and those acting under them, from proceeding further in the construction of the proposed ditch on and along its right of way, and further restraining appellee North from attempting to collect any assessment whatever against appellant, and further restraining all the other appellees from further proceedings, by amendment or otherwise in such drainage proceedings, to construct such ditch on and along appellant's right of way; that such proceedings and orders might be declared void and of no effect, in so far as appellant's rights were concerned; and that, upon final hearing, the injunction against the establishment of any ditch on and along appellant's right of way, under color of such drainage proceedings, might be made perpetual, and for other proper relief.

The appellees, the drainage commissioners, demurred to appellant's complaint upon the following grounds of objection: (1) The court had no jurisdiction of the persons of the appellees, nor of the subject of the action, (2) the complaint does not state facts sufficient to constitute a cause of action; and (3) several causes of action had been improperly joined. The second of these grounds of demurrer, namely, that the complaint does not state sufficient facts, presents the questions discussed by the learned counsel of the appellant in their able and exhaustive brief of this cause. The questions thus presented are stated by counsel substantially as follows: First, it is directly charged in the complaint, and admitted by the demurrer, that the plaintiff had no notice or knowledge even of the pendency of the ditch proceeding; second, the law under which such ditch proceedings were had is in contravention of the first clause of section 12 and the last clause of section 21 of the bill of rights in our state constitution; third, the law in question is also repugnant to section 1 of article 14 of the constitution of the United...