Chicago, I.&L. Ry. Co. v. Johnson

• Decision Date: 13 January 1910
• Docket Number: No. 6,842.,6,842.
• Citation: 45 Ind.App. 162,90 N.E. 507
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. JOHNSON et al.

45 Ind.App. 162

90 N.E. 507

CHICAGO, I. & L. RY. CO.

v.JOHNSON et al.

No. 6,842.

Appellate Court of Indiana, Division No. 2.

Jan. 13, 1910.

Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

Action by Mary Johnson and others against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.E. C. Field, H. R. Kunie, and Brooks & Brooks, for appellant. Henry P. Pearson, M. F. Dunn, R. N. Palmer, and M. B. Hottel, for appellees.

ROBY, J.

Appellees were plaintiffs, and recovered judgment, from which the appeal is taken. The circuit judge upon request made a special finding of facts, and stated conclusions of law thereon. The appellant excepted to the conclusions and unsuccessfully moved for a new trial. The facts are conceded to be found in accordance with the evidence. They are to the effect: That the appellant is a duly organized corporation operating at the time the complaint was filed, and for at least five years prior thereto, a steam railroad extending from Louisville, Ky., to Chicago, Ill., and through the corporate limits of the city of Bedford, Lawrence county, Ind., and along J street in said city. Said street is 60 feet wide, and its course is north and south. The appellees are the owners of a lot abutting on said street a distance of 180 feet. For many years prior to November, 1905, said railroad ran over said street in front of said lot which is on the east side thereof. The track was wholly on the west of the center of said street, and did not touch “that portion of said real estate owned by plaintiffs in fee simple, to wit, the east half of said street.” That defendant never paid or offered to pay plaintiffs anything by way of damages or compensation for the occupancy or use of said street. That the appellant in November, 1995, without leave or license or payment or tender of damages to appellees, moved its track, ties, roadbed, and rails 13 feet east, whereby 4 feet of the same was placed on the east side of the center of said street, gradually bearing west until at a distance of 72 feet it was again upon the west side thereof. That it also lowered the grade 2.01 feet, said grade being reduced gradually toward the south to 8 inches at south end of plaintiffs' real estate. That appellees had erected, long before, a large two-story frame residence on said real estate at a cost of $2,800. That the surface of said lot was considerably higher than the street. That there was an embankment west of the east side of the street making a rounded approach of earth from near the track to the street line. Said embankment was at its extreme height 7 to 10 feet. There was a comparatively level space on top of said embankment in the street in front of appellees' property used for street purposes and occupied prior to the change of track aforesaid by a substantial sidewalk of stone flagging running the whole length of appellees' lot-108 feet- which walk cost and was worth $90. That for the protection of said bank, and to keep it from sliding, appellees had planted shrubbery and blue grass thereon which effected said purpose. There was also a fence along the west side of said premises. The lot was level, and was covered with grass and flowers. All of said improvements were made with reference to the conditions existing prior to the change of track aforesaid. That by reason of the change of said track the natural support of the ground adjacent to appellees' lot was destroyed. That appellant excavated and took away the earth in said embankment, most of which belonged to appellees, whereby the earth was caused to slip and wash away, injuring appellees' buildings, more particularly the walks of said dwelling house. That the sidewalk was washed away and destroyed. That the walls of said house were cracked and weakened, causing the plastering to fall off, cracking the flues, and increasing the vibration caused by the jar of the passing trains. That appellees' lot was worth $4,000 before the change of said track and street and thereafter because of the injury thereto as set out was worth $1,800. That the defendant's railroad was constructed in 1855; during all of the time prior to the change aforesaid it has been on the west side of the center of said street, and has never encroached on any part of the lot east of the center thereof. That the appellant appropriated the land occupied by its new roadbed without permission, without payment or tender of payment therefor, and over appellees' objection, and that it has abandoned the strip of land formerly used by it. That the embankment between the appellees' lot and the railroad track was necessarily cut down to permit the relocation of said track. That the appellant built a concrete wall in front of appellees' lot, the same being made from 4 to 6 feet high, 2 feet wide at the top and 4 to 6 feet at the base at a cost of $1,164.95, which was all built on the east side of J street on appellees' land without payment or compensation therefor. It was erected for appellant's benefit and to prevent the washing and slipping and sliding of said embankment down upon its roadbed. That since the construction of said wall said embankment has ceased to slip. There was no public improvement of said street in front of appellees' lot ordered by said city. It is further found that an ordinance of said city passed February 21, 1905, established a grade for J street including that part of the same west of appellees' said lot. The ordinance provided that the appellant should immediately proceed with the lowering of its track over that part of said street to conform to such grade. The appellant was by said ordinance ordered and required to reduce the grade of its tracks until it conformed to said grade. The city desired to improve J street by the construction of a vitrified pavement from the north line of Seventeenth street. That between said points there were many curves in appellant's track. That in order to make and maintain said improvement it was necessary that the track be straightened and its grade lowered. That in order to have this done said city and appellant on June 21, 1905, entered into a contract by the terms of which appellant agreed to straighten its tracks between said points, conform to said grade, remove a switch track which it had between Fourteenth and Fifteenth streets, and to construct a part of said improvement, making the change of track and grade at its own expense; as a consideration for this change in the alignment of its tracks it was relieved from any assessment on account of said improvement. On September 6, 1905, said city by ordinance gave to appellant consent, permission, authority, power, and right to move its roadbed and track in J street, as heretofore described. The contract for said improvement was let and the work completed and accepted, and the appellant performed its contract as aforesaid. The change of grade and the change of location of the track were necessary to the making of said improvement by the city.

The regulation of the grade of its streets by a city is an exercise of police power, and such power is vested in the municipality by legislative enactment, either express or necessarily implied. Express authority in that behalf is conferred upon cities in this state. Acts 1905, p. 254, c. 129; Acts 1891, p. 368, c. 103. The circumstance that a railway occupies a part of a street, the grade to which the municipality desires to establish or change, does not take away the power possessed by it to regulate such grade. State v. Indianapolis Union R. Co., 160 Ind. 45, 66 N. E. 163, 60 L. R. A. 831. Appellant did that which the city had a right to require, and its relation to the lot owners will have to be determined in view of that fact. “Where a street is graded pursuant to legal authority and in a careful manner, the adjoining owners have no right to compensation unless it is given by statute.” Snyder v. President & Trustees of Town of Rockport, 6 Ind. 237, 241;City of Valparaiso v. Adams, 123 Ind. 250, 24 N. E. 107;Keehn v. McGillicuddy et al., 15 Ind. App. 580, 44 N. E. 554;City of Jeffersonville v. Myers et al., 2 Ind. App. 532, 28 N. E. 999.

Appellant insists that in cutting down the natural surface of the street to an established grade it is no more liable for damages than the city itself would be. The fact the change was made without coercion on the part of the city does not militate against this position. It is the undoubted law that the city cannot delegate its authority to the railroad company. “The council cannot authorize a railroad company to take or injure the property of a citizen.” Protzman v. Indianapolis & Cincinnati R. R. Co., 9 Ind. 467, 68 Am. Dec. 650;Egbert et al. v. Lake Shore, etc., R. Co., 6 Ind. App. 350, 33 N. E. 659;Indianapolis, etc., R. Co. v. State ex rel.,...