Baltimore & O.S.W.R. Co. v. State ex rel. Greenwood

• Decision Date: 25 November 1902
• Citation: 159 Ind. 510,65 N.E. 508
• Parties: BALTIMORE & O. S. W. R. CO. v. STATE ex rel. GREENWOOD.
• Court: Indiana Supreme Court

159 Ind. 510

65 N.E. 508

BALTIMORE & O. S. W. R. CO.

v.STATE ex rel. GREENWOOD.

Supreme Court of Indiana.

Nov. 25, 1902.

Appeal from circuit court, Daviess county; H. Q. Houghton, Judge.

Mandamus by the state, on the relation of John W. Greenwood, trustee of Washington township, Daviess county, against the Baltimore & Ohio Southwestern Railroad Company to compel respondent to construct a highway crossing across its right of way. From a judgment awarding the writ, respondent appeals. Affirmed.W. R. Gardiner, C. G. Gardiner, T. D. Slimp, and Edward Barton, for appellant. Ogdon & Inman and Hefron & Harrington, for appellee.

JORDAN, J.

The state, on the relation of John W. Greenwood, trustee of Washington township, Daviess county, Ind., prosecuted this action in the lower court to secure a writ of mandamus to compel appellant to put a certain described public highway at a point where it crosses the right of way of appellant's railroad in a condition so as to enable the public to safely use the same at the said crossing without interference. A trial upon the issues joined resulted in appellee being awarded a peremptory writ of mandamus commanding appellant to make and put the said highway at the said crossing of appellant's right of way in such a condition as will enable the public to freely use the highway at that point, and so as to afford security to life and property. The errors assigned are predicated on the decisions of the court in overruling a demurrer for insufficiency of facts to the alternative writ, in overruling a motion to quash the same, and in denying a motion for a new trial. The facts as set out in the petition and in the alternative writ appear to be as follows: Appellant owns and operates a railroad running from Parkersburg, W. Va., to St. Louis, Mo. This road, on its route, runs through Washington township, Daviess county, Ind. In the year 1898, and prior thereto, and at the time the highway herein involved was established and laid out, this railroad was owned and operated by a railroad company known as and denominated the “Baltimore, Ohio & Southwestern Railroad Company,” which, as alleged, was incorporated under the laws of the state of Indiana. At the September term, 1898, of the board of commissioners of Daviess county, Ind., proceedings before said board appear to have been properly instituted for the location and establishment of a certain public highway proposed to be located through a portion of Washington township in said county, and across and over the right of way of said railroad company in said Washington township. Notice, as prescribed by the highway statute, seems to have been given in respect to the pendency of said proceedings before the board; and such steps appear to have been taken therein as resulted in the board of commissioners at its December term, 1898, ordering said highway to be established, laid out, and opened as located by the viewers over and across the several tracts of land mentioned, including appellant's right of way herein involved. After the board of commissioners had made the final order establishing the highway as laid out and located, and subsequent to the opening of and putting the highway, by the proper officials, in a condition for travel thereon, except as to that part thereof which crosses the right of way in question, appellant, by and through certain proceedings had in the federal court, and by virtue of certain transfers, succeeded to all the rights, titles, franchises, privileges, and property of the above-mentioned company. At the time of said succession it had full knowledge of the location and establishment of the highway across the right of way of its predecessor at the particular crossing in dispute. Appellant's predecessor, it appears, was made a party to said highway proceedings, but had no actual notice of their pendency, and in fact had no notice save and except the constructive notice provided for by the statute. As to which particular method of giving the notice prescribed by the statute-whether by publication in a newspaper, or by posting notices in public places in the vicinity of the proposed highway-was employed, is not clearly disclosed. Appellant's predecessor, however, it appears, wholly failed to appear in said proceedings and filed no remonstrance, and made no claim therein for damages by reason of the proposed highway being located across its right of way at the intersection in controversy. The relator is shown to have been duly elected, at the general election held in November, 1900, trustee of said Washington township, and duly qualified as such official, and was so acting at the time this action was instituted. At the time the highway in dispute was established and laid out, there was a high embankment on appellant's right of way at the point where it was crossed by the highway, and this embankment was used by appellant's predecessor as a roadbed at that point. The top of this embankment was 10 feet above the level of the highway, and above the general level of the ground in the vicinity thereof on the north and south of said right of way. This embankment, as maintained by the railroad company, obstructs the highway at the point where it and the right of way cross each other, and prevents the highway from being used by the public at said crossing, and so interferes with travel thereon at said crossing as to render the highway at that point of no use as a public road. After the establishment and opening of the highway, as heretofore stated, it is disclosed that appellant, in the year 1900, further elevated this embankment on its right of way at the point of intersection, so as to make the height thereof at least 18 feet above the level of the highway, by dumping or placing thereon large quantities of earth and gravel, and said elevation was extended to the distance of 100 yards and more, and serves to and does wholly prevent the free use of the highway by the public at said crossing. After this embankment was raised or elevated as shown, it resulted in rendering the approaches of the highway to the railroad crossing so steep and high as to wholly debar or prevent the public from using the road at this railroad crossing. By reason of the condition in which appellant's railroad has been constructed and is maintained by it at the point where it intersects the highway, no security is afforded for the life and property of persons traveling over the highway at said railroad crossing. After the establishment and opening of this public road as previously shown, and before the commencement of this action, it appears that the proper township trustee duly notified the appellant of the condition of its said right of way at the crossing of the highway, and requested and demanded that it proceed to put the crossing in question in such a condition as would enable the public to freely and safely use the highway at the crossing; with all of which demands appellant refused to comply, and still refuses.

Appellant's first contention is that there is no legal relator shown in this prosecution, for the reason that the trustee named is described or designated in the pleading as the trustee of Washington civil township, instead of the trustee of Washington township; second, that the petition is not shown to have been legally verified, for the reason that the affidavit thereto was made by Greenwood in his individual capacity, instead of his official. But the relator is shown to be the trustee of Washington township, and as such he is certainly appearing and acting herein as the trustee of the civil township, and not of the school township. The law recognizes that there are two corporations within the territory included within Washington township. One is “Washington township of Daviess county,” and the other is “Washington school township.” The first is known as the “civil township,” and the other as the “school township,” organized for school purposes. This distinction is made by the statutes pertaining to our common schools, and has been repeatedly recognized by the decisions of this court. Carmichael v. Lawrence, 47 Ind. 554;Jackson Tp. v. Home Ins. Co. of Columbus, Ohio, 54 Ind. 184;Wilcoxon v. City of Bluffton, 153 Ind. 267, 54 N. E. 110. While not necessarily required in this case, nevertheless it was proper for the relator to designate himself as trustee of Washington civil township of Daviess county, Ind. The word “civil” might have been omitted without detriment to the petition. In respect to the second contention it may be said that under section 1183, Burns' Rev. St. 1901, the affidavit in verification of the application or petition for the writ of mandate was not required to be made by the relator in his official capacity. The petition may be verified by any person competent to make an affidavit.

It is next insisted that the petition and alternative writ are uncertain in not specifying the character of the notice given in the highway proceedings. It is alleged in the petition and alternative writ herein “that due and legal notice of the filing and pendency of said petition and application for the location and establishment of said highway and of the time and place set for hearing the same was duly given to said *** Baltimore & Ohio Southwestern Railway Company, as required by the statute in such cases made and provided.” It is insisted that this is too uncertain, for the reason that it is not disclosed thereby which method of giving the notice prescribed by section 6742, Burns' Rev. St. 1901, was employed,-whether by posting notices in three public places in the vicinity of the proposed highway, or by publication in a newspaper. But the facts, however, do show that the highway in controversy was, by the board of commissioners of Daviess county, at its regular session, ordered to be established, laid out, and opened...