Burkam v. Ohio And Mississippi Railway Company

• Decision Date: 28 February 1890
• Docket Number: 13,736
• Parties: Burkam v. The Ohio and Mississippi Railway Company et al
• Court: Indiana Supreme Court

23 N.E. 799

122 Ind. 344

Burkam v. The Ohio and Mississippi Railway Company et al

No. 13,736

Supreme Court of Indiana

February 28, 1890

From the Dearborn Circuit Court.

Judgment affirmed.

J. K Thompson, for appellant.

H. D McMullen, W. R. Johnston, W. N. Hauck, G. N. Roberts and C W. Stapp, for appellees.

OPINION

Elliott, J.

The appellant seeks by his complaint the abatement of a nuisance by the removal of a railroad track from William street, in the city of Lawrenceburgh, and also to obtain an injunction and to recover damages.

The trial court admitted evidence tending to prove that the appellant consented to the occupancy of the street, and assisted in making the fill upon which the track was laid. This evidence was clearly competent. An abutting owner who expressly consents to the occupancy of a street can not afterwards ask a court to enjoin the use of the street or award him damages. Wolfe v. Covington, etc., R. R. Co., 54 Ky. 404, 15 B. Mon. 404; Marble v. Whitney, 28 N.Y. 297; Murdock v. Prospect Park, etc., R. R. Co., 10 Hun 598. In Marble v. Whitney, supra, the court, in speaking of the consent of the plaintiff to a change in a highway, said: "The plaintiff's consent was not a license which he could revoke after the alteration was made. Commissioners of highways may act upon the parol consent of the owner in laying out or altering a highway across his lands; and although such consent may be revoked, it must be done before the road is laid out or the alteration made. If the commissioners act immediately on the faith of the virtual consent, by laying out the road or making the alteration, he will be estopped from denying the legality of the act. In People v. Goodwin, 1 Seld. 568, it was held that a parol consent was sufficient, and if not revoked before the commissioners acted on the faith of it was irrevocable."

The liability of the appellee, the city of Lawrenceburgh, depends upon different rules from those upon which the liability of the railroad company depends, and we shall first dispose of the branch of the case involving the liability of the city.

We have no doubt that an abutting owner has a proprietary right in the street of which he can not be deprived without compensation. State v. Berdetta, 73 Ind. 185, and cases cited; Ross v. Thompson, 78 Ind. 90; City of Indianapolis v. Kingsbury, 101 Ind. 200; Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761. But it by no means follows from this that a city in granting a right to a railroad company to use a street deprives the abutter of his property. The grant by the municipal corporation transfers no proprietary rights of the abutter, it simply grants the privilege the city has power to grant. In granting such a privilege a city exercises a power delegated to it by the sovereign, and it is not liable for exercising such a power. Port of Mobile v. Louisville, etc., R. R. Co., 84 Ala. 115 (5 Am. St. Rep. 342, 4 So. 106). Notwithstanding the grant by the municipality, the abutting owner has a right to recover such damages as he may have sustained by the additional burden imposed upon his land. White v. Chicago, etc., R. R. Co., ante, p. 317. But the right of the abutter to compensation is against the railroad company, and not against the city.

It is true that where the grade of a street is changed the abutter is entitled to such damages as he sustains. City of Lafayette v. Wortman, 107 Ind. 404. But while this is true it is also true that where there are no damages there can be no recovery. There can be no recovery where there are no substantial damages shown, for the right to recover damages is purely statutory,...