Chicago, Indianapolis and Louisville Railway Company v. Johnson
| Citation | 90 N.E. 507,45 Ind.App. 162 |
| Decision Date | 13 January 1910 |
| Docket Number | 6,842 |
| Parties | CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY v. JOHNSON ET AL |
| Court | Indiana Appellate Court |
From Lawrence Circuit Court; James B. Wilson, Judge.
Action by Mary Johnson and others against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for plaintiffs, defendant appeals.
Reversed.
E. C Field, H. R. Kurrie, Brooks & Brooks, for appellant.
Henry P. Pearson, M. F. Dunn, Robert N. Palmer and M. B. Hottel for appellees.
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 defendant is a duly organized corporation; that at the time the complaint was filed and for at least five years prior thereto, it had operated a steam railroad extending from Louisville, Kentucky, to Chicago, Illinois, and through the corporate limits of the city of Bedford, Lawrence county, Indiana, and along J street in said city; that said street is sixty feet wide, and its course is north and south; that the plaintiffs are the owners of a lot abutting on said street for a distance of 180 feet; that for many years prior to November, 1905, said railroad ran upon said street in front of said lot, which is on the east side thereof; that 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 defendant, in November, 1905, without leave or license, payment or tender of damages to appellees, moved its track, ties, roadbed and rails thirteen feet east, whereby four feet of the same was placed on the east side of the center of said street, gradually bearing west, until at a distance of seventy-two feet it was again upon the west side thereof; that it lowered the grade two and one one-hundredths feet, said grade being reduced gradually toward the south to eight inches at the south end of plaintiffs' real estate; that plaintiffs 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; that said embankment was from seven to ten feet at its extreme height; that there was a comparatively level space on top of said embankment in the street in front of plaintiffs' 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 plaintiff's lot, 180 feet, which walk cost and was worth $ 90; that for the protection of said bank, and to keep it from sliding, plaintiff had planted shrubbery and blue grass thereon, which effected said purpose; that there was also a fence along the west side of said premises; that the lot was level and was covered with grass and flowers; that 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 plaintiffs' lot was destroyed; that defendant excavated and took away the earth in said embankment, most of which belonged to plaintiffs, whereby the earth was caused to slip and wash away, injuring plaintiffs' buildings, more particularly the walks to 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 plaintiffs' 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; that during all 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 defendant appropriate the land occupied by its new roadbed without permission, without payment or tender of payment therefor, and over plaintiffs' objection, and that it has abandoned the strip of land formerly used by it; that the embankment between plaintiffs' lot and the railroad track was necessarily cut down to permit the relocation of said track; that the defendant built a concrete wall in front of plaintiffs' lot, from four to six feet high, two feet wide at the top and four to six feet wide at the base, at a cost of $ 1,164.95, which was all built on the east side of J street on plaintiffs' land, without payment or compensation therefor; that it was erected for defendant'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; that there was no public improvement of said street in front of plaintiffs' 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 street west of plaintiff's lot; that the ordinance provided that the defendant should immediately proceed with the lowering of its track over that part of said street to conform to such grade; that the defendant was by said ordinance ordered and required to reduce the grade of its tracks until it conformed to said grade; that 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 said defendant, on June 21, 1905, entered into a contract, by the terms of which defendant 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; that as a consideration for this change in the alignment of its tracks it was relieved from any assessment on account of said improvement; that on September 6, 1905, said city, by ordinance, gave to defendant permission, authority, power and right to move its roadbed and track on J street, as heretofore described; that the contract for said improvement was let and the work completed and accepted, and the defendant performed its contract as aforesaid; that 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. § 8696 Burns 1908, subd. 5, Acts 1905, p. 219, § 93, § 3542 Burns 1901, Acts 1891, p. 368. The circumstance that a railway occupies a part of a street, the grade of which the municipality desires to establish or change, does not take away the power possessed by it to regulate such grade. State, ex rel., v. Indianapolis Union R. Co. (1903), 160 Ind. 45, 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 of lots have no right to compensation for consequential damages to their lots, unless expressly given by statute." Snyder v. President, etc. (1855), 6 Ind. 237, 241. See, also, City of Valparaiso v. Adams (1890), 123 Ind. 250, 24 N.E. 107; Keehn v. McGillicuddy (1896), 15 Ind.App. 580, 44 N.E. 554; City of Jeffersonville v. Myers (1891), 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 that 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, etc., R. Co. (1856), 9 Ind. 467; Egbert v. Lake Shore, etc., R. Co. (1893), 6 Ind.App. 350, 68 Am. Dec. 650, 33 N.E. 659; Indianapolis, etc., R. Co. v. State, ex rel. (1871), 37 Ind. 489. In the case of Protzman v. Indianapolis, etc., R. Co., supra, the railroad company elevated the grade of the street and put its track thereon. In the case of Egbert v. Lake Shore, etc., R. Co., supra, the railroad company, as a part of its general system of improving its roadbed, raised the grade along its right of way, making it necessary to fill in to make approaches for a street crossing, and interfering with the ingress to and the egress from the land of an adjoining owner. In the case of Indianapolis, etc.,...
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