Chicago & E.R. Co. v. Luddington

• Decision Date: 16 December 1910
• Docket Number: No. 21,541.,21,541.
• Citation: 175 Ind. 35,93 N.E. 273
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. LUDDINGTON et al.

175 Ind. 35

93 N.E. 273

CHICAGO & E. R. CO.

v.LUDDINGTON et al.

No. 21,541.

Supreme Court of Indiana.

Dec. 16, 1910.

On petition for rehearing. Petition overruled.

For former opinion, see 91 N. E. 939.

Johnston & Bartholomew, U. Z. Wiley, A. H. Jones, W. O. Johnson, A. C. Harris, H. R. Kurrie, J. B. Peterson, and Stuart, Hammond & Simms, for appellant. H. H. Loring, for appellees.

MONKS, J.

Appellant concedes in its petition for a rehearing that the duty of railroads as to highway crossings, whether established before or after the railroad was built, was correctly stated in the opinion of the court, but insists that the duty of railroads as to public drains where the railroad crosses said public drain is not now the same as it is at highway crossings, because said common law was changed as to such drain crossings by section 3 of the drainage law of 1907 (Acts 1907, p. 513), being section 6142. Burns' Ann. St. 1908. The part of said section necessary to the determination of this question requires the drainage commissioners to “assess the benefits or damages, as the case may be, to each separate tract of land to be affected thereby and to easements held by railway or other corporations as well as to cities, towns or other public or private corporations, including any land, rights, easements or water power injuriously or beneficially affected and to report to the court under oath as directed.” Substantially the same provision in regard to assessing the “benefits or injury” to easements held by railroads was contained in section 3 of the drainage law of 1881 (Acts 1881, p. 399), being section 4275, Rev. St. 1881, and in section 3 of the drainage law of 1885 (Acts 1885, p. 133), being section 5624, Burns' Ann. St. 1894. There is nothing in said drainage laws of 1881, 1885, and 1907 that in plain and unequivocal terms in any way affects, changes, abrogates, or repeals the common law as to the duty of railroads when the railroad crosses public drains. Does said section 3 (6142), supra, repeal the common law as to said duty of railroads, by implication? Since 1807 the common law has been in force in this state by virtue of legislative enactment. Section 236, Burns' Ann. St. 1908; Stevenson v. Cloud, 5 Blackf. 92. It will be presumed that the Legislature does not intend by a statute to make any change in the common law beyond what it explicitly declares either in express terms or by unmistakable implication. The construction of a statute will be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the act in question. Endlich, Interp. Stat. § 127; Black, Interp. of Laws, 110; 2 Lewis' Sutherland Stat. Const. §§ 454, 455; Maxwell, Interp. of Laws (2d Ed.) 96; 26 Am. & Eng. Encyc. of Law (2d Ed.) 662-665; 8 Cyc. 373-376; State v. Wilson, 43 N. H. 415, 82 Am. Dec. 163;Chadbourn v. Chadbourn, 9 Allen (Mass.) 173;State v. Pulle, 12 Minn. 164 (Gil. 99); Jennings v. Comm., 17 Pick. (Mass.) 82; State v. Norton, 23 N. J. Law, 39; Goodwin v. Thompson, 2 G. Greene (Iowa) 329;State v. Dalton, 134 Mo. App. 517, 525-530, 114 S. W. 1132, and cases cited.

As said in Chadbourn v. Chadbourn, supra, at pages 173, 174, of 9 Allen (Mass.): “Repeals are not to be favored by implication, and courts of law are scrupulously careful not to sanction such repeals, unless the intention of the Legislature to abrogate the previously existing law is clearly manifest. Whenever it is apparent that a different purpose may be attained without essentially impairing the effect of the operative words of the statute, that construction is to be adopted which will leave the common law or an earlier enactment in force.”

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