Chicago & E.R. Co. v. Luddington

• Decision Date: 24 May 1910
• Docket Number: No. 21,541.,21,541.
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. LUDDINGTON et al.

175 Ind. 35

91 N.E. 939

CHICAGO & E. R. CO.

v.LUDDINGTON et al.

No. 21,541.¹

Supreme Court of Indiana.

May 24, 1910.

Appeal from Circuit Court, Porter County; H. S. Barr, Judge.

Proceedings by Joseph D. Luddington and others for the construction of a public ditch in which the Chicago & Erie Railroad Company filed a remonstrance for damages on account of the drain crossing its right of way. From a judgment assessing remonstrator with benefits, it appeals. Affirmed.Johnston & Bartholomew and W. O. Johnson, for appellant. H. H. Loring, for appellees.

MONKS, J.

Appellees, in 1908, brought this proceeding in the court below for the construction of a public ditch under the drainage law of 1907. Acts 1907, p. 508, being section 6140 et seq., Burns' Ann. St. 1908. Appellant filed a remonstrance for damages on account of said drain crossing its right of way. Such proceedings were had that appellant was assessed with benefits in the sum of $150, and the proposed work of drainage was established. From this judgment appellant appealed to this court.

The controlling question is whether or not a railroad company acquires its right of way subject to the right of the state to extend public ditches across the same, and subject to the condition that it must place, keep, and maintain its road across said public ditch in such condition as not to unnecessarily impair the usefulness of said ditch and so as not to interfere with the free use thereof.

It is urged by appellant that it did not acquire its right of way subject to any such condition. Clause 5 of section 5195, Burns' Ann. St. 1908, section 5153, Burns' Ann. St. 1901, section 3903, Rev. St. 1881, and section 7683, Burns' Ann. St. 1908, are cited by appellant as controlling this question. Said clause 5 reads as follows: “To construct its road upon or across any stream of water, water course, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or water course, road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.” Said section 7683, supra, is substantially the same.

It is settled law in this state, however, that it is the duty of railroads which cross a highway or water course to restore the same to its former condition of usefulness and safety, even in the absence of any express statutory requirement. 3 Elliott on Railroads, § 1092; Elliott on Roads & Streets (2d Ed.) §§ 779, 780; Evansville, etc., R. Co. v. Town of Ft. Branch, 149 Ind. 276, 278, 49 N. E. 2, and authorities cited; Indianapolis, etc., R. Co. v. State, 37 Ind. 489, 502. See, also, Eyler v. County Com'rs, etc., 49 Md. 257, 33 Am. Rep. 249, 252;Northern, etc., R. Co. v. Mayor, 46 Md. 425, 444-446;City of Zanesville v. Fannon, 53 Ohio St. 605, 615, 42 N. E. 703, 53 Am. St. Rep. 664;Cleveland v. City, etc., 102 Ga. 233, 29 S. E. 584, 43 L. R. A. 638, and case cited; Tiedeman on Municipal Corp. § 306.

Public ditches, established under the laws of this state, are public ditches of the state, and, like public highways established under the laws of this state, are under the full control of the Legislature. The construction and repair of public ditches, under the laws of the state, like the establishment and improvement of public highways, is a public purpose, is a matter of state concern, and the exercise of a state function. State v. Board, etc., 170 Ind. 595, 85 N. E. 513, and cases cited. As was said in State v. Fox, 158 Ind. 126, 135, 136, 63 N. E. 19, 22 (56 L. R. A. 893): “There are important powers delegated to municipalities which concern every citizen of the state, and for the proper exercise of which the state cannot abdicate responsibility by committing them to local officers. *** In every matter which affects the safety, morals, health, or general welfare of the people at large, or of a considerable number of them, there is undoubtedly reserved in the state the power to supervise, control, and even coerce, local officers in the discharge of public duties, and even to send its own agents into an organized district, if necessary to enforce a public right, or accomplish a public benefit. For instance, every citizen has a right to travel the public highways-those in cities and towns, where, according to common usage, they are made, dug up, and improved by local action, as well as those in rural districts. In every part of these highways the traveler is entitled to the state's protection from violence, and from dangerous situations. For the preservation of public health, for the prevention of disease and epidemics, each inhabitant has an interest in the proper drainage of lands, and in the suppression of all unsanitary conditions, whether rural or urban, and without regard to territorial boundaries, and the right to look to the state for protection against these evils so far as the same may legally afford. Likewise the enforcement of the state's criminal and revenue laws are of equal importance to all. In all of these and kindred things, the setting up of corporation lines forms no barrier to the strong arm of the state in safeguarding every public interest.”

It is clear, therefore, that the rule stated as to a railroad's duty, in the absence of any statutory requirements, to restore a highway to its former condition of usefulness and safety, when crossed by said railroad, also applies to railroads which cross public ditches. There is nothing in the law authorizing a railroad company to lay out its right of way and construct its tracks thereon that limits the power of the state to extend public ditches...