Chicago & S.E. Ry. Co. v. State ex rel. City of Noblesville

• Decision Date: 07 October 1902
• Citation: 64 N.E. 860,159 Ind. 237
• Parties: CHICAGO & S. E. RY. CO. v. STATE ex rel. CITY OF NOBLESVILLE.
• Court: Indiana Supreme Court

159 Ind. 237

64 N.E. 860

CHICAGO & S. E. RY. CO.

v.STATE ex rel. CITY OF NOBLESVILLE.

Supreme Court of Indiana.

Oct. 7, 1902.

Appeal from circuit court, Tipton county; W. W. Mount, Judge.

Mandamus by the state of Indiana, on the relation of the city of Noblesville, against the Chicago & Southeastern Railway Company, to compel respondent to lower its grade at street crossings. From a judgment ordering such peremptory writ, defendant appeals. Affirmed.W. R. Crawford, W. C. Stover, and Oglebay & Oglebay, for appellant. Christian, Christian & Cloe, for appellee.

MONKS, J.

The relator brought this action to compel appellant by writ of mandamus to lower its tracks so as to conform to the grade of the streets crossing the same. The cause was tried by the court, a special finding of facts made, conclusions of law stated thereon in favor of appellee, and a peremptory writ ordered requiring appellant to lower its tracks to conform to the grade of said streets. The errors assigned and not waived are: “(1) The court erred in overruling appellant's demurrer to the alternative writ. (2) The court erred in overruling appellant's motion to amend the special findings: (3) The court erred in its conclusions of law.” “(5) The court erred in overruling appellant's motion to change and modify the judgment.”

It is alleged in the alternative writ: That appellant's “line of railway passes through the city of Noblesville on and along Vine street of said city, which extends east and west through said city, and intersects Ninth, Tenth, and Eleventh streets, which last-named streets run north and south through said city. That each of said streets, before the construction of said railway, and since, and now are public streets of said city, in constant use by the inhabitants of said city and the public generally for travel. That said streets running north and south are the principal streets of said city running north and south, and are now improved as hereinafter stated, and are necessary to said city and the public generally, and that the same are constantly traveled by persons on foot, by vehicles, and loaded wagons drawn by horses; and that said streets are intersected by said line of railway at right angles; and that in traveling upon each of said streets the traveler is compelled to cross over said railroad coming or going from the public square, the business portion of said city, to and from the south part of said city; and that in each day hundreds of persons and loaded wagons and vehicles drawn by horses have to cross said railroad at the intersections of said streets. That said Ninth street has been graded and improved, both the roadway and the walks, the roadway being paved with brick and the walks with cement, north and south of said line of railway; and said Tenth street has been graded and improved with gravel and with brick walks north and south of said railway,-each of which improvements were made at thousands of dollars cost to said city and the property owners abutting thereon; and that said defendant company and its predecessors have constructed and is now operating its said line of railroad upon and along Vine street, and has laid and maintained its main track of railroad upon and along said street, and has constructed and now maintains side tracks and switches on and along said Vine street; and that said defendant or its predecessors in the original construction of said main track and said side tracks and switches elevated its said tracks by grading up the surface of said street, thereby producing an obstruction to the free use of said street, and especially at the intersections of said streets hereinbefore mentioned which run north and south through said city; and that by the improvements made on said streets aforesaid said elevation of said tracks of said defendant company became still higher, so that now, and ever since said railroad was constructed, said elevation or grade of said defendant's roadbed and tracks thereon have been a continuous obstruction to the free use of Ninth, Tenth, and Eleventh streets at the points of intersection of said railroad on said Vine street, and has and does now render the use thereof dangerous to travelers, and subjects said city to constant danger of suits for damages for any accident that may happen to said travelers in crossing said railroad; and that said city would have no recourse on said defendant company in the event it was mulched in damages on the account that said defendant company has no property subject to execution, and is wholly insolvent. And said relatrix further says that it was and now is the duty of said defendant company to level and cut down its said roadbed and said elevation of its tracks so as to correspond with the surface of said Ninth, Tenth, and Eleventh streets at the points of intersection and where the same cross said railway, and to lower its tracks on its main line and side tracks and switches at said places so that the top of the rail will be on a level with the surface of said crossings as the said streets are now improved; and the said relatrix has frequently notified and requested said defendant company to lower its said roadbed and said tracks so as to be on a level with the surface of said streets as now improved, but that said defendant company has wholly failed and refused to comply with said request and notice, and to perform its said duty in reference to said crossings.” In this state a railroad company is authorized to construct its road across a highway only on condition that it restore the highway “to its former state,” or place it in such condition “as not to unnecessarily impair its usefulness,” and that it construct its road across...