Cincinnati, Indianapolis Western Railway Company v. City of Connersville

Decision Date28 November 1910
Docket NumberNo. 19,19
PartiesCINCINNATI, INDIANAPOLIS, & WESTERN RAILWAY COMPANY, Plff. in Err., v. CITY OF CONNERSVILLE
CourtU.S. Supreme Court

Messrs. John B. Elam, James W. Fesler, Harvey J. Elam, and Reuben Conner for plaintiff in error.

[Argument of Counsel from Pages 337-340 intentionally omitted] Messrs. Richard N. Elliott, Charles F. Jones, Hyatt L. Frost, and David W. McKee for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

The common council of Connersville, Indiana, adopted a resolution declaring that a railway embankment maintained by the Cincinnati, Indianapolis, & Western Railway Company, the plaintiff in error, across Grand avenue, in that city, obstructed passage between the north and south ends of the avenue; also, that such avenue should, as a matter of public necessity, be opened as a public street through said railroad embankment.

The question of the expediency, advisability, and public utility of opening up the avenue through the embankment was thereupon referred to the city commissioners, and to the council's committee on streets, alleys, and bridges, for action. Upon consideration of the matter at a time of which public notice was duly given, and after an examination of the ground sought to be appropriated, the commissioners reported that the opening of the avenue through the railroad embankment would be of public utility. The report stated that the real estate to be appropriated by the opening of the avenue was so much of the railroad embankment as extended the entire width of the avenue, as then used and opened, immediately north and south of such embankment. The tract sought to be appropriated was 66 feet square and was occupied by the embankment. The commissioners found and reported that no real estate would be damaged by the proposed opening other than that sought to be appropriated, and that the real estate abutting on both sides of the avenue would be benefited by the proposed opening of the street. There was a hearing—after due notice to all parties concerned, including the railroad company—of the question of injuries and benefits to the property to be appropriated, and of the benefits and damages to all real estate resulting from the opening of the avenue. The result of the hearing was a report by the city commissioners in favor of the opening, and the value of the real estate sought to be appropriated was estimated at $150.

The city council adopted the report of the commissioners, and appropriated for the purpose of opening Grand avenue the real estate described in the report as necessary to such opening,—the property here in question being a part of that to be appropriated. The council also directed that a certified copy of so much of the report as assessed benefits and damages be delivered to the treasurer of the city, and copied in full on the records of the council, with the minute of the adoption of the resolution describing the real estate appropriated.

There were various exceptions by the railway company and by the city, followed by a trial before a jury, which found for the railway company and assessed its damages at $800. A motion by the company for a new trial having been overruled, and a judgment entered for the defendant company, in the state court of original jurisdiction, the case was carried to the supreme court of Indiana (which affirmed the judgment), and it is now here for a re-examination as to certain Federal questions raised by the railway company.

It was not disputed at the trial that the improvement of Grand avenue, as ordered by the city of Connersville, made it necessary to construct a bridge over and across the avenue as reconstructed.

The trial court gave the following, among...

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