City of Fort Wayne v. Lake Shore & M.S. Ry. Co.

• Decision Date: 05 November 1892
• Citation: 32 N.E. 215,132 Ind. 558
• Parties: CITY OF FORT WAYNE v. LAKE SHORE & M. S. RY. CO.
• Court: Indiana Supreme Court

132 Ind. 558

32 N.E. 215

CITY OF FORT WAYNE

v.LAKE SHORE & M. S. RY. CO.

Supreme Court of Indiana.

Nov. 5, 1892.

Appeal from superior court, Allen county; A. A. Chapin, Judge.

Action by the Lake Shore & Michigan Southern Railway Company to enjoin the city of Fort Wayne from opening a street across the plaintiff's yard and tracks. Judgment for plaintiff. Defendant appeals. Affirmed.Henry Colerick, for appellant. John H. Baker, (Geo. C. Green and O. G. Getzen-Danner, of counsel,) for appellee.

Coffey, J.

This was an action brought by the appellee against the appellant, the city of Fort Wayne, to enjoin the latter from opening a street across the yard and tracks of the appellee situated within the limits of the city. The material facts in the case, as they appear in the special findings of the court, are that in the year 1866 the city of Fort Wayne acquired a tract of land in fee simple by purchase and deed, contiguous to the city, for the purpose of a public park. The deed to the city contained no limitation nor conditions as to the purpose for which the land was purchased or was to be used, nor did it contain any restrictions as to the power of the city to convey the same. On the 23d day of March, 1869, and before any steps had been taken to convert the ground into a public park, the common council of the city adopted a resolution, by the terms of which it granted to the Fort Wayne, Jackson & Saginaw Railroad Company 20 acres of the land off of the west side of the tract, upon the condition that the railroad company should run its line through the tract so granted, and locate its depots for local purposes thereon, and also locate any shops it might find necessary to build at Fort Wayne upon the same tract; and upon the further condition that the property and the north side addition to Fort Wayne should become annexed to and become a part of the city of Fort Wayne. The resolution further provided that, when the railroad company had complied with the conditions of the grant, the mayor of the city should execute to it a deed of conveyance for the land donated. The city also reserved the right to cross the tracks of the appellant whenever it should determine to lay off an addition composed of the remainder of the tract. The donation of the land was made for the purpose of inducing the railroad company to make the city of Fort Wayne its southern terminus, and to induce it to locate its depots for local purposes and its shops thereon. Prior to February, 1871, the railroad company accepted the donation on the terms and conditions expressed in the resolution, took possession of the land, and constructed its roadbed through the same, put in side tracks and switches, and erected depot buildings thereon, on the faith of the resolution, and located its yards on the ground, for making up its trains, storing cars, and conducting its business as a passenger and freight railroad, and prior to the 12th day of March, 1872, had expended in so doing several thousand dollars. On the 12th day of March, 1872, the common council of the city passed a resolution directing the may or to execute to the railroad company a deed for the land, which he accordingly did on the 26th day of the same month. At the time the first resolution above referred to was adopted, one Edgerton was a member of the common council of the city of Fort Wayne, and he was at the same time vice president of the railroad company. The common council consisted of 16 members, 9 of whom voted for the resolution and 7 against it, Edgerton voting for the resolution; but when the last resolution, directing the mayor to execute the conveyance, was passed, Edgerton was not a member of the common council. On the 8th day of April, 1873, the common council of the city of Fort Wayne passed a resolution attempting to rescind both the resolutions above mentioned, upon the alleged ground that the city had no power to bargain away the land therein described, and upon the alleged ground that the railroad company had not complied with the conditions of the grant. The resolution also required the city attorney to take such steps as might seem to him necessary to avoid the deed executed by the mayor of the city, but, so far as appears, no action was taken by him. On the 31st day of December, 1879, the Fort Wayne & Jackson Railroad Company succeeded to all the rights of the Fort Wayne, Jackson & Saginaw Railroad Company, and on the 24th day of August, 1882, the Fort Wayne & Jackson Railroad Company leased all of its property to the appellee for the period of 100 years. By a proceeding instituted for that purpose, regular on its face, the city of Fort Wayne, by its common council, has ordered an extension of Fourth street in said city, so as to cross the yard and tracks of the appellants about 250 feet from the south end of the yard. In this proceeding the property was treated as belonging to the city of Fort Wayne, and for this reason neither the appellee nor the railroad company from which it derives its title was made a party to the proceeding, or given any notice thereof in any manner whatever. At the point where Fourth street, if extended, will cross the appellee's yard it has six tracks, used for storing cars, weighing cars, making up trains, etc, and by opening Fourth street, as proposed, it will prevent the weighing of cars, and will render the south end of the yard useless for the purposes for which it was constructed.On an average, 140 cars are handled each day on these tracks, one half of which belongs to the Fort Wayne, Cincinnati & Louisville Railroad Company, which uses this yard as its northern terminus This latter railroad company has built roundhouses and repair shops on the land donated as above mentioned, by and with the consent and aid of the city of Fort Wayne, and it has contracted with the appellee, by the terms of which it uses the tracks and depot of the latter in the transaction of its business at Fort Wayne as its southern terminus, and without the use of this yard it cannot transact its business. The extension of Fourth street will greatly discommode and diminish the business of the appellee and its yard and station gounds, and impair the value of its property and franchise. By reason of the number of tracks, and their necessary use in moving trains and transporting and weighing freight cars, it will be dangerous to life and limb for the public to travel on said street extended across the appellee's yard as proposed. In constructing and preparing this yard and depot there has been expended about the sum of $13,000, and the use of this yard and station is necessary to the appellee in conducting its business at the city of Fort Wayne. Upon these facts the court stated as a conclusion of law that the appellee was entitled to a permanent injunction, enjoining the city of Fort Wayne from extending Fourth street across its yard and tracks at the point described in the complaint. The correctness of this conclusion is questioned by the assignments of error upon this appeal.

It is contended by the appellant that the conclusion...