City of Ft. Wayne v. Ft. Wayne & J.R. Co.
| Decision Date | 23 November 1897 |
| Citation | 48 N.E. 342,149 Ind. 25 |
| Parties | CITY OF FT. WAYNE et al. v. FT. WAYNE & J. R. CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Whitley county; J. W. Adair, Judge.
Action by the Ft. Wayne & Jackson Railroad Company against the city of Ft. Wayne and others for an injunction. From a decree for plaintiff, defendants appeal. Affirmed.W. H. Shambaugh and Henry Colerick, for appellants. Morris & Bell and Barrett & Morris, for appellee.
The appellee sought and obtained, in the lower court, an injunction denying the right of the appellants, the city of Ft. Wayne and her officers, to extend Fourth street, in said city, across the switch yards and tracks of the appellee, the Ft. Wayne & Jackson Railroad Company. The city had, by proceedings under sections 3623, 3629, et seq., Rev. St. 1894 (sections 3161, 3166, et seq., Rev. St. 1881), established the extension, and, at the time of the filing of this suit, was about to open the street across the appellee's right of way, switch yards, and tracks, and was engaged in removing buildings, filling approaches, and constructing said street; but, in said proceedings, she had wholly failed to give the appellee any notice thereof, and appellee was not a party to, was not named in, and was not present or represented at or in, any of said proceedings; nor was any question of the appellee's damages considered in said proceedings, and no damages were assessed, paid, or tendered to the appellee, although the proposed extension would result in damage to the appellee in the sum of many thousands of dollars, in the taking of its property and the loss of its uses. On behalf of the appellants it is insisted that the statute (Rev. St. 1894, § 3636; Rev. St. 1881, § 3173) afforded a legal remedy to the appellee, and that, therefore, equity would not extend its remedy of injunction; and it is further insisted that section 3644 of said statute (section 3181) expressly denied the right of injunction. For the appellee it is contended that the absence of notice rendered the proceedings void, and that the taking of the property was properly enjoined.
It is a rule of the constitution that “property shall not be taken by law without just compensation, nor, except in case of the state, without such compensation first assessed and tendered.” Rev. St. 1894, § 66 (Rev. St. 1881, § 66). The statute under which the condemnation in question was sought does not obviate this constitutional guaranty, but prescribes a method of compliance therewith. The federal constitution requires that the property of the individual shall not be taken without due process of law, and notice, under this requirement, is essential. The statute under consideration provides for a compliance with this requirement. In construing the statute, therefore, we must read it as if these constitutional provisions were a part of it, and as if it did not narrow, but fully supplied, these constitutional guaranties. It is not denied, and without doubt could not be, that in the absence of sections 3636 and 3644 (sections 3173 and 3181), supra, injunction would lie to stay the opening of the street across the yards. Section 3636 (3173) provides that * * *” Section 3644 (3181) provides that “if the commissioners make a report to the common council, as herein provided, no injunction shall lie to restrain proceedings, unless the common council shall proceed to appropriate property upon which damages have been assessed, without first causing the same to be paid or tendered; but all...
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