City of Indianapolis v. Indianapolis Water Co.

Decision Date28 June 1916
Docket NumberNo. 22985.,22985.
Citation113 N.E. 369,185 Ind. 277
PartiesCITY OF INDIANAPOLIS v. INDIANAPOLIS WATER CO.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Marion County; Louis B. Eubank, Judge.

Suit by City of Indianapolis against the Indianapolis Water Company. Judgment for defendant, on sustaining its demurrers to the complaint, and plaintiff appeals. Reversed, with directions to overrule the demurrer to the first and second paragraphs of the complaint.Paul G. Davis, Wm. A. Pickens, Walter Myers, and Russell J. Ryan, all of Indianapolis, for appellant. Baker & Daniels and J. J. Daniels, all of Indianapolis, for appellee.

SPENCER, J.

All of the questions presented by this appeal arise out of the action of the trial court in sustaining a demurrer to each of the three paragraphs of appellant's complaint. This pleading is drawn on the general theory that appellee, as the owner of a canal which lies partly within the boundaries of the city of Indianapolis, is responsible for the construction and maintenance of all bridges over such canals which are made necessary by the intersection of the same with public streets. The first paragraph of complaint alleges more particularly that appellant is a municipal corporation of the state of Indiana and has been such, first, as a town, and from thence till now, continuously, as a city, since a date prior to the year 1830; that it is now, and for more than ten years last past, continuously, has been, a city of the first class, as defined by the act of March 6, 1905 (Acts 1905, pp. 219, 239; section 8643, Burns 1908), entitled “An act concerning municipal corporations,” and is governed and controlled by that act, and by other statutes of Indiana amendatory and supplementary thereto, in so far as said several statutes apply to such cities of the first class. That appellee, a corporation of Marion county, Ind., was organized and incorporated on April 21, 1881, and in that year acquired by purchase all of the property, rights, and franchises previously owned and held by the Waterworks Company of Indianapolis, and assumed all of the burdens attaching thereto; that the expressed object of the incorporation of said original waterworks company and of appellee, in their respective articles of association and certificates of incorporation, was to furnish to appellant city, and to the inhabitants thereof, water for domestic use, for the extinguishing of fires, and for manufacturing purposes; that said original company, from the time of its incorporation on October 7, 1869, up to the organization of appellee, and the latter company, from that time to the present, have continuously been engaged in carrying out said objects; there having been no other person or corporation engaged in performing like services for appellant or its people at any time since the incorporation of said original waterworks company.

It is further alleged that on April 19, 1816, the state of Indiana acquired by grant from the United States of America, for a permanent seat of government for the state, certain lands situate in what is now Marion county, and thereafter, in the year 1821, subdivided such lands into squares, lots, and out-lots, and located certain streets on the plat thereof, including a street known as New York street which became and was used as a public highway in the town of Indianapolis prior to the construction of the canal herein referred to; that in the year 1836 the state of Indiana, by an act of its General Assembly (R. S. 1838, p. 337), provided for a general system of internal improvements to be constructed by and to belong to the state, and, to that end, by that act, created a state board of internal improvements which thereafter began, and in the year 1838 completed, the construction of the “Central Canal” from and including its White river feeder dam and locks at Broad Ripple to Market street in the town of Indianapolis, and its hydraulic arm from that point to a spillway into White River, and then placed the same in operation for the purposes of navigation and hydraulic power as contemplated by the statute of 1836, and the same was thereafter used for such purposes for a number of years under lease from the state. That on June 30, 1851, by deed duly authorized, the state of Indiana conveyed to Francis A. Conwell, his heirs and assigns, “all the right, title, and interest of the state of Indiana in and to that portion of the northern division of the Central canal situate north of Morgan county, and all the rents which shall become due after the sale of said property and the water power, and appurtenances thereunto belonging, and all the right, title, interest, claim, and demand which the state may hold or possess in such portion of said canal, including its banks, margins, towpaths, side cuts, feeders, basins, right of way, dams, water power structures, and all appurtenances thereunto belonging;” that by mesne conveyances all of said property and rights on May 1, 1870, by deed of that date, vested in the Waterworks Company of Indianapolis, from whom, as aforesaid, the title passed in 1881 to appellee; that each grantee of said property, from the immediate grantee of the state to appellee, both inclusive, took full possession of the property and held the same until he conveyed to his immediate grantee thereof.

The complaint then sets out in full certain franchise contracts in writing, and amendments thereto, which were entered into by appellant city with both the Waterworks Company and appellee, as its successor, relative to the furnishing of water to the city and its inhabitants; but it is not necessary, for the purposes of this appeal, here to state the same in detail. It is further alleged that, subsequent to the construction of the canal, as aforesaid, and for the purpose of enabling the public to continue the free and uninterrupted use for public travel of certain streets which had been previously laid out and established, bridges from time to time were built over the canal at points where the same had been constructed across such streets, and by means of such bridges said streets were carried over and across the canal, and their use as public highways was thereby continued and maintained at such places; that for many years prior to March 6, 1905, said bridges were maintained and kept in good repair so as to be safe and suitable for public travel at the expense of the town and city of Indianapolis, but that the payment of the cost and expense of such maintenance and repairs by the town and city of Indianapolis was at all times improper and unlawful; that it has been and was at all times the duty of appellee, from the time it acquired possession of the canal property in the year 1881, to maintain each and all of such bridges and to keep the same in good repair at its own expense; that after March 6, 1905, and on or about August 22, 1906, the bridge which formed the crossing of New York street over the canal became and was out of repair and needed repairs in order to make and keep it safe for public travel; that on that day appellant, by its board of public works, duly notified appellee that said bridge was so out of repair and demanded that appellee, at its own expense, proceed to put such bridge in such condition of repair as would make it safe for public travel thereon, but that appellee stated to appellant, in response to said demand, that it would not make such repairs and denied any authority of appellant to require it so to repair said bridge; that appellant thereupon made and paid for certain needed repairs thereto at the reasonable cost and expense of $266.37, for the payment of which demand was thereafter made on appellee and refused. Prayer for judgment.

The second paragraph of complaint seeks to recover for repairs, made by appellant in the year 1906, to a bridge over appellee's canal at its intersection with Fifteenth street, and differs from the first paragraph only in so far as it shows that at said point Fifteenth street, then known as part of the Michigan road, was a state highway at the time the canal was constructed, and was not annexed to the city of Indianapolis until the year 1871.

The third paragraph of complaint also contains most of the averments of the first, but asks judgment for the cost of a new bridge, erected and paid for by appellant in the year 1907, at what is known as Twenty-Ninth street crossing. There was no highway at that point when the canal was built, and no bridge was there located until 1907.

In taking a general position that appellee, as the owner of an artificial water way which intersects public streets, is bound to construct and maintain all such bridges and approaches thereto as are necessary to insure to the traveling public safe and convenient passage over such water way, appellant asserts that this duty is imposed both under the common law and by the express provisions of section 8696, cl. 15, Burns 1914, which authorizes the board of public works of a city “to straighten, deepen or otherwise change or improve any water course, natural or artificial, within such city or within four miles thereof, and to require the owners of canals and water courses to construct and maintain bridges across the same at street and alley intersections.”

[1] There can be no doubt that, at common law, any person, who, although acting under lawful authority, interferes with and cuts through an existing public highway and thus renders a bridge necessary, must build such a bridge in order to enable the public to exercise their right of passage, and must maintain and repair such bridge, with its approaches, until he abandons his operations and restores the highway to its original condition. Many of the following authorities which recognize this rule expressly apply the same to the construction of bridges over canals. Wayne County Turnpike Co. v. Berry, 5 Ind. 286, 288;Board, etc., v. White Water Valley Canal Co., 2 Ind. 162;Ft. Wayne, etc.,...

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