City of Terre Haute v. Evansville & T. H. R. Co.

• Decision Date: 16 February 1897
• Citation: 46 N.E. 77,149 Ind. 174
• Parties: CITY OF TERRE HAUTE et al. v. EVANSVILLE & T. H. R. CO.
• Court: Indiana Supreme Court

149 Ind. 174

46 N.E. 77

CITY OF TERRE HAUTE et al.

v.EVANSVILLE & T. H. R. CO.¹

Supreme Court of Indiana.

Feb. 16, 1897.

Appeal from circuit court, Vigo county; David N. Taylor, Judge.

Action by the Evansville & Terre Haute Railroad Company against the city of Terre Haute and others. From an order granting a temporary injunction, defendants appeal. Reversed.

John O. Piety, James E. Piety, Stinson, Stinson & Condit, and Geo. E. Pugh, for appellants. Iglehart & Taylor and Davis, Reynolds & Davis, for appellee.

MONKS, J.

This is an appeal from a temporary injunction granted March 1, 1896, by the court below on motion of appellee, restraining appellants from taking any steps to extend Ohio street, in the city of Terre Haute, across appellee's freight yard and 14 tracks used for switching and storing cars and loading and unloading the same. The question presented is one of jurisdiction. If the city officers had jurisdiction, injunction will not lie; but, if the city had no authority to extend Ohio street across said freight yard and tracks already devoted to a public use, there was no jurisdiction, and injunction was an appropriate remedy. Rev. St. 1894, § 3644 (Rev. St. 1881, § 3181); City of Seymour v. Jefferson, M. & I. R. Co., 126 Ind. 466, 26 N. E. 188;Tucker v. Sellers, 130 Ind. 514, 521, 30 N. E. 531;Bass v. City of Ft. Wayne, 121 Ind. 389, 392, 23 N. E. 259;Smith v. Goodknight, 121 Ind. 315, 23 N. E. 148;Adams v. Harrington, 114 Ind. 66, 71, 14 N. E. 603;Caskey v. City of Greensburgh, 78 Ind. 233. It is also well settled that land once appropriated to a public use by a railroad company cannot be condemned by a city to inconsistent public uses, unless the statute expressly or by necessary implication authorizes such second appropriation. Steele v. Empsom, 142 Ind. 397, 41 N. E. 822;Cincinnati, W. & M. Ry. Co. v. City of Anderson, 139 Ind. 490, 38 N. E. 167, and cases cited on page 492, 139 Ind., and page 168, 38 N. E.; 3 Elliott, R. R. §§ 964, 966.

It is conceded by appellants that the proposed street, if located across appellee's freight yard and 14 tracks used for switching and storing cars and loading and unloading the same, would be inconsistent with such uses, and would materially injure and impair the same. Under the law as it existed in this state prior to March, 1891, it was held that there was no statute, expressly or by necessary implication, authorizing such second public use, if it destroyed or materially injured the first public use. Cincinnati, W. & M. Ry. Co. v. City of Anderson, supra; Steele v. Empsom, supra. By an act of the general assembly approved March 6, 1891,-Acts 1891, p. 122; Rev. St. 1894, § 3623 (Rev. St. 1881, § 3161),-it was provided that “the common council shall have exclusive power over the streets, highways, alleys and bridges within such city, * * * to lay out, survey, extend, and open new streets and alleys. * * * They may cause buildings, structures, or other things in the way of any street or other public improvement to be taken down, removed and appropriated upon the payment of damages as now provided by law; they may enter upon, seize, appropriate and condemn the right of way, or other lands of any railroad company, person or corporation passing through such city for street or alley purposes, whether such lands be occupied and used or not, upon payment of damages as provided under and pursuant to the provisions of an act entitled an act in relation to the laying out, opening, widening, altering and vacation of streets, alleys and highways, and for the straightening or altering of water courses by cities of the state, and providing for the appointment of commissioners to assess benefits and damages, prescribing their duties and the method of procedure, and providing for the collection of benefits and the payment of damages and prescribing the duties of city officers in relation thereto, and providing remedies in such matters, approved March 17, 1875, and the amendments thereto.” By this act the power of cities was enlarged, and they were expressly authorized to lay out, extend, and open streets and alleys across the right of way and other lands of any railroad company, without regard to the use to which they were already devoted, and however inconsistent the second use might be therewith. The only limitation upon the power of a city to seize for public use property already devoted to a public use by a railroad company is that it shall be for “street or alley purposes.” If we should hold under section 3623, Rev. St. 1894 (section 3161, Rev. St. 1881), that such property could not be devoted to a second public use if the same were inconsistent with the first public use, the amendment of 1891 would be ineffective for any purpose, because before the same was passed cities had the power to extend streets across railroad property when the second use would not be inconsistent with the first use. City of Ft. Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 565, 566, 32 N. E. 215; Cincinnati, W. & M. Ry. Co. v. City of Anderson, supra. It is clear, we think, that it was the intent of the general assembly by the act of 1891 to grant the power to cities, in regard to extending streets and alleys across the property devoted to public use by railroads, that they did not already possess, and authorize them to appropriate such property to a second public use, although the same would be inconsistent with the first. Statutes in substantially the same language as section 3623, Rev. St. 1894 (section 3161, Rev. St. 1881), have been held in other states to grant such power. Illinois Cent. R. Co. v. City of Chicago, 138 Ill. 453, 28 N. E. 740;Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109;Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044;Illinois Cent. R. Co. v. City of Chicago, 156 Ill. 98, 41 N. E. 45.

It is insisted by appellee that the act of 1891 provides no method for the assessment of adequate damages for the property sought to be appropriated. The statute authorizes the seizure of the right of way or other lands of a railroad company, whether the same are occupied or not, and such seizure is only authorized upon payment of damages assessed under the provisions of the act approved March 17, 1875, and the amendments thereto, being sections 3629-3657, Rev. St. 1894 (sections 3166-3194, Rev. St. 1881). Sections 3631, 3634, Rev. St. 1894 (sections 3168, 3171, Rev. St. 1881), require the city commissioners to “examine the property sought to be appropriated, and estimate its value, and in assessing and awarding damages and benefits * * * they shall estimate benefits and damages to all the real estate injuriously or beneficially affected.” They shall assess upon each lot of land belonging to the same person the damages done thereto, and report “the value of the property to be appropriated” and “the damages to property * * * where no part thereof is taken.” Section 3623, Rev. St. 1894 (section 3161, Rev. St. 1881), is to be construed in connection with said sections, and, when so considered, “buildings, structures, or other things” on the right of way or other lands of a railroad company, in the way of the opening or extension of any street, may be taken down, removed, and appropriated, upon payment of damages, to be assessed under the provisions of the act of 1875 and the amendments thereof. Sections 3629-3657, Rev. St. 1894 (sections 3166-3194, Rev. St. 1881). The provisions of these sections are as broad and more definite and certain than the statute concerning the seizure of property for railroad purposes, under which ample damages have been allowed. Railroad Co. v. Swift, 128 Ind. 34, 27 N. E. 420;Railway Co. v. Hunter, 128 Ind. 213, 27 N. E. 477; Railway Co. v. Allen, 100 Ind. 409; Railroad Co. v. McClure, 29 Ind. 536; Railroad Co. v. Horn, 41 Ind. 479; Railroad Co. v. Lansing, 52 Ind. 229, and cases cited on page 233. It is clear, we think, that the damages are not limited to the value of the real estate actually taken, but that by said sections ample provision is made for the assessment of all damages and their prompt payment in cases like the one at bar. While the legislature may not amend or otherwise materially modify the special charter of a corporation, unless the power is expressly reserved (Railroad Co. v. Clifford, 113 Ind. 460, 15 N. E. 524), yet the property of the corporation devoted to public use is subject to condemnation for a second public use, at the will of the legislature. Illinois & M. Canal v. Chicago & R. I. R. Co., 14 Ill. 314;Newcastle & R. R. Co. v. Peru & I. R. Co., 3 Ind. 464;La Fayette Plankroad Co. v. New Albany & S. R. Co., 13 Ind. 90;Bridge Co. v. Dix, 6 How. 507;Enfield Toll-Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 454. It is true, as claimed by appellee, that its special charter is a contract with the state, but it is subject to the right of eminent domain which remains in the state. The exercise of this power by a state, or under the authority of the state, is not an interference with the inviolability of contracts, for the reason that all contracts are made subject to the right of eminent domain. Bridge Co. v. Dix, supra; Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. 71;Greenwood v. Freight Co., 105 U. S. 13, 22; Milnor v. Railroad Co., 6 Am. Law Reg. 6, Fed. Cas. No. 9,620; Bank v. Sharp, 6 How. 301, 330, 331; Railroad Co. v. Elliot, 58 N. H. 451, 456; Enfield Toll-Bridge Co. v. Hartford & N. H. R. Co., supra; Beekman v. Railroad Co., 3 Paige, 45, 73; Id., 3 N. Y. Ch. (Lawy. Ed.) note, p. 45; Murphy v. Beard, 138 Ind. 560, 564, 38 N. E. 33.

The assessment of damages and benefits in the opening, laying out, and extending of streets and alleys is committed by the act of 1875 to five persons, called “City Commissioners,” appointed by the judge of the circuit court of the county. Rev. St. 1894, § 3629 (Rev. St. 1881, § 3166). The words “circuit court,” used in the act of...