Cleveland, C., C. & St. L. Ry. Co. v. Christie
| Decision Date | 19 December 1912 |
| Docket Number | No. 22,075.,22,075. |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. CHRISTIE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Putnam County; J. M. Rawley, Judge.
Action by George W. Christie against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Transferred from Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405).
Enloe & Pattison, of Danville, and Frank L. Littleton, of Indianapolis, for appellant. Thad S. Adams, of Danville, and Moore Bros., of Michigan City, for appellee.
Appellee sued to recover damages from appellant for injuries to his property occasioned by the closing of an alleged highway in the town of Hadley, Ind. The complaint is in one paragraph. The court overruled a demurrer thereto, and appellant filed its answers in general denial and setting up affirmative matters. Appellee's demurrer to the second paragraph of answer was overruled, and a general denial in reply was filed. The issues were tried by a jury returning a verdict of $1,150 for appellee, for which sum the court rendered judgment.
Appellant assigns as error: (1) Overruling demurrer to the complaint; and (2) overruling its motion for a new trial.
The material facts are: In the year 1869 appellant's predecessor acquired a strip of land 99 feet wide by a condemnation proceeding in the Hendrick's circuit court, across the south half of the southeast quarter of section No. 14, township No. 15 north, range No. 2 west, in Hendricks county, Ind., to be used as a right of way for railroad purposes. In 1870, the Indianapolis & St. Louis Railway Company acquired a strip of land by deed 25 feet wide on the north side of its right of way from William Plasters and wife in the town of Hadley, Ind. Two public highways were opened in 1870, in a north and south and east and west direction, crossing each other on appellant's right of way immediately west of the said town of Hadley. The appellant's predecessor located its station on the north side of its tracks at a point 300 feet east of the north and south highway, and erected thereon a building which it used continuously as a depot and freight office until 1895, when it was destroyed by fire. Appellant's predecessor opened the 25-foot strip of land purchased from William Plasters and wife as a road leading from the north and south highway to and past the station to a place where two mills were located east of its station. At this place said company constructed a crossing over and across its right of way and tracks in order that the public might reach the mill located on the south side of its tracks. This strip of land was openly and continuously used as a highway by the citizens of Hadley from the time it was opened to the public in 1870 until 1906, when appellant created and maintained thereon the obstruction complained of in this action. In 1894, Alonzo L. Wheeler, who owned the land north of and adjoining this 25-foot strip of land, laid out and platted the Wheeler addition to the town of Hadley. Appellee, George W. Christie, purchased lot No. 6, in said Wheeler addition, and erected thereon, and fronting on the 25-foot strip of land in question, a large two-story frame building, fitting up the second story as a dwelling house, and the lower floor was converted into a storeroom in which he engaged in the mercantile business. The only way of reaching appellee's store and the company's depot and freighthouse was by passing over the highway located on the said strip of ground. This ground was used by the appellant, its predecessor, and the general public as a highway for more than 35 years, with the full knowledge, consent, and acquiescence of the appellant and its said predecessor, and said appellant had knowledge of the platting and recording of the said Wheeler addition to the town of Hadley, and had full knowledge that the appellee, and the various other purchasers of lots in said addition, were erecting dwellings, and that appellee was erecting a business house thereon, and well knew that said public highway located on the aforesaid strip was the only way of ingress and egress to and from appellee's residence and business house. From 1870 until 1906, the general public had used said strip of land as a public highway without objection or interference of appellant railway company. During this time the road supervisors and town authorities worked and improved the highways on the 25-foot strip of land in question with the other highways and streets of the town, without objection from the appellant. In 1906, appellant closed said highway and constructed thereon an embankment 15 to 20 feet high and located its tracks on it. This closed the highway, cut off appellee's only way of ingress and egress, destroyed his business, and greatly reduced the value of his property.
Appellant contends appellee's complaint proceeds upon the theory of dedication of the 25-foot strip of ground for public use, and that it fails to allege sufficient facts showing such dedication. The complaint alleged briefly and concisely facts sufficient to constitute a cause of action, and the demurrer thereto for insufficient facts was properly overruled.
[1] The true and vital question is: Was the 25-foot strip of ground a public highway? If so, and facts are sufficiently alleged and proven to show it to be, then, “no matter whether it is established by prescription, or by dedication, or under the right of eminent domain, it is a highway if there is a general right to use it for travel.” Elliott on Roads & Streets (2d Ed.) § 3; Houlton v. Carpenter, 29 Ind. App. 647, 64 N. E. 939.
[2] A fair definition of what constitutes a “dedication” is stated in 1 Bouv. Law Dict. (15th Ed.) 492, thus: “An appropriation of land to some public use made by the owner and accepted or such use by and on behalf of the public.” “Dedication is a gift of land by the owner for a way, and an acceptance of the gift by the public, either by some express act of acceptance, or by strong implication arising from obvious, convenient, or frequent and long-continued use, repairing, lighting, or other significant acts of persons competent to act for the public in that behalf.” Words and Phrases, vol. 2, p. 1912; Hemphill v. City of Boston, 8 Cush. (62 Mass.) 195, 54 Am. Dec. 749.
[3] The appellant's predecessor was a corporation duly organized, an artificial being created by the law for a certain purpose, and subject to the same laws as a natural being. As such it had the power to dedicate the 25-foot strip of ground in controversy to the general public as a highway in the same manner as an individual. Whether or not the strip of land was so dedicated was a fact to be determined by the jury, which found that the said tract had been so dedicated.
[4] As in this case a railroad corporation is and must be upon the same footing as an individual, it can dedicate its ground to public uses, and it may stand by and allow its land to be used for public purposes without making objections until the public have acquired easements and rights therein which are beyond the power of the railroad company to revoke. The doctrine of waiver and estoppel applies to a railroad company the same as to an individual. Pittsburg Ry. Co. v. Town of Crown Point, 150 Ind. 536, 50 N. E. 741.
This court, in City of Indianapolis v. Kingsbury, 101 Ind. 200, at page 213 (51 Am. Rep. 749), says: ...
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