Cummins ex rel. Mahan v. Evansville & Terre Haute Railroad Company

• Decision Date: 20 September 1888
• Docket Number: 14,290
• Citation: 18 N.E. 6,115 Ind. 417
• Parties: Cummins, Trustee, ex rel. Mahan, v. The Evansville and Terre Haute Railroad Company
• Court: Indiana Supreme Court

18 N.E. 6

115 Ind. 417

Cummins, Trustee, ex rel. Mahan, v. The Evansville and Terre Haute Railroad Company

No. 14,290

Supreme Court of Indiana

September 20, 1888

From the Sullivan Circuit Court.

The judgment is affirmed, with costs.

W. C Hultz, O. B. Harris and J. S. Bays, for appellant.

J. E Iglehart and E. Taylor, for appellee.

OPINION

Howk J.

This suit was commenced by appellant, Cummins, trustee of Jackson township, of Sullivan county, upon the relation of William H Mahan, supervisor of road district No. 2 in said township, as plaintiff, against the appellee as defendant, before a justice of the peace of said county. From the justice's judgment the cause was appealed to the court below. There defendant's demurrer to the complaint herein, for the alleged insufficiency of the facts therein to constitute a cause of action, was sustained. Plaintiff declined to amend his complaint or plead further, and thereupon the court adjudged that he take nothing by his suit, and that defendant recover of him its costs expended herein.

In this court error is assigned by plaintiff upon the sustaining of the demurrer to his complaint herein.

In his complaint plaintiff alleged that the defendant, on the 31st day of August, 1886, and on each and every succeeding day until the 9th day of October, 1886, unnecessarily and to the hindrance of passengers, obstructed a certain public highway in road district No. 2 of Jackson township, in Sullivan county, described as follows, to wit: (Description omitted), by then and there, and all of said time, building, constructing and maintaining a railroad track in, upon, along, across and over said highway, and by then and there, and all of said time, running and operating trains of cars, engines and locomotives upon and over said line of railroad track in such a manner as to then and there, and all of said time, interfere with the free use of said highway, and not to afford security for life and property; that the defendant then and there, and all of said time, utterly failed in every particular to restore said highway, so intersected, to its former state, and failed in every particular to restore said highway, so intersected, in a sufficient manner so as not to interfere with or impair its usefulness, or injure its franchises. Wherefore plaintiff demanded judgment for $ 175, for an attorney's fee of five dollars for his attorney, and for all proper relief.

In the absence of averment to the contrary, it must be assumed, we think, that appellee was incorporated as a railroad company, under the provisions of the general laws of this State providing for the incorporation of such companies, and was and is possessed of the general and special powers which those laws expressly confer upon such corporations, "subject to the liabilities and restrictions" expressed therein.

Among the powers so conferred, in the fifth clause of section 3903, R. S. 1881, in force since May 6th, 1853, and still in force, it was and is provided that such a corporation shall possess the power "to construct its road upon or across any * * * * highway, * * * so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the * * *...