Dalton v. The Cleveland, Cincinnati, Chicago And St. Louis Railway Co
| Decision Date | 04 March 1896 |
| Docket Number | 17,476 |
| Citation | 43 N.E. 130,144 Ind. 121 |
| Parties | Dalton v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Co |
| Court | Indiana Supreme Court |
From the Vigo Circuit Court.
The judgment is affirmed.
L. S Dalton and S. C. Davis, for appellant.
B. K Elliott and W. F. Elliott, for appellee.
The lower court denied the appellant's petition for an injunction, and that ruling is here presented as error arising upon the evidence. By the petition it was alleged that the appellant owned a lot in the village of Fontanet, on the line of appellee's railway and adjacent to its right-of-way, upon which lot appellant maintained a building for the combined purposes of a business house, a dwelling and a meeting place for social and benevolent societies; that the appellee was proceeding in the erection of a structure opposite and very near to the appellant's building, to be used as a coal chute for coaling its locomotives; that from the height and character of the structure it would greatly impair the access, the view, the light and the air to her building; that its use for the purposes aforesaid would cause unusual, loud, and offensive noises constantly, by day and by night, disturbing the sleep and impairing the use of the appellant's building for business, social, and residence purposes; that the use of said coal chute would produce great quantities of dust which would be blown into appellant's building, injuring the furniture, the stock in trade and the comfortable enjoyment of living within it; that the storage and handling of the coal would bring to appellant's premises and within her building the fumes of sulphur and the odors of other gases injurious to health and destructive of business in her building; that the escaping of steam, soot and smoke from the locomotives, frequently taking coal at said chute would not only disturb the occupants of her building by the noise, but would enter the building, to the annoyance and discomfort of the occupants; that said locomotives would drop fire about said chute, exposing it to destruction, greatly increasing the hazards from fire to her buildings. From these alleged causes general and special damages are alleged, and it is prayed that the further construction of said coaling station be enjoined.
There is no evidence that the structure will materially obstruct or impair the enjoyment of the appellant's property with respect to any of the easements in light, air or access. It is wholly within the appellee's right-of-way, does not reach the highway upon which the appellant's lot fronts and the building proper is not directly opposite to appellant's building, though a trestle, upon which cars are to be stored for unloading, does extend to a point near to said highway and directly south of the appellant's building. There being no such evidence, the appellee insists that though there may be conflict in the evidence upon the alleged injurious uses of the structure, this court should not pass upon...
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