Dantzer v. Indianapolis Union Ry. Co.

Citation39 N.E. 223, 141 Ind. 604
Case DateDecember 21, 1894
CourtSupreme Court of Indiana

141 Ind. 604
39 N.E. 223

DANTZER et al.
v.
INDIANAPOLIS UNION RY.
CO.1

Supreme Court of Indiana.

Dec. 21, 1894.


Appeal from circuit court, Marion county; A. C. Snyder, Judge.

Action by Catherine Dantzer and others against the Indianapolis Union Railway Company to recover for damages sustained by reason of buildings erected so near to plaintiffs' premises as to cut off certain approaches thereto. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.


Claypool & Claypool, W. A. Ketcham, Duncan & Smith, and A. Seidensticker, for appellants. Baker & Daniels and F. Winter, for appellee.

HACKNEY, J.

Formerly, the appellee's station for the reception and discharge of passengers for all of the railways entering the city of Indianapolis was bounded on the north by Louisiana street, on the east by Meridean street, on the south by McNabb street, and on the west by Illinois street. McNabb street extended but to the intersections of Meridean and Illinois streets. One square south of McNabb street, and parallel with that street, was and is South street, extending east and west, and connecting with numerous streets of said city running north and south. Between McNabb and South streets, about midway, and on the west side of Illinois street, were, and ever since have been, the lots of the appellants, upon which was erected and maintained a public hotel. At that time Illinois street extended for miles north and south of appellants' property, which abutted upon it, and was free to public travel upon its surface, excepting as the appellee's railway tracks crossed the same. Beneath the surface of said Illinois street, and under said railway tracks, had been constructed and used a tunnel for public travel between Georgia street (the second street north of said station) and said South street. These conditions existing in June, 1886, the common council of said city vacated that part of Illinois street beginning 50 feet south of the north line of Louisiana street (the first street north of said station), and extending south for the distance of 210 feet, and also vacated a portion of McNabb street, that is to say, a strip 35 feet in width off of the north side of said street. Soon after so vacating said streets, the appellee tore down its station

[39 N.E. 224]

house and built anew, extending its car sheds and buildings over that part of Illinois street so vacated, and inclosing that part of said street, and guarding the former north line of McNabb street, with iron fences, and along the vacated portion of McNabb street, to within one foot of the center of said street, it constructed a grade above the old grade of the street, and placed thereon two railway tracks. The north line of the appellants' property is 96 feet south of any of the obstructions as added to Illinois street, and the south line thereof is 156 feet from any of such obstructions. The walls guarding the southern entrance to said tunnel occupy such part of Illinois street that on the west thereof there is a street bed of 19 feet to the sidewalk curb, on the east there is a street bed of 19 feet to the sidewalk curb, and on the north there is a street bed of 23 feet between the coping and the center line of McNabb street, thus leaving a passageway around the sides and ends of said tunnel. Since so closing Illinois street, the premises of appellants can be reached from the southern part of the city by the same streets and courses that formerly existed, and from the northern part of the city by the ways which existed formerly, excepting by the surface of Illinois street over said distance of 210 feet so vacated, and excepting that part of McNabb street so vacated. The appellant's property and the block in which it is situated are accessible from points on Illinois street north of the Union Station through said tunnel, or by cross streets to Meridean street, thence south on Meridean street to McNabb street or South street, and thence west to Illinois street, south of the vacated portion thereof. The changes occasioned by vacating the streets named have required persons who might desire to reach the property of the appellants from North Illinois street, or in passing from said property to North Illinois street, to travel the more inconvenient route through the tunnel, or the more circuitous route by the way of Meridean and McNabb or South streets, and in traveling McNabb street to be limited to the south sidewalk, or to the street bed narrowed to 25 feet. The appellants, making these altered conditions the basis of their claim for damages, sued the appellee in the circuit court, and alleged a depreciation of the value of their property and property rights in the sum of $30,000, and that in the proceedings for said vacation no damages had been assessed or tendered. The lower court sustained a demurrer to the several paragraphs of complaint, and that ruling is here assigned as error.

Under the bill of rights in the constitution of Indiana (Rev. St. 1881, § 57; Rev. St. 1894, § 57), which guaranties that “every man for injury done him in his * * * property, * * * shall have remedy by due course of law,” and under the common law, the appellants insist upon a right of recovery. Though the obstructions complained of are remote from the lines of their property and do not encroach upon the street immediately in front of their property, and while they have ways of ingress and egress to and from their building and lots to and from the same directions formerly existing, it is contended that the appellants, by virtue of their ownership of said property, have a property right in the streets at the points of obstruction; that the right to use the streets for access to their building and lots is a property right not confined to the immediate front of their lots, and not dependent upon an ownership of the fee in the street in front of, or remote from, their lots; and that any destruction or impairment of that right is an injury for which they have a remedy. The appellee concedes that under said constitutional guaranty, and under the common law, even in the absence of that guaranty, there is a remedy for an injury to one's property. It is conceded, also, that the appellants held, in addition to their property in the soil of their lots, a property right in the street,-that is to say, the appendant right of access, or easement of access, in front of their lots; but it is maintained that under the facts in this case no legal injury exists, no property right of the appellants has been invaded, and, if any injury had been suffered it is damnum absque injuria. At least two cases in this state have defined the extent of that appendant property right of access. In Haynes v. Thomas, 7 Ind. 38, it is said: “These decisions establish the principle that, besides the right of way which the public has of passage over a street in a town or city, there is a private right which passes to the purchaser of a lot upon the street, and as appurtenant to it, which he holds by implied covenant that the street in front of his lot shall forever be kept open to its full width.” In the case of Tate v. Railroad Co., 7 Ind. 479, the court quotes the above passage from the case of Haynes v. Thomas, and says, in application of the principle to the facts of the case, that “the person, whether natural or artificial, causing the obstruction, is liable to the owners of the adjoining lots for the injury. It is thus carefully limited to those owning lots fronting on the street at the point of obstruction. That is the case made in the record. Such owners, only, seem to sustain special injury.” These cases, and probably others in this state, hold that this property right cannot be taken or obstructed, even with legislative sanction. We think we may safely assert, however, that the obstruction of the easement of access need not always be upon the front of the lot whose owner is affected, but that if the obstruction, though remote, renders access to such lot impossible, or impairs it in a substantial manner, at the point where it abuts upon the street, the property right of the lot owner is invaded and he may...

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50 practice notes
  • Hubbell v. City of Des Moines, No. 30131.
    • United States
    • United States State Supreme Court of Iowa
    • October 2, 1915
    ...Law, 46, 85 Atl. 1028;In re Goldman (Sup.) 132 N. Y. S. 607;Williams v. Carey, 73 Iowa, 194, 34 N. W. 813;Dantzer v. Indianapolis Ry. Co., 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769, 50 Am. St. Rep. 343;Horton v. Williams, 99 Mich. 423, 58 N. W. 369;Harrington v. Iowa Central Ry. Co., 126 ......
  • Hubbell v. City of Des Moines, 30131
    • United States
    • United States State Supreme Court of Iowa
    • October 2, 1915
    ...46, 85 A. 1028; In re Goldman, 132 N.Y.S. 607; Williams v. Carey, 73 Iowa 194, 34 N.W. 813; Dantzer v. Indianapolis Union R. Co., (Ind.) 141 Ind. 604, 39 N.E. 223; Horton v. Williams, (Mich.) 99 Mich. 423, 58 N.W. 369; Harrington v. Iowa Central Railway Co., 126 Iowa 388, 102 N.W. 139; Ende......
  • Canady v. Coeur d'Alene Lumber Co.
    • United States
    • Idaho Supreme Court
    • December 23, 1911
    ...101 N.Y. 411, 5 N.E. 353; East St. Louis v. O'Flynn, 119 Ill. 200, 10 N.E. 395, 59 Am. Rep. 795; Dantzer v. Indianapolis Union Ry. Co., 141 Ind. 604, 50 Am. St. 343, 39 N.E. 223, 34 L. R. A. 769.) The claim of appellant in the case at bar is one of a public nature in which she seeks to enfo......
  • Powell v. McKelvey, 6294
    • United States
    • United States State Supreme Court of Idaho
    • November 20, 1935
    ...953, 2 L. R. A., N. S., 269; Long v. Wilson, 119 Iowa 267, 93 N.W. 282, 97 Am. St. 315, 60 L. R. A. 720; Dantzer v. Indianapolis etc. Co., 141 Ind. 604, 39 N.E. 223, 50 Am. St. 343, 34 L. R. A. 769.) The legislature in 1893 passed an act validating all plats theretofore filed regardless of ......
  • Request a trial to view additional results
50 cases
  • Hubbell v. City of Des Moines, No. 30131.
    • United States
    • United States State Supreme Court of Iowa
    • October 2, 1915
    ...Law, 46, 85 Atl. 1028;In re Goldman (Sup.) 132 N. Y. S. 607;Williams v. Carey, 73 Iowa, 194, 34 N. W. 813;Dantzer v. Indianapolis Ry. Co., 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769, 50 Am. St. Rep. 343;Horton v. Williams, 99 Mich. 423, 58 N. W. 369;Harrington v. Iowa Central Ry. Co., 126 ......
  • Hubbell v. City of Des Moines, 30131
    • United States
    • United States State Supreme Court of Iowa
    • October 2, 1915
    ...46, 85 A. 1028; In re Goldman, 132 N.Y.S. 607; Williams v. Carey, 73 Iowa 194, 34 N.W. 813; Dantzer v. Indianapolis Union R. Co., (Ind.) 141 Ind. 604, 39 N.E. 223; Horton v. Williams, (Mich.) 99 Mich. 423, 58 N.W. 369; Harrington v. Iowa Central Railway Co., 126 Iowa 388, 102 N.W. 139; Ende......
  • Canady v. Coeur d'Alene Lumber Co.
    • United States
    • Idaho Supreme Court
    • December 23, 1911
    ...101 N.Y. 411, 5 N.E. 353; East St. Louis v. O'Flynn, 119 Ill. 200, 10 N.E. 395, 59 Am. Rep. 795; Dantzer v. Indianapolis Union Ry. Co., 141 Ind. 604, 50 Am. St. 343, 39 N.E. 223, 34 L. R. A. 769.) The claim of appellant in the case at bar is one of a public nature in which she seeks to enfo......
  • Powell v. McKelvey, 6294
    • United States
    • United States State Supreme Court of Idaho
    • November 20, 1935
    ...953, 2 L. R. A., N. S., 269; Long v. Wilson, 119 Iowa 267, 93 N.W. 282, 97 Am. St. 315, 60 L. R. A. 720; Dantzer v. Indianapolis etc. Co., 141 Ind. 604, 39 N.E. 223, 50 Am. St. 343, 34 L. R. A. 769.) The legislature in 1893 passed an act validating all plats theretofore filed regardless of ......
  • Request a trial to view additional results

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