Dantzer v. The Indianapolis Union Railway Company

• Decision Date: 21 December 1894
• Docket Number: 16,533
• Parties: Dantzer et al. v. The Indianapolis Union Railway Company
• Court: Indiana Supreme Court

39 N.E. 223

141 Ind. 604

Dantzer et al. v. The Indianapolis Union Railway Company

No. 16,533

Supreme Court of Indiana

December 21, 1894

Petition for a Rehearing Overruled June 14, 1895.

From the Marion Circuit Court.

Judgment affirmed.

S. C Claypool, W. A. Ketcham, J. S. Duncan, C. W. Smith, A Seidensticker and J. W. Claypool, for appellants.

F. Winter, A. Baker and E. Daniels, for appellee.

Hackney, J. Howard, J. McCabe, J.

OPINION

Hackney, J.

Formerly the appellees' 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 Meridian street, on the south by McNabb street and on the west by Illinois street. McNabb street extended but to the intersections of Meridian 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 appellants, upon which was erected and maintained a public hotel. At that time Illinois street extended for miles north and south from 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 fifty 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 thirty-five feet in width off the north side of said street. Soon after so vacating said streets the appellee tore down its station house and built anew, extending its car sheds and buildings over that part of Illinois street so vacated and enclosing 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 ninety-six 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 nineteen feet to the sidewalk curb, on the east there is a street bed of nineteen feet to the sidewalk curb, and on the north there is a street bed of twenty-three feet between the coping and the center line of McNabb street, thus leaving a passage way 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 appellants' 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 Meridian street, thence south on Meridian 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 Meridian and McNabb or South streets, and in traveling McNabb street to be limited to the south sidewalk or to the street bed narrowed to twenty-five 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 (R. S. 1881, section 57; R. S. 1894, section 57), which guarantees 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 has 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. Ohio, etc., R. R. Co., 7 Ind. 479, the court quotes the above passage from the case of Haynes v. Thomas, supra, 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 can not 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 immediate 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 recover. To illustrate this proposition, if a street were fully obstructed on either side of one's lot, so that the lines of the lot could not be reached, access would be denied to the lot owner, though the street in front of his lot had upon it no obstructions. The property rights of the lot owner, as against the public, are coterminous with the lines of his lot, but that property right may be obstructed and its uses defeated by cutting off ingress and egress to and from such lines from points upon the street beyond such lines. In such case there should be and is a remedy. This conclusion is held in the case of Pennsylvania Co. v. Stanley, 10 Ind.App. 421, 37 N.E. 288, where the remote obstruction of an alley created a cul-de-sac, which it was necessary to enter to gain access to the plaintiffs' abutting lot, but from which there was no exit. The holding of the case cited finds support from the rule, as to the character of interest of the lot owner in the street, as stated in Indiana, etc., R. W. Co. v. Eberle, 110 Ind. 542, 11 N.E. 467, and see Buhl v. Fort, etc., Co., 98 Mich. 596, 608, 57 N.W. 829. City of Indianapolis v. Kingsbury, 101 Ind. 200, is cited by appellants as enlarging the property rights of a lot owner in the street beyond that stated by us and as carrying it throughout the length of the street. In that case it was held that one who dedicates a street, as part of an addition to a city, and sells a lot with reference to such street, his grantee takes, by implied grant, such an interest in the street so dedicated as that said grantor could not vacate the street and thereby defeat that implied grant. No question is there made as to the rights of the public in such street nor as to municipal...