Decker v. Evansville Suburban & N. Ry. Co.

• Decision Date: 01 February 1893
• Citation: 133 Ind. 493,33 N.E. 349
• Parties: DECKER v. EVANSVILLE SUBURBAN & N. RY. CO.
• Court: Indiana Supreme Court

133 Ind. 493

33 N.E. 349

DECKER

v.EVANSVILLE SUBURBAN & N. RY. CO.

Supreme Court of Indiana.

Feb. 1, 1893.

Appeal from circuit court, Warrick county; G. L. Reinhard, Judge.

Action by Christian Decker, Sr., to enjoin the Evansville Suburban & Newburgh Railway Company from laying its track on Fifth street, in the city of Evansville. From a judgment for defendant, plaintiff appeals. Affirmed.

J. S. & C. Buchanan and Peter Maier, for appellant. D. B. Kumler and Gilchrist & De Bruler, for appellee.

COFFEY, C. J.

This action was commenced by the appellant against the appellee in the Vanderburgh circuit court, seeking to enjoin the appellee from layingits railroad track on Fifth street, in the city of Evansville. The complaint alleges, among other things, that the appellant is the owner of a lease, for the period of 99 years from its date, of lot No. 228 in the donation enlargement to the city of Evansville, which lot fronts on Fifth street; that by virtue of his lease he is entitled to the possession of the street in front of the lot, to its center, subject to the right of the public to use the same as a highway; that he has erected a valuable business house on the lot adjoining said Fifth street. He alleges that the city of Evansville has granted to the appellee the right to lay its railroad track on Fifth street in front of appellant's business house, which it is proceeding to do without first assessing and tendering to the appellant the damages he will sustain by reason of the appropriation of his property. Prayer for an injunction. The venue of the cause was changed from the Vanderburgh to the Warrick circuit court, where a trial was had, resulting in a special finding of the facts proven, with conclusions of law thereon, upon which the court rendered judgment for the appellee. The contention of the appellant is that the court erred in its conclusions of law.

It appears from the finding of facts that the appellant has erected a business house on the lot described in the complaint, fronting Fifth street. Fifth street, in the city of Evansville, adjoining the appellant's building, is not a regularly laid out and platted street, but was formerly the bed of the Wabash & Erie Canal. The canal was abandoned in the year 1864 or 1865. The canal in front of the appellant's house was filed by him with rubbish, and with the dirt removed when he constructed his cellar. The remainder of the canal, on what is now known as “Fifth Street,” was filled by the city. This canal had been filled, improved, and used as a street for more than 20 years prior to the commencement of this suit. Josephus Collett, under a chain of conveyances from the trustees of the Wabash & Erie Canal Company, claims to be the owner of the land, in fee, covered by Fifth street, subject to the right of the public to use it as a street, and is claiming from the appellee damages for its use as a railway. The city of Evansville, by an ordinance duly passed by its common council, has granted to the appellee the right to lay its railroad tracks on this street, and at the time this suit was commenced it was proceeding to put down its tracks without assessing or paying any damages sustained by property owners on the street. Under these facts the court reached the conclusion that the appellant was not entitled to a decree enjoining the appellee from putting its track on Fifth street, in the city of Evansville. The propriety of this conclusion is the only question in the case.

When the owner of land lays out a town upon the same, platting it into lots, streets, and alleys, and causing such plat to be recorded, under the provisions of our statute upon the subject, he conveys to the public a mere easement in the streets and alleys, retaining in himself the fee simple of the land over which such streets and alleys pass. So, when he conveys to a purchaser a lot abutting upon such street, the fee simple to the center of the street upon which the...