Egbert v. Lake Shore & M.S. Ry. Co.

• Citation: 33 N.E. 659, 6 Ind.App. 350
• Case Date: March 16, 1893
• Court: Court of Appeals of Indiana

6 Ind.App. 350
33 N.E. 659

EGBERT et al.
v.
LAKE SHORE & M. S. RY. CO.

Appellate Court of Indiana.

March 16, 1893.

Appeal from circuit court, St. Joseph county; Daniel Noyes, Judge.

Action by Delilah Egbert and others against the Lake Shore & Michigan Southern Railway Company for damages to plaintiff's land. Judgment for defendant, and plaintiffs appeal. Reversed.

Andrew Anderson and Lueris Hubbard, for appellants. J. H. Baker, Geo. C. Green, and O. G. Getzen-Danner, for appellee.

GAVIN, J.

The appellants brought this action to recover damages for an injury to real estate. A trial resulted in a finding and judgment for the appellee. The facts out of which the controversy grew are as follows: On the 30th of March, 1852, Jeremiah H. Service owned and was in possession of the land described in the appellants' complaint, and now owned by them. Said Service, for a valuable consideration, conveyed a tract of land 100 feet wide for a right of way over and across his lands to the Northern Indiana Railroad Company, “with the right to construct and maintain a railroad and all necessary appurtenances across and upon the land above designated.” The appellants have acquired the title to these lands, and the appellee, by consolidation, has succeeded to all the rights of said Northern Indiana Railroad Company under said deed of conveyance. In 1853 the Northern Railroad Company constructed a railroad upon this right of way. The railroad so constructed continued to be used substantially as constructed until 1888. In 1881 the town of New Carlisle extended. Filbert street to the north, across the right of way of the appellee, and, also by proper proceedings, appropriated a strip of land 40 feet wide for a street, called “Zigler Street,” the fee thereof being in appellants. Zigler street, so laid out, lies north of, and adjoins the appellee's right of way so acquired of Service, and it also joins the extension of Filbert street. In 1888 the appellee, as a part of a general system of improving its roadbed, raised the grade of its roadbed along the above-mentioned right of way. This was done wholly on and within the company's right of way, except in so far as it extended beyond it to make the approaches for the street crossing, and was done in a careful and skillful manner. At the crossing of Filbert street the roadbed was raised 3 9-10ths feet. This made it necessary to fill in the approach to the crossing which was on and along Zigler street, extending for a distance of about 135 feet beyond the line of appellee's right of way, thereby cutting off and materially interfering with appellants' ingress to and egress from the lands which fronted on said approach. It is admitted that the fill on Zigler street was carefully and skillfully put in, and was necessary to raise the street to correspond with the increased height of the crossing.

There is but one question presented for our determination: Is the appellee liable for damages sustained by the appellants by reason of the filling of Zigler street, whereby access to their ground, fronting thereon, was cut off or materially interfered with? It is urged by appellee that it is not thus liable, upon three grounds: (1) Because the right to raise the street to correspond to the railroad is carried by and included in the grant of the original right of way by necessary implication; (2) because appellee, in making the change of grade, was only obeying the statute, and could thereby incur no liability; (3) because appellee was simply in pursuance of the statute exercising the functions of the municipal officers who controlled the street, and who would have had a lawful right to change the grade of the street, without liability except for negligence. We are unable to assent to either proposition. It would be carrying the doctrine of grant by implication beyond all reason

[33 N.E. 660]

to say that, where one grants a right of way across his land, he thereby releases, not only all damages which may result to his land from the construction of the road upon the strip granted, but that he must also be held to contemplate and release damages accruing from the extension of a fill beyond the limit of its right of way, and upon a street which was not in existence until nearly 30 years after the road was built, the fill being made necessary by reason of the company's voluntary change of the grade of its roadbed. In Railway Co. v. Williams, 92 Ala. 277, 9 South. Rep. 203, it was held that a grant of a right of way across a tract of land did not of itself operate as a release of damages occasioned by the change of grade of an abutting street so as to make it conform to the grade of the railroad which crossed it. The rights of the railroad company under the grant were restricted to the strip 100 feet in width, and, when it encroached upon the landowner outside of this strip, it became liable to him. Roushlange v. Railway Co., 115 Ind. 106, 17 N. E. Rep. 198.

Appellee's justification of its acts is based upon subdivision 5, § 3903, Rev. St. 1881, by which a railroad company is given the right to construct its road upon or across any highway which it may intersect, but it must restore the high way so intersected to its former state, or in a sufficient manner as not to unnecessarily impair its usefulness. The provisions of this section apply not only to highways in existence at the time of the building of the railroad, but to those subsequently and lawfully in existence. Railway Co. v. Smith, 91 Ind. 119. It is settled law in this state that the “owner of a lot abutting upon a street may have a peculiar and distinct interest in the easement in the street in front of his lot. This interest includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress to or egress from the lots.” “To the extent that...