Erwin v. Central Union Telephone Co.
| Decision Date | 01 April 1897 |
| Docket Number | 18,101 |
| Citation | 46 N.E. 667,148 Ind. 365 |
| Parties | Erwin v. Central Union Telephone Company et al |
| Court | Indiana Supreme Court |
Rehearing Denied Sept. 24, 1897, Reported at: 148 Ind. 365 at 371.
From the Marion Circuit Court.
Affirmed.
E. E Gates and G. E. Hume, for appellant.
R. O Hawkins, H. E. Smith and J. B. Curtis, for appellees.
The appellant, Daniel P. Erwin, by his complaint in the lower court, sought to enjoin the appellees, the Central Union Telephone Company and the city of Indianapolis, from laying conduits, for conducting electric wires to be used in a general system of telephoning in said city, within the limits of the sidewalk along the south side of Ohio street, from Pennsylvania street eastward two hundred two and one-half feet. The complaint alleged the ownership by the appellant of three lots on the south side of said sidewalk for said distance of two hundred two and one-half feet east from Pennsylvania street, and that the space beneath the surface of said sidewalk along said distance was valuable and necessary for the uses of a large five-story hotel and business building, covering said lots, for sub-cellars or vaults which he, the appellant, had the right to construct, which he contemplated the early construction of and of which he would be deprived by the location of conduits. It was alleged that the company was proceeding to lay said conduits pursuant to a contract with the city authorizing the use for that purpose of the "streets, avenues, alleys and public places of said city;" said contract further providing that the work "should not interfere with existing surface or underground structures, including * * * sidewalks" any and all of which "must be replaced by said company."
It was alleged, also, that prior to the making of said contract the city had by various ordinances recognized the right of appellant to construct vaults, cellars, etc., under abutting sidewalks, and that he had not agreed in any manner to the use of said sidewalk by said company.
The circuit court sustained the demurrer of the appellees to said complaint, and that ruling presents the only questions to be reviewed. Appellees have not favored us with brief or argument in support of the ruling of the lower court, and we are not advised as to the theory upon which that ruling was made. The brief of the appellant's learned counsel urges several propositions against the ruling of the trial court, that which is at the basis of all others being that the appellant was the owner in fee simple of the ground over which the sidewalk is laid. It is, of course, recognized that the public hold an easement for the purposes of travel upon the surface, but it is claimed that the use to which it is proposed to subject the earth beneath the walk is a new servitude, not contemplated in the dedication of the street to public uses.
It must be conceded that the appellant's theory can not stand without allegations sufficient to require the inference that he is the owner of the fee in the soil to be invaded. The exact allegation in this respect is that he "is the owner in fee simple of the following described real estate, to-wit: Lots 10, 11, and 12, in square 44, in the city of Indianapolis, county of Marion, State of Indiana, having a frontage on the south side of Ohio street of 202 1/2 feet." There is an absence of allegation that the appellant owned the fee in the walk or street, or that the walk or street was dedicated to the public use by one who at the time owned the fee in both the street and the lots, or by one who had ever owned the lots. In other words, from any allegation it does not appear that the entire street, including sidewalks, was not or may not have been dedicated by the owner of the lots on the north side of Ohio street, and that the fee belonged to and still goes with such lot. This suit does not relate to any surface use of the sidewalk, or to the impairment of any of the easements of ingress, egress, light and air. It relates alone to an act imposing a servitude upon the fee, in no manner affecting a right which the appellant might claim independently of an ownership of the fee. As a question of pleading, therefore, the inquiry is presented as to whether a right which could only arise from an ownership of the fee will be presumed to exist without an allegation of the ownership of the fee. As a general proposition allegations must be stronger than to merely suggest an inference, they must be so strong as to enforce the inference which is necessary. Brown v. Brown, 133 Ind. 476, 32 N.E. 1128; Nysewander v. Lowman, 124 Ind. 584, 24 N.E. 355; ...
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