Evansville & Terre Haute Railroad Company v. State ex rel. Town of Fort Branch

• Decision Date: 13 January 1898
• Docket Number: 18,137
• Court: Indiana Supreme Court
• Parties: Evansville & Terre Haute Railroad Company v. State, ex rel. Town of Fort Branch

49 N.E. 2

149 Ind. 276

Evansville & Terre Haute Railroad Company v. State, ex rel. Town of Fort Branch

No. 18,137

Supreme Court of Indiana

January 13, 1898

From the Gibson Circuit Court.

Affirmed.

John E Iglehart, Edwin Taylor and John H. Miller, for appellant.

W. W Medcalf and W. E. Stilwell, for appellee.

OPINION

Monks, J.

This was an action by appellee to compel appellant, by writ of mandamus, to construct a suitable and safe crossing over its tracks at the crossing of two streets in the town of Fort Branch. Appellant appeared, and filed a general denial to the complaint for the alternative writ. No alternative writ was issued. The court, at request of appellant, made a special finding of the facts, and stated conclusions of law thereon, and, over a motion in arrest of judgment and a motion by appellant for judgment in its favor, rendered judgment in favor of the appellee, and ordered a peremptory writ of mandate as to one of said streets.

The errors assigned call in question the sufficiency of the complaint, and the action of the court in overruling appellant's motion for a judgment in its favor.

The first objection urged to the complaint is that it required the court to perform a legislative act, and enact an ordinance in behalf of appellee. It is not alleged that the relator ever adopted any ordinance in regard to said crossings. In such case, the rights of the relator are the same as those of a township trustee in regard to highways. The relator had the right to enact an ordinance for the improvement of its streets, and fix the grade of the same; but the failure to do so did not relieve appellant of its duty to properly construct the crossings over its tracks where the same crossed the streets of said town. Indianapolis, etc., R. R. Co. v. State, ex rel., 37 Ind. 489, 502, 504. This duty is imposed by statute in this State and also exists independent of any statute. Fifth clause of section 5153, Burns' R. S. 1894 (3903, R. S. 1881); 3 Elliott on Railroads, section 1092, 1102, and cases cited; Indianapolis, etc., R. R. Co. v. State, ex rel., supra; Louisville, etc., R. R. Co. v. Smith, 91 Ind. 119; Evansville, etc., R. R. Co. v. Carvener, 113 Ind. 51, 14 N.E. 738; Cummins, Tr., v. Evansville, etc., R. R. Co., 115 Ind. 417, 18 N.E. 6; Lake Shore, etc., R. W. Co. v. McIntosh, 140 Ind. 261, 38 N.E. 476; Lake Erie, etc., R. R. Co. v. Cluggish, 143 Ind. 347, 351, 42 N.E. 743; Cincinnati, etc., R. R. Co. v. Claire, 6 Ind.App. 390, 394, 33 N.E. 918; Egbert v. Lake Shore, etc., R. W. Co., 6 Ind.App. 350, 33 N.E. 659; 4 Am. & Eng. Ency of Law, 907, 908. This duty of railroad companies is the same whether the highway was laid out and opened before or after the railroad was built. Louisville, etc., R. R. Co. v. Smith, supra; Lake Erie, etc., R. R. Co v. Cluggish, supra; Egbert v. Lake Shore, etc., R. W. Co., supra, p. 353.

The next objection is that the complaint fails to allege a demand on the part of the relator that appellant construct said crossings. The refusal of appellant to construct said crossings is alleged in the complaint, and, even if the demand was necessary, as insisted by appellant, which we do not decide, the same was unnecessary after such refusal. In State, ex rel., v. Board, etc., 45 Ind. 501, the court, on p. 503, said: "In order to lay the foundation for issuing the writ, there must have been a refusal to do that which it is the object of the writ to enforce, either in direct terms, or by circumstances distinctly showing an intention in the party not to do the act." The same doctrine is declared in Lake Erie, etc., R. R. Co. v. State, ex rel., 139 Ind. 158, p. 160, 38 N.E. 596. It is clear that the objections urged to the complaint are not tenable.

It is insisted by appellant that the court erred in overruling its motion for a judgment in its favor on the facts found, because it is alleged in the complaint that appellant's road was constructed over the streets named, and the facts found are that when said road was constructed, said streets were not laid out, platted, or used as streets, and that, for all that appears, said railroad was constructed before the town of Fort Branch was known.

It is alleged in the amended complaint, in substance, that appellant built, operated, and maintained its tracks, sidetracks, and switches along and across the streets known as "Walnut street" and "Williams street." Under such allegations, it was sufficient to prove that said appellant either built or operated and maintained its tracks across said streets, or either of them. It was not necessary to prove, or for the court to find, that said streets, or either of them, were public highways, and that said railroad track was built on and across the same.

It is not material whether said streets, or either of them, became such before or after the railroad was built. Neither is it material how the same became streets, whether by dedication or otherwise, or whether before or after the town of Fort Branch was incorporated. If said streets, or either of them, or any part thereof, were dedicated to the public use before the town of Fort Branch was known, or before it was incorporated, no change in the form of government or its territorial boundaries would defeat such dedication. Elliott on Roads and Streets, 88.

It is next insisted by appellant that the motion for a judgment in its favor should have been sustained, because the special finding does not show any public highway across its right of way at the points alleged in the complaint, either by dedication or otherwise. The part of the finding concerning said streets is as follows: "Prior to the year of 1890 the lands on the east and west side of said railway, and adjacent thereto and extending several blocks east and west, were platted and laid off into town lots, as a part of said town, and both Walnut and Williams streets were designated by the owners of the land as streets of said town, of the width of forty feet, and by said plats shown to extend east from the east line of appellant's right of way, and west from the west line of appellant's right of way. That about the years 1881 or 1882, the supervisor of highways, acting under instructions from the township trustee, graded Walnut street to the east side of the railroad track, and built an approach over a ditch to said track, and about the same time the railroad company graded and planked their three tracks at said crossing, and the work then done made a safe and convenient crossing for horses, vehicles, and footmen along Walnut street, and across appellant's tracks. Said crossing was kept in repair and used by the public as a public highway for a period of six or seven years. That said use of Walnut street and crossing of appellant's tracks was extensive, being used...