Gold v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company

Decision Date28 March 1899
Docket Number17,323
Citation53 N.E. 285,153 Ind. 232
PartiesGold et al. v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company
CourtIndiana Supreme Court

Rehearing Denied Oct. 12, 1899.

From the Marion Circuit Court.


J. E Scott, Ayres & Jones, H. C. Allen, J. W. Kern and J. E Bell, for appellants.

S. O. Pickens, for appellee.

Jordan, J. Hadley, J.


Jordan, J.

On the 6th day of June, 1891, appellee, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, instituted this action, making the appellants, the trustee of Center township, Marion county, Ind., the supervisor of road district number two, and the board of public works of the city of Indianapolis, defendants thereto, whereby it sought to enjoin the opening of a certain public highway crossing the tracks of appellee's railroad. On May 3, 1892, an amended complaint was filed, which the court, on demurrer, adjudged to be sufficient; and, under the issues joined between the parties, a trial resulted in the court rendering a judgment perpetually enjoining the opening of said highway across the road and tracks of the appellee.

The principal question involved relates to the sufficiency of the amended complaint to entitle appellee to an injunction. The facts disclosed (among others) by the complaint, essential to the point in controversy, appear to be as follows: Appellee is a duly organized railroad corporation, engaged as a common carrier, in operating lines of railroads in this and other states. On November 14, 1889, William Rupp and other resident freeholders of Center township, Marion county, Indiana, presented to the board of commissioners of that county a petition asking for a change of a certain public highway; describing therein the beginning and route of the proposed change, and also giving in said petition the names of the several owners and occupants of the lands through and over which the proposed highway would run, and which would be affected by the proposed change. Due notice of the presentation of this petition as required by the statute relative to proceedings instituted before a board of commissioners to locate, vacate, or change a public highway, seems to have been given in the manner and for the time provided.

On the 3rd day of December, 1889, at a regular term of the board of commissioners, the said petition came on before said board for hearing; and, after hearing the same, the board entered an order of record appointing three persons as viewers to view the proposed change of the highway; and said viewers were directed by the order of the board that if, in their opinion, the contemplated change of the highway would be of public utility, they mark and lay out the new road to the width of sixty feet, and that they report their doings to the board at its next regular session.

On March 13, 1890, at the regular session of the board, the viewers reported that the proposed change in the highway would be of public utility, and stated in their said report that they had marked and laid out said new way to the width of sixty feet, describing the same, and the course thereof, and stating also in the report the names of the several persons through whose lands the said highway, as marked and laid out by them, would run; the names of the owners and occupants of the land mentioned in said report being the same as those stated in the petition. It was thereupon ordered by the board that the highway, as described in the report, be opened to the width of sixty feet, and kept in repair, and that the county auditor notify the township trustee of such change, etc. A copy of this order, it seems, was transmitted to the proper township trustee, who caused a copy of the order to be entered at length upon the township record, and caused notice thereof to be given to the supervisor of road district number two, in which said highway was located.

In November, 1883, the Chicago, St. Louis & Pittsburgh Railroad Company, a duly organized and incorporated railroad company, owning and operating lines of railway at that time in this and other states, by virtue of the power of eminent domain entered upon and appropriated for its use, in the operation and maintenance of its line of railroad, a certain described strip of land, situated in said township and county, for the purpose of locating thereon yards and switching tracks. Soon after the acquisition of this ground by such railroad company, and prior to the beginning of said proceedings before the board of commissioners to change said highway, said company located and constructed on this ground a system of storage, transfer, switching tracks, etc., all of which were necessary and indispensable to the convenient use and successful operation of its railroad; and said land was used by said company for said purpose until the appellee succeeded to the rights and property of said railroad company, as hereinafter mentioned. Appellee has, from the time of said succession until the beginning of this action, used this ground exclusively for said railroad purposes.

It appears that the proposed change in the proceedings before the board of commissioners was to locate the highway in question across and over this strip of land and the railroad track or tracks thereon, as then owned and maintained by said Chicago, St. Louis & Pittsburgh Railroad Company. The highway, as changed, was marked out and located by the viewers over and across this strip of land and the tracks of said company thereon, and was ordered by the board of commissioners to be opened accordingly. To prevent appellants from enforcing this order by opening the highway in controversy over this land and the railroad tracks thereon, as now maintained by the appellee, the injunction herein was awarded.

It is further disclosed that the Chicago, St. Louis & Pittsburgh Railroad Company owned and occupied this land as a right of way from the time of its acquisition, in 1883, until the 1st day of October, 1890. This company, as disclosed, was named and stated in the petition presented to the board in the highway proceedings as one of the property owners and occupants over whose lands the proposed change of the road was to be located, and also in the notice given in regard to said petition; and the report of the viewers made to the board also contained a similar statement.

On September 1, 1890, appellant Charles H. F. Mankedick, as supervisor of road district number two in said Center township, gave the said Chicago, St. Louis & Pittsburgh Railroad Company (at that time the owner and occupant of said land) a notice in writing to remove its fences situated thereon, on or before November 5th following, in order that the highway might be opened as directed by the board's order. On October 1, 1890,--six months and over after the final order to open the highway in controversy was entered by the board of commissioners, and after the notice given by the supervisor, as mentioned, to remove the fences,--appellee, by virtue of consolidation, succeeded to all the property rights and franchises of the said Chicago, St. Louis & Pittsburgh Railroad Company, including the ground and tracks over which said supervisor was proposing, under the order of the board of commissioners, to open the highway in question. After the final order of the board was made in said proceeding, but prior to the commencement of this action, a part of the land through which the proposed highway was laid out and ordered to be opened was annexed to the city of Indianapolis; and for that reason, it appears, the board of public works of that city was made a party defendant to the action. The complaint also alleges that said supervisor, under the order of the board and the notice given by him, threatens to open said highway across this land, and over and across the tracks and yards of appellee, as used and maintained thereon, and that he will do so, unless enjoined. It is also averred in the complaint that said highway, if opened, would not be of public utility, and that its opening will result in great and irreparable damage to appellee, and would so interfere in the use and operation of its railroad as to render the same useless, etc.

The proceedings to change the highway in question, before the board of commissioners, in the main, appear to be regular and substantially in accord with the provisions of the statute conferring jurisdiction upon boards of commissioners relative to the laying out and change of public highways. Counsel for appellants insist that the order of the board of commissioners which the road supervisor was attempting to enforce by opening the highway across the ground and tracks in question is conclusive, and not open to a collateral attack. The learned counsel for appellee, in response to this insistence, says: "We have no contention with counsel, or with the authorities cited in support of their argument, that the proceedings of a board of county commissioners are conclusive against collateral attack, provided the board has jurisdiction over the subject-matter, and power to enter its order or judgment. But our contention here is that the board of commissioners of Marion county did not have jurisdiction of the subject-matter, and had no power to make the order in respect to the alleged highway in question, and therefore the proceedings in question are null and void. This is no longer an open question in this court, for exactly this question has been expressly decided by this court in favor of our contention in five different cases, viz.: Baltimore, etc., R. Co. v. North, 103 Ind. 486, 3 N.E. 144; City of Valparaiso v. Chicago, etc., R. Co., 123 Ind. 467, 24 N.E. 249; City of Seymour v. Jeffersonville, etc., R. Co., 126 Ind. 466, 26 N.E. 188; City of Ft. Wayne v....

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