Graham v. Chicago, I.&L. Ry. Co.

• Decision Date: 18 May 1906
• Docket Number: No. 5,200.,5,200.
• Citation: 77 N.E. 1055,39 Ind.App. 294
• Court: Indiana Appellate Court
• Parties: GRAHAM v. CHICAGO, I. & L. RY. CO.

39 Ind.App. 294

77 N.E. 1055

GRAHAM

v.CHICAGO, I. & L. RY. CO.

No. 5,200.

Appellate Court of Indiana.

May 18, 1906.

On petition for rehearing. Overruled.

For former opinions, see 77 N. E. 57, and 74 N. E. 541.

Stotensburg & Weathers, E. H. Bruden, and H. M. Dowling, for appellant. E. C. Field, H. R. Kurrie, and Ed. E. Mitchell, for appellee.

ROBY, C. J.

The argument in support of this petition is principally based upon the assertion that section 5153, Burns' Ann. St. 1901, does not give the railroad company the right to cross a stream such as the one shown in the case at bar, “because the right exists independent of the statute, and it was in no way enlarged by it”; that “the statute relied on *** in so far as it refers to water courses, gives no rights except as to navigable streams”; that the effect of the obstruction complained of is to create a private and not a public nuisance. By sections 1, 2, and 3 of an act in force May 6, 1853 (1 Rev. St. 1852, pt. 1, p. 409, c. 83; 2 Burns' Rev. St. 1901, §§ 5134, 5135, and 5136), provision is made for the formation of a corporation for the purpose of constructing, owning, and maintaining a railroad. Section 13 of said act, being section 5153, Burns' Rev. St. 1901, confers upon such corporation certain powers which are thereunder expressly made subject to the liabilities and restrictions expressed. These powers as enumerated in the various subdivisions may be epitomized as follows: (1) To make necessary examination and survey for the proposed road; to enter upon the lands or waters of any person “but subject to responsibility for all damage which they shall do thereto.” (2) To take voluntary grants and donations. Real estate thus received “to be held and used” for the purpose of such grants only. (3) To purchase and hold lands and other property necessary to accomplish the objects for which it is created, “but not until compensation shall have been paid *** or deposited ***.” (4) To lay out its road, and take lands necessary for its proper construction. (5) “To construct its road upon or across any stream of water or water course, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or water course, road, or highway thus intersected, to its former state or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.” (6) To cross other railroads. (7) To purchase lands in order that it may change the line of its road. (8) To transport persons and property by steam or other mechanical power, and receive compensation therefor. (9) To erect and maintain necessary buildings. (10) To regulate traffic over its line.

Sections 14, 15, 16, 17, and 18 of said act relate to the acguirement of lands by appropriation. The appellee railroad company exists by virtue of this legislation. Availing itself of the power conferred upon it by the act which makes its existence possible, it now proposes to evade the limitations placed upon the exercise of such powers by the same statute. It calmly assumes the dignified position of a natural person possessing inherent rights independent of legislation, ignoring what it in fact is, how it was made, and who made it. Nothing can be better settled than that a “corporation being a mere creature of the law possesses those powers only which are given to it by its charter, either expressly or impliedly as necessary in strict furtherance of the object of its creation. Huntington v. National Savings Bank, 96 U. S. 388, 24 L. Ed. 777;Beaty v. Knowler, 29 U. S. 152, 7 L. Ed. 813;Runyan v. Coster, 39 U. S. 122, 10 L. Ed. 382. The charter of a corporation is the measure of its powers, the enumeration of which implies the exclusion of all others. Green Bay, etc., v. Union Steamboat Co., 107 U. S. 98, 27 L. Ed. 413, 2 Sup. Ct. 221;Northwestern, etc., Fertilizer Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036;St. Clair, etc., v. Illinois, etc., 96 U. S. 63, 24 L. Ed. 651. The terms of the statute referred to do not permit a railroad corporation to construct its road across “any stream of water, water course, or canal without restoring the same in a sufficient manner not to unnecessarily impair its usefulness.” The power to cross thus conferred, when taken, is taken subject to the limitation, and not otherwise.

The second proposition argued is equally ineffective. If the provision of the fifth subdivision of section 5153, supra, were intended to apply only to navigable streams, it is to be presumed that the Legislature would have so stated. The words used are of the most comprehensive character, and do not admit of any other meaning being placed upon them than the clear and ordinary one which they in themselves convey. State v. Curtis Shelton (No. 6,135) 77 N. E. 1052. The distinction between public and private nuisances is entirely foreign to the decision. The restriction upon the appellee's power to cross any stream of water or water course, contained in the fifth subdivision of the foregoing statute, is no different in principle from the restriction contained in the first subdivision, upon its power to make preliminary surveys, etc. The responsibility therein declared is by the act made a necessary incident to the exercise of the power granted. Whether the Legislature would or could not have empowered a corporation to act in either regard without limitation, is not important since it did not, in either case, attempt to so do. The corporation constructing the railroad in question, without regard to the statutory liability of restriction, could not, by a conveyance to appellee convey a greater right than it possessed, nor could it, by such transaction, relieve appellee from the performance of a statutory duty.

It is not, therefore, necessary to enter into a discussion of the distinctions between private and public nuisances, since an act in defiance of the statute is essentially unlawful, and not within the principle requiring notice to the purchasers of land upon which a private nuisance exists. Upon the authority of Shoner v. Pennsylvania Company, 130 Ind. 171, 28 N. E. 616, 29 N. E. 775, the mandate is hereby modified, and the circuit court is directed to grant appellee a new trial.

COMSTOCK, BLACK, MYERS, and ROBINSON, JJ., concur.

WILEY, J. (dissenting).

I could not concur with my associates in the decision of this cause, and the prevailing opinion discloses my dissent. It was not my intention at the time to write a dissenting opinion, but upon reflection, and further consideration, have concluded to state, as briefly as I can, my reasons for dissenting. To do this satisfactorily to myself, I desire to state the substance of the complaint, and all the important facts specially found.

Opposing counsel do not agree as to the theory upon which the complaint proceeds, and while I do not think it makes any material difference, as affecting the decision, I quote from the complaint as follows: “That when said railroad now owned, maintained, and operated by the defendant was constructed on and across the lands now owned by the plaintiff and above described, it was built and placed upon a high embankment; that said embankment was so made across said branch or creek. That in order to permit the free flow of water in said branch or creek, through and across said embankment, said defendant's predecessor, in the ownership of said road, built and maintained an opening in said embankment with a trestle overhead upon which were placed the railroad tracks of the defendant's predecessor company. That said opening as it was originally built, constructed, and maintained was sufficiently large to permit the free flow at all times of all water in said creek or branch. That within the last five years, the exact date of which the plaintiff is unable to give, the defendant or its immediate predecessor in the ownership of said road, placed in said opening an iron pipe about 3 1/2 feet in diameter and filled said opening around said pipe with dirt and stones, thereby stopping and closing up said opening except so much thereof as is embraced within the circumference of said pipe; that the acts of said defendant in removing said trestle, and replacing same with said iron pipe were wrongful and negligent in this, that the water running through said water course was diverted and changed from its natural course, and said pipe was insufficient to carry off the water of said water course, ‘but that the course of the same was changed and part of the water thrown back upon the lands of the plaintiff, flooding such lands, and part thrown against plaintiff's land on the opposite side from his house, washing excavations therein. Plaintiff further avers that said defendant has been the owner of said railroad for more than five years, and ever since it has so owned said railroad, it has so maintained said dam and said pipe in said embankment, and has so continued and maintained the obstruction of said water course and has so continued to cause the water in said water course to be diverted and changed as aforesaid.”

It will be observed that it is first charged that within the last five years the “defendant, or its immediate predecessor in the ownership of said road,” filled up the trestle work and placed the pipe in the embankment for the flow of the water. It is then averred that appellant has been the owner of the road for more than five years, etc. The first averment as to which company put in the pipe is negative and uncertain, for it is charged that either the appellee or its predecessor did it, and that it was done within the “last five years.” The subsequent averment that appellee had owned the road for more than five years, carries with it the necessary conclusion that it put in the pipe. This conclusion is made irresistible by the averment that it was...