Grand Trunk & W. Ry. Co. v. City of South Bend
| Decision Date | 23 November 1909 |
| Docket Number | No. 20,981.,20,981. |
| Citation | 89 N.E. 885,174 Ind. 203 |
| Court | Indiana Supreme Court |
| Parties | GRAND TRUNK & W. RY. CO. v. CITY OF SOUTH BEND et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Porte County; John C. Richter, Judge.
Suit by the Grand Trunk & Western Railway Company against the City of South Bend. From a judgment for defendant on demurrer, plaintiff appeals. Affirmed.Anderson, Parker & Crabill and Kretzinger, Gallagher, Rooney & Rodgers, for appellant. Frank Dunahoo and Hubbard & Hubbard, for appellee.
This action was brought by appellant against the city of South Bend and certain of its officers to enjoin them from interfering with the appellant in its attempt to lay a second track through a portion of the city of South Bend on and along the center of Division street. Suit was originally commenced in the St. Joseph circuit court, from which a change of venue was taken to the La Porte circuit court. Amended complaint in two paragraphs. Appellee's separate and several demurrers for want of sufficient facts were sustained to each of the amended paragraphs of the complaint. The appellant refused to plead over, and judgment was rendered against appellant for costs. The errors assigned are the sustaining of each and all the demurrers to the amended complaint.
The complaint, or so much of its substance as is necessary for the basis of this opinion, is as follows: After the preliminary allegations, it appears from the first paragraph of the complaint that on or about the 24th day of October, 1866, the city of South Bend, by William G. George, mayor, and 14 individuals, executed articles of association to incorporate for the purpose of building, owning, and operating a railroad to be known as the “Peninsula Railroad Company of Indiana” from the north line of the state of Indiana, through South Bend, and thence in the direction of Chicago; said proposed road to be about 85 miles long. The articles of association were filed on the 10th day of December, 1866. That on the 2d day of March, 1868, the common council of the city of South Bend passed and enacted an ordinance numbered 62, whereby consent, permission, and authority was given, granted, and duly vested in the Peninsula Railroad Company of Indiana to construct and maintain a track for its said railroad within the city of South Bend upon the following terms, to wit: “Commencing at the eastern limits of said city at the east end of a 20-foot street laid out and dedicated on the south side of Samuel Gottrell's addition to the town of Lowell, or at a point on said 20-foot street that the company might see proper to adopt, thence across the St. Joseph river to the eastern end of the extension of Division street and its extensions in said city so far as the said company may desire, crossing all intermediate streets and alleys, and to run locomotive cars and trains over said road so far as might be necessary for the conducting of the business of said company.” That no more than one track for such road should be laid across any street of said city without the previous assent of the common council of said city, except only the privilege “which is hereby granted to lay down a double track across the bridge over the St. Joseph river, and from the western terminus of said bridge to Gen. Taylor street in said city, subject to the conditions hereinbefore contained,” etc. That in the year 1881 the said Chicago, etc., Railway Company, which company was then operating and maintaining said railroad, desired to acquire and perfect its title to the land used by it, and which it would be necessary to use in operating its road, as a right of way through Division street in said city, and, to settle with and compensate the owners of said land for their interest in the central portion of the street so taken, did in accordance with the statutes of the state of Indiana appropriate for its use, as and for a railroad track, a strip of land 18 feet wide on the street in question. The plaintiff avers: That it is now the owner in fee of the said right of way 18 feet wide, extending from the west end of the bridge crossing the St. Joseph river to Gen. Taylor street in the city of South Bend, a distance of about 200 rods. That since the year 1871 this company and its predecessors aforesaid have openly, continuously, and notoriously occupied the center of Division street with its said railroad from the west end of said bridge to Gen. Taylor street, and have always claimed the right to lay down said double track across the St. Joseph river and along said Division street from the west end of said bridge to the center of Gen. Taylor street aforesaid, whenever the requirements of their business should make it necessary, and have expended large sums of money in the maintenance of said track, and have complied with the conditions required of them by said ordinance, with the full knowledge and acquiescence of the city of South Bend and the authorities thereof. That on the 1st day of January, A. D. 1881, said Chicago & Grand Trunk Railway Company did lay down a double track on Division street between the St. Joseph river and Michigan street, which lies five squares east of, and parallel with, Gen. Taylor street, and it and its assigns have ever since used, and plaintiff still uses, the same. It is further averred: That on the 14th day of October, 1901, the city of South Bend, through its common council, assumed by ordinance to repeal so much of the ordinance granting the right to maintain a railroad in Division street as gives the right to a second track in that street from Michigan street to Gen. Taylor street, and the city now sets up, and claims, that the action of the common council was effective in that behalf, and that thereby the plaintiff's right to said second track was lawfully revoked, and has forcibly prevented putting down such second track. It is also alleged that the street is 82 1/2 feet wide, and that the obstruction of the general public in its use of the street by passing trains will be much less when the two tracks are used than it is now, when all trains both ways have to pass over a single track, and that there is ample space thereon for general travel, and for said double track. The second paragraph of complaint is the same as the first so far as any question involved in this appeal is concerned. The only material difference is as to the manner of acquisition by appellant of the rights, franchises, and property of the original company, and no question is raised by appellees as to that matter. There is the additional allegation in the second paragraph that appellant, supposing its title in all respects perfect, had kept up and maintained its line through Division street, and had expended in the whole line of railroad $1,000,000.
The questions which need be here decided are: First, whether the appellant as successor to the rights and privileges of the original Peninsula Railroad Company of Indiana, acquired, by virtue of the grant contained in ordinance No. 62 of the common council of the city of South Bend, the right to lay an additional track on Division street between Michigan and Gen. Taylor streets; and, second, whether, if it obtained that right under the grant by that ordinance, the city could by another ordinance revoke so much of the grant as permitted the laying of an additional track on that portion of Division street. If the ordinance contained such a grant, and the city had no power to revoke it, this judgment must be reversed. If it has not such right, or if, there being a right to lay an additional track, the city had the power to revoke this right, the judgment must be affirmed.
The Legislature, primarily, has control over streets, as well as of other public highways; they are arteries of the state. State ex rel. v. Board, 170 Ind. 595, 609, 85 N. E. 513;Cones v. Board, 137 Ind. 404, 37 N. E. 272. And this governmental power of control cannot be surrendered or contracted away. It is a part of the police power, which cannot be alienated or placed beyond municipal control. Northern Pac. Co. v. Minnesota, 208 U. S. 583, 28 Sup. Ct. 341, 52 L. Ed. 630, and cases cited; State v. Barrett, 87 N. E. 7;Indiana Co. v. Calvert, 168 Ind. 321, 80 N. E. 961, 10 L. R. A. (N. S.) 780;Vandalia Co. v. State, 166 Ind. 219, 76 N. E. 980, 117 Am. St. Rep. 370;Cleveland, etc., Co. v. Harrington, 131 Ind. 426, 30 N. E. 37;Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079;Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989;Northwestern Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036;Leavenworth v. Phillips, 67 Kan. 549, 73 Pac. 97, 100 Am. St. Rep. 475; Elliott on Railroads (2d Ed.) § 1082; Elliott on Roads & Streets, §§ 741, 742, 758. But the Legislature may delegate the power of control over its streets to a city or town. State ex rel. v. Board, supra: New Castle v. Lake Erie, etc., Co., 155 Ind. 18, 23, 57 N. E. 516;Burkam v. Ohio, etc., Co., 122 Ind. 344, 23 N. E. 799. The act in force when the ordinance in question was enacted reads as follows: “The common council shall have exclusive power over the streets, highways, alleys and bridges within such city,” etc. Rev. St. 1881, § 3161. This section was first amended in 1891 (Acts 1891, p. 122, c. 93), and much specification added. Under this power of exclusive control, a delegated power, or trust, if the Legislature cannot surrender, alienate, or contract away its legislative functions, its governmental and police powers, it, of course, cannot delegate the right of surrender or alienation.
It is not an open question in this state that cities are delegated the power of permitting the laying of railroads in streets; but it is the grant of the state. Town of Newcastle v. Lake Erie Co., 155 Ind. 18, 57 N. E. 516;Burkam v. Railway Co., 122 Ind. 344, 23 N. E. 799;Kistner v. City, 100 Ind. 210;Tate v. Railroad Co., 7 Ind. 479;Haslett v. New Albany Co., 7 Ind. App. 603, 34 N. E. 845;City Co. v. Citizens' Co., 166 U. S. 557, 17...
To continue reading
Request your trial