Lafayette Plankroad Co. v. New Albany & Salem R.R. Co.

• Decision Date: 29 November 1859
• Citation: 13 Ind. 81
• Parties: The Lafayette Plankroad Company v. The New Albany and Salem Railroad Company
• Court: Indiana Supreme Court

13 Ind. 81

The Lafayette Plankroad Company v. The New Albany and Salem Railroad Company

Supreme Court of Indiana

November 29, 1859

From the Clinton Circuit Court.

The judgment is affirmed with costs.

R Jones, S. A. Huff and R. Gregory, for appellants.

Extracts of the argument of counsel for the appellants:

What the exact rule may be that will govern the determination of this Court upon being asked to review the action of a lower Court in granting a new trial, it is somewhat difficult to determine.

In Jones v. Cooprider, 1 Blackf. 47, this Court reversed the cause because the Circuit Court had improperly granted a new trial, and ordered judgment te be entered on the first verdict. The new trial had been granted because the Court below held that illegal evidence had been admitted on the first trial, which evidence this Court held to have been legal and proper.

In Cummins v Walden, 4 Blackf. 307, the same ruling was made when the new trial had been granted on affidavits which did not show a sufficient reason therefor.

The rule is clearly stated by Sullivan, J., in Bisel v Hobbs, 6 Blackf. 479. He says: "So when a verdict has been set aside, and a new trial granted for reasons not recognized by the law, and upon the second trial judgment has been rendered in favor of the party obtaining the new trial the judgment will be reversed, and the party that obtained the first verdict, will be restored to his rights under that verdict."

In Nagle v. Hornberger, 6 Ind. 69, it is said "The Court will more readily control the discretion of the Court below in refusing a new trial, than in granting it."

And in Powell v. Grimes, 8 Ind. 252: "The Court would very reluctantly set aside the granting of a new trial--perhaps a case might occur in which it would do it--but when the Court below conducting the trial is not satisfied with its fairness, we would be slow to differ with it."

Leppar v. Enderton, 9 Ind. 353, and Cronk v. Cole, 10 id. 485, are to the same effect. Each of them were cases in which there was a sufficient cause stated for a new trial, and an attempt to show the cause stated to exist; and where the cause was one to be made out by evidence, the affidavits were such as could be received for that purpose.

The rule of this Court, as deduced from the cases adjudicated by it, would seem to be, that granting a new trial is not erroneous, unless it is clearly shown by the record, that such new trial was granted for "reasons not recognized by the law;" or if granted for causes to be made out by proof, that there was no legal proof tending to show the existence of such causes.

There can be no new trial granted, except for some one of the reasons specified in § 352, 2 R. S. p. 117.

The cause for which this new trial was granted, if it can be ranked under any of the statutory causes (which is denied), must be held to be within the second named in said section, "misconduct of the jury."

Admitting the speaking German in the jury room, or the fact of one sitting as a juror, who did not fully understand what was said by the Court, the counsel, &c., was misconduct within the statute; we insist there is no legal proof of such misconduct. The only attempt at proof is by testimony of the two jurors, Wehr and Smith, given either in their affidavits, or in their examination by the Court. The rule of law is clear, that "the affidavits of the jurors themselves, of their misconduct, are not admitted to impeach their verdict." Drummond v. Leslie, 5 Blackf. 454.--Dunn v. Hall, 8 id. 32. Within this rule, the evidence of misconduct was wholly inadmissible, and consequently should be striken out, thus leaving the case without any evidence tending to show the existence of the cause alleged for a new trial.

* * * *

Every paragraph of the answer is certainly bad, under the recent rulings of this Court; and the demurrers to them should have been sustained, because the gravamen is a consequential injury, and the damages therefor could not be recovered under the statutory proceeding. Tate v. The Ohio, &c., Railroad Co., 7 Ind. 479.--Hutton v. The Indiana Central Railway Co., Id. 522.--The Evansville, &c., Railroad Co. v. Dick, 9 id. 433.--The Indiana Central Railway Co., v. Boden, 10 id. 96.

It is alleged in the complaint that the defendants, by the peculiar location and manner of construction of their road, had done the plaintiffs unnecessary damage, &c. This is reiterated in the reply. The demurrer to the complaint, and that to the reply, present the question, whether, when property was taken possession of under the internal improvement act of 1836, and governed by that alone, an action at law could in any case be maintained. That act provides that private property may be taken possession of, &c., "avoiding, in all cases, unnecessary damage or injury to the proprietors."

So long as no unnecessary damage is done, the statutory right only is exercised, and the statutory remedy for taking property is the only one. But when "unnecessary damage is done," the statutory right is exceeded, its protection forfeited, and the ordinary remedy for the invasion of a private right may be resorted to by the party injured. So it has been ruled under similar enactments. Lawrence v. The Great Northern Railway Co., [15 Q. B. 643,] 6 Railw. and Canal Cases, 656.--The Queen v. Scott, 3 id. 187.--Conwell v. Emrie, 4 Ind. 209.

The rule above stated is no new one, but has long been of frequent application in large classes of cases. We need only mention the familiar ones of distress for rent, distress made damage feasant, estrays &c.; in all which cases, if the party making the distress, taking up the estray, &c., does any act the law has forbidden, that is, exceeds the right given him by law, he becomes a trespasser ab initio, and may be proceeded against as such.

So here, if the defendants exceeded the power vested in them, that is, have done unnecessary damage, an action at law is the appropriate remedy. Conwell v Emrie, 4 Ind. 209.

What is unnecessary damage within the meaning of the act of 1836? Is the damage inflicted a necessary one because it was done in constructing a railroad, if it is constructed in such a place and manner, as to cost the railroad company the smallest possible amount?

This cannot be the meaning of the expression, especially when you come to apply it to a case like the present, where one corporation is interfering with the rights vested in another. The history of the rulings of the Courts, upon the questions growing out of the exercise of the right of eminent domain, is a curious and instructive one. It certainly was a wonderful exertion of the legislative functions sometimes assumed by Courts, when they held that a state could transfer to a private corporation the right of eminent domain, to be exercised for the exclusive profit of the corporators, giving to the corporators this high prerogative, to go as a part of the investment, into a mere private speculation. But it was done upon the hypothesis assumed, that the prerogative was to be exercised only for the public good--a hypothesis as false in theory as it is in practice.

It would have seemed that this species of legislation was exhausted over a given subject-matter, when it had become the property of a corporation under the exercise of this high prerogative; that the right of eminent domain conferred on one corporation, and exercised by it, could not be again conferred on another, so as to embrace the same property, or any part of it. This was clearly the first leaning of the courts. The Hudson River, &c. Canal Co., v. The New York, &c., Railroad Co., 9 Paige 323.--The Canal Co v. The Railroad Co., 4 Gill and Johns. 1.--The Seneca Road Co. v. The Auburn Raitroad Co., 5 Hill 170.

But an imperious necessity intervened, and the Courts, under its pressure, must again legislate, to avoid what upon principle was the obvious and proper result of their previous action. So they held that the rights vested in one corporation might be interfered with by another corporation under a like grant of eminent domain, so far as necessary to carry into effect the public purposes for which the latter had been created. This is the doctrine of the Courts at the present time. They have universally placed this limit upon the right of one corporation to interfere with, or take the corporate franchise or property of another corporation. The rule is clearly stated in Springfield v The Conn. &c., Railroad Co., 4 Cush. 63, where the Court, in discussing the power of a railroad company to construct their road upon a highway, so as to obstruct the highway, says, p. 72:

"In the present case, it is manifest there are no words in the act of 1845, which give the defendants authority to locate and construct their railroad over Front street, where it was actually laid, or over any other highway in Cobotville; and if they had the power, it must be derived from necessary implication, though no such implication appears on the face of the act. If it exist, it must arise from the application of the act to the subject-matter, so that the railroad could not, by reasonable intendment, be laid on any other line. The grant of the right is, by reasonable construction, a grant of power to do all the acts necessary to its enjoyment. It is not an absolute or physical necessity, absolutely preventing its being laid elsewhere; but if to the minds of reasonable men, conversant with the subject, another line could have been adopted between the termini without taking the highway and reasonably sufficient to accommodate all the interests concerned, and to accomplish the objects for which the grant was made, then there was no such necessity as to warrant the presumption that the legislature intended to authorize the...