Lake Erie and Western Railroad Company v. Walters

• Decision Date: 27 April 1894
• Docket Number: 1,180
• Citation: 37 N.E. 295,9 Ind.App. 684
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. WALTERS
• Court: Indiana Appellate Court

37 N.E. 295

9 Ind.App. 684

LAKE ERIE AND WESTERN RAILROAD COMPANY v. WALTERS

No. 1,180

Court of Appeals of Indiana

April 27, 1894

From the Howard Circuit Court.

Judgment reversed, with directions to sustain the demurrer to the complaint, and to grant the appellee leave to amend, if asked for.

M Bell, W. C. Purdum, W. E. Hackedorn and J. B. Cockrum, for appellant.

J. F Morrison and J. E. Holman, for appellee.

OPINION

REINHARD, J.

Action by appellee against appellant to enforce a statutory lien on a portion of appellant's right of way in the city of Kokomo for a street improvement assessment.

Upon issues joined there was a finding and judgment for appellee.

The overruling of appellant's demurrer to the complaint is assigned as error. The appellant's contention is that the description of the property assessed is wholly insufficient.

The averment respecting the property assessed is as follows: "That among other lots, parcels of ground and property assessed for the improvement of said street and abutting thereon was the following described unplatted tract of land owned by the defendant, situate in said city, county, and State, to wit: The right of way of defendant's railroad, and being a strip of ground 134 feet long, abutting on North Main street, between Broadway and North streets."

The record of the proceedings before the municipal authorities is filed with the complaint, and in the report of the civil engineer of the city the description of the property in controversy, alleged to have been assessed, is as follows:

Name of Owner.

No. of Lot.

Ft. Front.

Description of

Assessments.

Lands.

L. E. & W. R. R. Co.

....

134

Right of Way.

$ 164 82

Appellant earnestly insists that the description is insufficient in several particulars, viz: 1. It fails to show upon which side of Main street the railroad track or right of way is located. 2. It does not give the width of such right of way. 3. It entirely fails to disclose the place of beginning and termination of said 134 feet of the right of way upon which the lien is claimed.

The proceeding to enforce a lien for an assessment on account of street improvements is in rem, and ordinarily no personal judgment may be rendered against the owner in such a proceeding.

The only reason why a personal judgment may become a proper and available remedy in certain cases of this character, where the proceeding is against a railroad company to enforce a lien upon its railroad property and franchises, is that it would be contrary to public policy to decree the sale of the specific property to which the lien has attached, and as the lienor might otherwise be left without any remedy whatever equity will, in a proper case, award such lienor the right of collecting the amount due him by virtue of the lien, in the way of such personal judgment. See Lake Erie, etc., R. R. Co. v. Bowker, 9 Ind.App. 428, 36 N.E. 864, and authorities there cited and reviewed.

The fact, however, that this remedy may, in proper instances, be invoked will not change the character of the action from one in rem to one in personam.

The lien is still the only basis of the right of action, and in an action to enforce his rights under such lien the plaintiff is required to show, not only that he has a lien, but, also, that he would be entitled to a decree foreclosing the same, except for the fact that it is upon railroad property, the sale of which might interfere with the rights of the public.

In the present case, the failure to so describe the property in the complaint that it could be located or surveyed, renders the complaint bad. Conceding that it is not necessary to give the width of the right of way, it is nevertheless essential to show, we think, at what point on the right of way the 134 foot strip assessed begins, and where it...