Lake Shore And Michigan Southern Railway Co. v. Clough
| Decision Date | 21 April 1914 |
| Docket Number | 21,942 |
| Citation | 104 N.E. 975,182 Ind. 178 |
| Parties | Lake Shore and Michigan Southern Railway Company et al. v. Clough et al |
| Court | Indiana Supreme Court |
Rehearing Denied July 3, 1914, Reported at: 182 Ind. 178 at 187.
From Porter Circuit Court; Henry A. Steis, Special Judge.
Drainage proceedings on the petition of Susan Clough and others, and from a judgment establishing the drain the Lake Shore and Michigan Southern Railway Company and others appeal.
Affirmed.
John B Peterson, A. C. Harris and John A. Gavit, for appellants.
John H Gillett, Randall W. Burns and Frank B. Pattee, for appellees.
This is a proceeding brought by appellees, by petition filed in the circuit court of Porter County, in which it is sought to change the course of the Little Calumet River, and make a cut-off from the line of said river, as it now runs, so as to run in a northerly direction into Lake Michigan, across a high ridge of land, on which are situated appellants' rights of way, and make a drain in some places 200 feet wide at the top and more than thirty feet deep. To this petition a demurrer was filed by each of the appellants, on the grounds: (1) that the same does not state facts sufficient to constitute a sufficient petition in the drainage proceeding; (2) that all the lands to be affected are not described in forty-acre tracts; (3) that all the lands to be affected are not described in said petition. The demurrers were overruled and exceptions saved. Subsequently the petition was referred to the drainage commissioners of Porter County, and A. P. Milton of Lake County. At the March term following, the commissioners made and filed their report.
In the report of the commissioners, they establish, in addition to the drain prayed for in the petition, certain arms, or lateral drains, one the Salt Creek arm, and the other the Gary arm. After the report was filed, each of the appellees filed remonstrances. At the October term of 1909, the cause came on for trial, when it was discovered that by including the "Gary Arm" it would make the greater length of the drain, in Lake County; whereupon, the appellants and each of them moved the court to dismiss the petition on the grounds that the jurisdiction of the drain was in Lake County and the Porter Circuit Court had no jurisdiction. The court, pending the motion to dismiss, and on motion of petitioners, permitted the commissioners to make such amendments to their report as would exclude the "Gary Arm" and thus leave the greater portion of the ditch in Porter County, and directed the commissioners to make reports at the following December term of the court, to which ruling appellants each reserved an exception. At the December term the commissioners, pursuant to the order of the court, made a report in which the proposed drain was left at 22,300 feet in Lake County and 29,650 feet in Porter County.
In this second report damages were awarded to the appellants, as follows: To the Chicago, Indiana and Southern Railway Company $ 17,000; to the Lake Shore and Michigan Southern Railway Company $ 35,000. To this report the several appellants filed remonstrances, each setting forth substantially the same grounds, being those provided in § 4 of the drainage act of 1907, and in addition to the several causes of remonstrance, they set forth the proceeding and order of the court in referring the report back to the commissioners for correction. The ninth cause of remonstrance of the Chicago, Indiana and Southern Railway Company set forth that the construction of the ditch across its railroad 70 feet wide at the bottom and 30 feet deep would require this appellant to bridge the same at a cost of $ 131,000. The eighth cause of remonstrance of the Michigan Central Railroad Company set forth that the construction of the ditch under its bridge would require the same to be taken down and new abutments constructed, which would cost the sum of $ 63,700. The eighth cause of remonstrance of the Lake Shore and Michigan Southern Railway Company set out that the ditch proposed across its tracks would be 70 feet wide at the bottom, 34 feet deep and 210 feet wide at the top; that it would be required to construct a double-tracked bridge thereover at a cost of $ 150,000. The prayer of each remonstrator was that the proceedings be dismissed; and if not, then that the remonstrators be allowed damages, incident to and necessary in the matter of the bridges as aforesaid.
A trial was had, and upon timely request by appellants the court made special findings of facts and stated its conclusions of law thereon. The decree established the work and provided for its construction. At the same time the court struck from the commissioners' report the several allowances of damages consequent upon the construction of the work and rendered judgment against each appellant.
The court found the facts to be that the Calumet River would, by said proposed work, be changed from its present course so as to run northerly into Lake Michigan; that between the river and Lake Michigan there is a ridge of sandy land, averaging about thirty feet above the level of the lake and about ten feet above the river valley; that the said ridge is a little more than a mile wide; that the total area to be drained by the proposed ditch will be 350 square miles; that the petitioners are the owners of lands which they desire to drain; that the lands lie outside the corporate limits of any city or town; that the same cannot be drained without affecting the lands of others; that each tract will be benefited by the proposed drain. Then follows a description of the proposed drain by courses and distances, and of each arm, with the length of the drain in each county through which it runs; that many years ago the Lake Shore and Michigan Southern Railway Company had constructed along said ridge between the river and the lake a double-track railroad and are still operating said road; that the Chicago, Indiana and Southern Railway Company also owns and maintains a single-track line of road upon said ridge parallel with the Lake Shore road; that the cost of construction of said drain is $ 314,398.98; and that the benefits are $ 335,264.69; that the proposed work will improve public highways, benefit the public health, and will be of public utility; that it will be sufficient to properly drain the lands affected; that the Chicago, Indiana and Southern Railway Company owns its right of way 100 feet wide; that the proposed drain will cross the rights of way of the appellants at right angles; that it will be necessary for each of appellants to construct new bridges across the proposed drain; that a bridge at least 86 feet long will be required by the appellants; that there is not now and never has been any ditch, drain or watercourse where the proposed drain crosses the Lake Shore and Michigan Southern and Michigan Central roads; that appellants have no other real estate in said counties benefited or damaged by said proposed drain.
Upon the foregoing facts the court stated the law to be; that the appellants should not be charged with benefits for the right of way; and that said appellants are not entitled to recover any damages by reason of the construction of the proposed work; that the work is of public utility and should be constructed. To each of the conclusions of law, the appellants jointly and separately excepted.
The questions presented by the record in this case are: (1) error in overruling appellants' demurrers; (2) error in overruling appellants' motion to dismiss the petition; (3) that the Calumet River being an interstate stream, the Porter Circuit Court had no jurisdiction over its course; (4) appellants' railways not being within the drainage district are not subject to the police power of the State; (5) that the power to cut the ditch across appellants' right of way is referable to the eminent domain power and not the police power; (6) that the drainage act of 1907 , is unconstitutional and void in that it allows the assessment of damages to Lake County, for injuries to bridges; to other corporations and persons for injuries to their property, while denying the same to appellants, and is in conflict with the 14th amendment to the Federal Constitution.
It is contended by appellants that the petition is insufficient for the reason that it does not comply with the statutes as to the description of the lands alleged to be affected by the proposed drainage and does not describe the land in...
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