Lake Shore & M.S.R. Co. v. Cincinnati, W.&M. Ry. Co.

• Citation: 116 Ind. 578,19 N.E. 440
• Parties: Lake Shore & M. S. R. Co. v. Cincinnati, W. & M. Ry. Co.
• Decision Date: 19 December 1888
• Court: Supreme Court of Indiana

116 Ind. 578

19 N.E. 440

Lake Shore & M. S. R. Co.

v.Cincinnati, W. & M. Ry. Co.¹

Supreme Court of Indiana.

December 19, 1888.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

Proceedings by the Cincinnati, Wabash & Michigan Railway Company to acquire a right of way across and along the road of the Lake Shore & Michigan Southern Railroad Company, which company appeals from an order establishing such right.

Rev. St. Ind. 1881, § 3907, prescribes the proceedings necessary to appropriate lands, and provides that, if the corporation shall not agree with the owner, the court shall, after the filing and delivery to the owner of a copy of the instrument of appropriation, appoint three disinterested freeholders to appraise the damages; that their award may be reviewed by the court on written exceptions filed in the clerk's office within 10 days after the filing of such award, and the court shall take such order therein as right and justice may require, by ordering a new appraisement, on good cause shown: “provided that, notwithstanding such appeal, such company may take possession of the property therein described, as aforesaid, and the subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed.”Jos. A. S. Mitchell and O. G. Getzen-Danner, for appellant. Cowgill, Shively & Cowgill, for appellee.

Elliott, J.

The first question, presented in various methods, which we are required to decide, is this: What must be done by a railroad company engaged in constructing a new road to entitle it, as of right, to build its track across the road of a company previously built? There is no doubt as to the right of one railroad company, upon the payment of compensation, to construct its road across that of another road already in existence; but the terms and conditions upon which it can be done are such as the law prescribes. Lewis, Em. Dom. § 268.

A condition precedent to the right to cross is a compliance with the statute. The road seeking the right to cross another must affirmatively show that it has performed the acts which the statute requires. In a recent work, the law upon this subject is thus stated: “The petition should comply with the statute in all respects, and should contain all the facts necessary to give jurisdiction.” Lewis, Em. Dom. § 348. Further on in the same section the author says: “The allegations of the petition should be certain and positive. But where the allegations were followed by the phrase ‘as we believe,’ they were held to be sufficiently positive. If the statute requires the petition to contain a particular statement, its omission will be fatal.” The general rule is that material matters must always be directly alleged, and not stated by way of recital; and there is no reason why the rule should not apply to such cases as this. School Tp. v. Farlow, 75 Ind. 118;Shafer v. Mining Co., 4 Cal. 294;Hall v. Williams, 13 Minn. 260, (Gil. 242.) It is therefore necessary in such cases as this to ascertain- First, what facts must be stated; and, second, whether they are positively stated, or merely stated by way of recital.

The contention of counsel upon the particular question stated narrows the inquiry; for, as we understand the argument, the only point in which the petition or instrument of apportionment is asserted to be defective is in the failure to aver that the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or manner of such crossing. The statute which governs contains this provision: “And if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or manner of such crossings and connections, the same shall be ascertained and determined by commissioners.” Rev. St. 1881, § 3903, subd. 6.

It seems clear to us that this provision is not to be restricted to the single element of compensation, but that it must be construed as embracing also questions concerning the location and method of constructing the crossing. The language is not ambiguous, and it certainly embraces three very different and very material things,-compensation, the point of crossing, and manner of crossing. We cannot see how it is possible, looking solely to the words of the statute, to hold that all it refers to is the matter of compensation, since to reach such a conclusion many strong and clear words must be rejected. The language is plain; but plain as it is, we think it not more plain than the object the legislature intended to accomplish. It is very evident that the legislature did not mean to invest the younger company with power to cross at any point, and in any mode it might elect, but that, on the contrary, it meant to prevent the arbitrary exercise of the right to cross the older line. The purpose was to give both corporations an opportunity to agree, if they could, as to the compensation, the point of crossing, and the mode in which the crossing should be constructed. It was the intention of the legislature to prevent the arbitrary exercise of power by either the senior or the junior corporation, and to compel them to negotiate concerning the crossing, or, if the senior refused, to enable the junior to bring the matter before the court for consideration and judgment upon the three elements involved,-the compensation, the point of crossing, and the mode of conducting the one line across the other. This must be the interpretation of the statute, otherwise we must reject many words as meaningless, and disregard the appropriately expressed intention of the legislature. This result must be averted, for a firmly settled rule of law declares that no word or clause in a statute shall be regarded as meaningless or superfluous, if it can be avoided. But there is much reason and justice in the statute as it is written, for although it is just that the older company should not be allowed to arbitrarily dictate terms to the younger, it is equally just that the younger should not be allowed to make a crossing regardless of the rights of the older company. Our conclusion is that the negotiations which the statute requires the two corporations to conduct are negotiations concerning the three things we have enumerated, and that if these three things cannot be settled by negotiation they must be brought before the appropriate tribunal for adjudication.

The instrument of appropriation does not aver in positive terms that there was any failure to agree even as to the element of compensation, for all that is alleged on the subject is thus pleaded: “Having located the line and route of its said proposed extension of road over the land and premises hereinafter described, and having attempted and failed, and being unable to agree with respondent in regard to the terms of, or in regard to the compensation therefor,” the plaintiff did take and appropriate said way. The allegations as to compensation seem to be made only by way of recital, and are therefore probably insufficient; but, however this may be, there is certainly no allegation at all as to the other elements,-the point of crossing and the mode of conducting the one line of railroad across the other. The petition does not, therefore, show any attempt to bring about an agreement upon the points required by the statute, for two, at least, of the essential points are not mentioned. For this reason we think the petition or instrument of appropriation is insufficient.

It is defective not simply in form, but in substance. It is defective in substance, because it fails to show an attempt to secure the agreement for which the statute provides. This defect is far-reaching; for if the questions as to the point of crossing and the mode of constructing the crossing are not brought before the court, the senior corporation is practically denied the right to have two very important questions litigated and adjudicated. These two questions may, it is easy to conceive, often be of much more importance than the question of compensation. If the questions as to the place of crossing and the manner of making it are not the subject of judicial investigation, then it must be true that these are matters to be settled by one alone of the two corporations, and this would be plainly unjust, since the rights of both are directly involved and the rights of both vitally affected. It is not equitable that either the senior or the junior corporation should be at unrestrained liberty to dictate terms to the other. Equity and justice require that both should be heard in the matter, and if no agreement can be effected, then that the courts, with both parties before them, in due course of law, should adjust the dispute with due regard to the rights of each.

It is proper for courts to have regard to consequences in giving effect to statutes. They cannot, to be sure, disregard the plain words of the statute; but it is nevertheless their duty, whenever it can be done without violence to the language employed, to so construe statutes as to give them a reasonable, just, and beneficial effect. This doctrine has been repeatedly stated by the highest of the national courts, and has been acted upon by our own court. U. S. v. Kirby, 7 Wall. 482;Charles River Bridge v. Warren Bridge, 11 Pet. 420;Rodman v. Reynolds, 114 Ind. 148, 16 N. E. Rep. 516; Humphries v. Davis, 100 Ind. 274.

The doctrine is, as every one knows, much older than any American court. Broom, Leg. Max. 184; Ram, Judgm. 113. We do not, of course, assert that the judiciary will determine matters of policy or expediency, for we broadly concede that those are purely legislative questions; but we do assert that the judiciary will, where it can be done without departing from the words of a statute, give the statute such a construction as will avert evil or unjust results. Here, however, the language of the statute suggests and develops the policy which is obviously the just one, and we need do no more than...