Morris v. City of Indianapolis

• Decision Date: 07 April 1911
• Docket Number: No. 21,503.,21,503.
• Parties: MORRIS et al. v. CITY OF INDIANAPOLIS et al.
• Court: Indiana Supreme Court

177 Ind. 369

94 N.E. 705

MORRIS et al.

v.CITY OF INDIANAPOLIS et al.

No. 21,503.¹

Supreme Court of Indiana.

April 7, 1911.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Proceedings by the City of Indianapolis and others to abolish a railroad grade crossing. From a judgment awarding damages to Edward Morris and others, they appeal. Affirmed.Addison C. Harris, John E. Scott, and Lew Wallace, for appellants. F. E. Matson, Corp. Counsel, Elam, Fesler & Elam, F. Winter, Baker & Daniels, S. O. Pickens, C. D. Bowen, J. H. Pierce, Edward B. Raub, Leonard J. Hackney, and Frank L. Littleton, for appellees.

JORDAN, J.

This action arose under an act of the Legislature approved and in force on March 3, 1905. The act is known as the Indianapolis track elevation law. See Acts 1905, p. 144. It is entitled “An act to provide for the alteration of steam railroad grade crossings and to secure the depression or elevation of steam railroad tracks where the same cross streets or highways in cities of more than one hundred thousand population according to the last preceding United States census, and authorizing the opening, change, and vacation of streets and other highways and change of grades thereon in connection therewith; providing for the payment of the cost of such improvement by railroad companies, street railway companies, and the city and county in which such city is located, and incorporated towns lying within and surrounded by the corporate limits of such city.” In section 9 it is declared that the act shall be supplemental to an act of 1891 (Laws 1891, c. 97) concerning the incorporation and government of cities having more than 100,000 population, etc., and to all acts amendatory and supplemental to the aforesaid act.

By the first section it is provided that the board of public works of any city of more than 100,000 population, according to the last preceding United States census, may, upon a petition therefor, or upon its own initiative, adopt a resolution for the alteration of any grade crossing or crossings of any steam railroad track or tracks and any highway or highways in said city and the approaches thereto, or for the elevation or depression of the steam railroad track or tracks crossing any highway or highways in said city. It is provided that upon the adoption of said resolution the board shall cause notice thereof to be published in some daily newspaper, etc., showing the day upon which the board shall receive and hear remonstrances from persons interested in and affected by such improvement, and when it will determine the public necessity and convenience thereof. That on the day fixed for hearing it is provided that the board of public works shall consider remonstrances, if any, and shall take final action in the matter and shall confirm, modify, or rescind its original resolution. Provision is made for service of notice upon some resident agent or officer of any steam railroad or street railway whose tracks are affected by such proceeding, and upon the county commissioners of the county in which such city is located, and also upon the town clerk of any incorporated town lying within or surrounded by the corporate limits of such city.

By section 2 it is provided, among other things, that the board of public works, at the hearing provided for, shall determine the relative amount of such improvement equitably to be borne by each of the railroad companies, and that the expense to be borne by all the parties interested shall include any expense which may be incurred by reason of lowering the grade of any street, alley, or other highway, and the construction and reconstruction of the pavement of the entire width of the street, including sidewalks, and the alteration and construction of necessary drains required by such separation of grades; and said boards also to determine “the damages, if any, recoverable under existing law by any person, firm or corporation on account of such elevation or depression of tracks, and the cost of the elevation or depression of the railroad track or tracks, except the cost of the ties, ballast and rails of the railroad track or tracks or street railway tracks and the expense of relaying and reconstructing the same.” And the expense is to include a certain portion of the compensation of the city civil engineer.

It is further provided that the steam railroad or railroads whose tracks are affected shall pay 75 per cent. of such total cost. Where such crossing is occupied by the track or tracks of any street railway company, such street railway company shall pay 5 per cent. of such total cost. Where both street railway tracks and steam railroad tracks occupy said crossing, the city shall pay 14 per cent., and the county in which said city is located shall pay 6 per cent. of such total cost. Where such steam railroad track or tracks cross any street, avenue, or other public way at which there are no street railway tracks, the city shall pay 17 per cent. and the county in which said city is located 8 per cent. of such total cost. In ascertaining the total cost of separating the highway and steam railroad grades at a crossing where the highway is occupied by street railroad tracks, of which 5 per cent. may be apportioned as aforesaid to the street railway company, the cost of elevating or depressing the steam railroad tracks shall be taken into account only from the center of such crossing in each direction to a distance of 200 feet.

By section 5 of the act it is provided that the board of public works shall provide in such proceeding for the opening, laying out, change, or vacation of any street or other public way which may be required by such separation of grades, and the proceedings in relation thereto shall conform as nearly as possible to those provided by the law governing cities of such class. It is provided that said board shall likewise determine the damages, if any, which may be recoverable under existing law by any person, firm, or corporation on account of such elevation or depression of tracks. That upon the preparation of a list of an assessment of damages, said board shall cause a written notice to be served upon the owner of each piece of property, showing the amount of such assessment, etc. In said notice a date not earlier than 10 days after receipt of the notice or after the last publication, in case of publication, shall be fixed, at which time the board will receive and hear remonstrances from any person or corporation touching the assessment of damages. Upon the day of said hearing the board shall consider said assessment and remonstrances, if any, and modify or confirm the said assessments, which shall be final and binding, except that any person or corporation thus remonstrating may, within 20 days thereafter, take an appeal to the superior court in the county in which said city is located and have said assessment, in so far as it affects the person appealing, tried and determined in such court, from the decree of which an appeal may be taken to the Supreme or Appellate Court as in other cases.

After the taking effect of this act, the board of public works of the city of Indianapolis-that city being within the class containing a population of more than 100,000- initiated proceedings by resolution, providing for the elevation and depression of steam railroad tracks within said city. This resolution was, on May 18, 1905, adopted by the board. It named the several streets of the city, among which was Kentucky avenue, upon which the work of improvement in the manner as designated in said resolution was to be done. A date for hearing remonstrances from any and all persons, firms, corporations, etc., touching the assessment of damages was fixed by the board. So far as the record discloses, it appears that all of the necessary steps required by the statute were taken. The damages assessed by the board in favor of appellants were $10. Subsequently they, among others, appeared before the board and filed separately and severally written objections and remonstrances to the award of damages as made by the board in their favor, and also objected to the authority and jurisdiction of said board of public works, insisting that the board was without jurisdiction to make the assessment and alleging that the statute under which they were acting was invalid, both under the state and federal Constitutions. After hearing the evidence presented by appellants in support of their remonstrance and after having fully considered the assessments made, the board of public works finally, on August 10, 1908, overruled the remonstrances of appellants and others, and in all things confirmed and approved the assessment, to which decision and ruling of the board appellants excepted and gave notice of an appeal to the superior court of Marion county.

An appeal from the decision of the board was finally taken by appellants and others to the Marion superior court within the time fixed by section 5 of the track elevation statute. In addition to the appeal taken as authorized by the latter statute, by filing in the superior court a transcript of the proceedings had before the board of public works, appellants and others appear to have filed in that court an original complaint which professes to set up the facts in the case and the proceedings had before the board of public works. This latter complaint is said to be based upon section 102 of the general act concerning municipal corporations of 1905. See Acts 1905, p. 284. This section relates to taking appeals from the board of public works of a city in respect to assessments made in certain street improvement proceedings. It provides that an appeal may be taken in such cases by filing an original complaint in the court against the city, etc., and further provides that the judgment of such court shall be final, and no appeal shall lie therefrom. The filing of the original complaint, as appellants assert,...