Oler v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 23 February 1916
• Docket Number: No. 22130.,22130.
• Court: Indiana Supreme Court
• Parties: OLER v. PITTSBURGH, C., C. & ST. L. RY. CO.

184 Ind. 431

111 N.E. 619

OLER

v.PITTSBURGH, C., C. & ST. L. RY. CO.

No. 22130.

Supreme Court of Indiana.

Feb. 23, 1916.

Appeal from Circuit Court, Wayne County; James S. Engle, Special Judge.

Suit by Stella Oler for an injunction against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.Thomas J. Study and Wm. A. Bond, both of Richmond, for appellant. John L. Rupe, of Richmond, for appellee.

COX, J.

Appellant sued to have the vacation of a part of Center street in the town of Dublin, Wayne county, declared void as to her and to enjoin appellee perpetually from lowering the grade of its railroad and from reconstructing and double-tracking it over that part of the street vacated. No question is raised as to the sufficiency of any pleading, and they need not be further stated, as, pursuant to appellant's request, the court found the facts specially and stated conclusions of law thereon, and the sole error relied on arises from appellant's exceptions to the conclusions of law.

The court found in material substance that Center street was the most western of the streets of the town running north and south through it, and intersected and crossed appellee's railroad at right angles. It had been a street of the town for more than 30 years. North of its railroad, and abutting on the east side of Center street, appellee owned a lot on which was located its station. Adjoining appellee's station lot on the north appellant owned certain lots of land, which also abutted on the east side of Center street, and as such abutting owner owned the fee to the center of Center street. North of appellant's property Center street was intersected by a street running east and west, which gave appellant an outlet by way of Center street to the north and to the east and west.

On May 24, 1910, and long prior thereto appellee owned and operated its single-track steam railroad which ran from the city of Richmond, Ind., through the town of Dublin on to St. Louis, Mo. On this date appellee was engaged in a general enterprise of rebuilding and double-tracking its railroad, and for the purpose of enabling it to lower the grade of its tracks through the town, to abolish grade crossings, and to make improvements across Center street, appellee filed its petition as an abutting owner in the Wayne circuit court, asking for the vacation, among others, of Center street from a point even with the north line of its station lot to a point south of the south line of its right of way. Upon the filing of its petition 10 days' notice to the town of Dublin and the citizens thereof was given by publication, fixing June 6, 1910, for hearing the petition. This notice set forth the substance of the matters involved in the petition, and described the part of the street sought to be vacated and the purpose for which its vacation was desired; but it did not particularly set forth or designate appellant's property, or any property whatever, which might be affected by the proposed vacation. The only persons named in the petition as particularly interested in and would be affected by the vacation asked, other than appellee, were two other abutters, except that a blueprint plat or map, which was made a part of the petition, showed appellee's line of railroad through the town, the streets, alleys, lots, and tracts of ground (including appellant's) contiguous thereto and with reference to the parts of streets and alleys sought to be vacated; but appellant was not directly named as a person who would be particularly interested in or affected by the vacation, nor was her property otherwise so specifically designated. Appellant nevertheless appeared and filed a remonstrance against the proposed vacation, and asserted therein that her land immediately adjoined the part of the street asked to be vacated, and that it would suffer injury and damage by the vacation, which she asked to be determined and ordered paid by appellee before the vacation was ordered. This remonstrance was filed 10 days after the time fixed in the notice for the hearing, and was subsequently struck out, and appellant thereafter filed a cross-complaint, in which she claimed to be an abutting owner, immediately adjoining that part of the street sought to be vacated, and that the vacation of the street and the lowering of the grade of appellee's railroad 14 feet as contemplated at the point of crossing would destroy the ingress and egress to and from her property to the south, and so result in great and permanent damage to it, wherefore she asked that the vacation of the street and the destruction of it at the crossing be enjoined. This cross-complaint was likewise stricken from the files of the proceeding. Thereafter such proceedings were had that the vacation was ordered by the court as petitioned for, but over appellant's objection and without damages to her being assessed or paid. In the vacation proceedings the court did not pass upon or determine whether appellant's real estate would be injured or damaged by the vacation. After the judgment ordering the vacation and prior to the bringing of this action appellee proceeded to make a cut through the town about 14 feet deep and 100 feet wide, for the purpose of lowering the grade of its railroad and making it a double-track instead of a single-track road, which cut extended across Center street at the point covered by the judgment vacating it. And this cut appellee claimed the right to make without restoring the crossing of Center street over its right of way by virtue of the vacation of that part of the street. The court finally found that appellant and her real estate would “be damaged and injured by the vacation of said portion of said street.” On the facts as found the court concluded as a matter of law that the law was with the appellee, and that appellant was not entitled to have appellee “enjoined from vacating or destroying said Center street as set forth in her complaint.”

[1][2] Counsel for appellant press with much earnestness a claim that the statute under which the vacation proceeding was conducted is violative of the provision of the Fourteenth Amendment to the federal Constitution which forbids any state from making or enforcing any law which shall deprive any person of property without due process of law, and that it also contravenes section 21 of the Bill of Rights of the Constitution...