Pittsburg, C., C. & St. L. Ry. Co. v. Hays

• Citation: 44 N.E. 375,17 Ind.App. 261
• Court: Court of Appeals of Indiana
• Decision Date: 11 June 1896
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. HAYS et al.

17 Ind.App. 261

44 N.E. 375

PITTSBURG, C., C. & ST. L. RY. CO.

v.HAYS et al.¹

Appellate Court of Indiana.

June 11, 1896.

Appeal from circuit court, Jay county; D. D. Keller, Judge.

Action by John Hays and others against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

N. O. Ross, for appellant. John M. Smith, for appellees.

LOTZ, J.

This action was brought by the appellees against the appellant to declare a lien and enforce the collection of an assessment for the improvement of a street within the incorporated town of Dunkirk. The improvement was made in pursuance of a resolution and an ordinance adopted by the board of trustees. The north side of the street improved for its entire length abuts upon the south side on the appellant's right of way. The improvement was made by grading and graveling the center or roadway its entire length, and by constructing a sidewalk along the entire south side of the street, with no sidewalk on the north side next to the right of way. The contract for such improvement was let to the appellees. The work was done, and the costs thereof were estimated and assessed by the running foot, including both street and sidewalk, and the appellant, as the owner of the right of way, was charged with one-half thereof. In the circuit court there was a trial and finding in favor of the appellees in the sum of $1,460, and the same decreed to be a lien upon the right of way; and the appellant was ordered and directed to pay the same within 90 days.

The appellant insists that the judgment rendered is erroneous, because the statute under which the proceedings were had does not contemplate that the right of way of a railroad should be assessed to make such improvements; that such assessments can only be upheld upon the theory that the land receives a benefit equal to the assessment; that, in its very nature, the right of way abutting cannot receive a specific benefit; and that, without such benefit, there is no constitutional warrant to seek payment elsewhere, for it would be taking property without compensation. There are authorities which support appellant's contention. City of Philadelphia v. Pittsburgh, etc., R. Co., 33 Pa. St. 41; Junction R. Co. v. City of Philadelphia, 88 Pa. St. 427; Detroit, etc., Ry. Co. v. City of Grand Rapids (Mich.) 63 N. W. 1007;Chicago, etc., Ry. Co. v. City of Milwaukee (Wis.) 62 N. W. 417;Allegheny City v. Western Pa. R. Co., 138 Pa. St. 375, 21 Atl. 763;Sweaney v. Railway Co., 54 Mo. App. 265. On the other hand, there are cases which seemingly supporta contrary doctrine. Chicago, etc., R. Co. v. City of Chicago, 90 Ill. 573;City of Chicago v. Baer, 41 Ill. 306;Chicago, etc., R. Co. v. City of Moline (Ill.) 41 N. E. 877;Railroad Co. v. Connelly, 10 Ohio St. 159; Railway Co. v. Spearman, 12 Iowa, 112;In re North Beach, etc., R. Co., 32 Cal. 499. The court knows judicially that the right of way of railway companies is frequently used for other purposes than that of simply operating their trains thereon. The right of way is frequently used for depot purposes, for track yards, and for purposes of loading and unloading freight, and for storing cars and materials. When so used, a public highway affords the company ready means of ingress and egress thereto for the transaction of its business, and is a direct benefit to that portion abutting thereon. This court cannot say, as a matter of law, that the highway improvement was not a benefit to the abutting right of way. The legislature, in authorizing the construction of such improvements, has assumed that they will benefit the abutting property, and has directed that the costs shall be estimated according to the whole length of the street or alley, or the part thereof to be improved, per running foot. Rev. St. 1894, § 4290. Whatever the rule may be elsewhere, it is settled in this state that the right of way may be assessed for the improvement of highways. Railroad Co. v. Hanna, 68 Ind. 562. This court, in the case of Railway Co. v. Bowker, 9 Ind. App. 428, 36 N. E. 864, impliedly held that the right of way and depot lot of a railway company could be assessed for the construction of a sewer. A public highway is certainly of as much benefit to the right of way as a sewer.

It is further insisted that no personal judgment can be rendered in this proceeding. This contention has been decided adversely to the appellant by this court and by the supreme court; and it needs no further consideration now. See Louisville, N. A. & C. Ry. Co. v. State, 8 Ind. App. 377, 35 N. E. 916;Railway Co. v. Bowker, supra; Railway Co. v. Boney, 117 Ind. 501, 20 N. E. 432;Louisville, etc., Co. v. State, 122 Ind. 443, 24 N. E. 350.

Several other objections are made to the proceedings of the town board. It is insisted that the board never made any order, by resolution or otherwise, declaring a necessity for such improvement, as provided by section 4289, Rev. St. 1984. The existence of such order, it is claimed, is essential to the jurisdiction of...