Pittsburgh, Cincinnati, Chicago And St. Louis Railway Company v. Atkinson

• Decision Date: 31 January 1912
• Docket Number: 7,466
• Citation: 97 N.E. 353,51 Ind.App. 315
• Parties: THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. ATKINSON
• Court: Indiana Appellate Court

97 N.E. 353

51 Ind.App. 315

THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. ATKINSON

No. 7,466

Court of Appeals of Indiana

January 31, 1912

Rehearing denied June 18, 1912. Transfer denied November 1 1912.

From Jay Circuit Court; John F. LaFollette, Judge.

Action by Martha Atkinson against The Pittsburgh, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

G. E. Ross, for appellant.

Charles H. Shockney, and James J. Moran, for appellee.

OPINION

IBACH, P. J.

In the first paragraph of appellee's complaint it is averred that certain streets in the town of Redkey had been graded to conform to the original grade of appellant's railroad tracks, and that appellee had graded and filled her lot abutting on Union street, one of the streets which had been so graded; that afterwards appellant changed its grade, which required a change of the grade of said Union street along and in front of her property, and where such street crossed the right of way of appellant; that the work in building such grade was so carelessly and negligently done as to collect on its tracks and right of way surface-water, together with water which was taken from a tank and used to wash its dirty and filthy stock cars, and turn the same on her lot, and thereby her premises were made uninhabitable for dwelling purposes.

In the second and last paragraph it is alleged that for more than twenty years appellant had maintained its road on a certain grade, and that Union street in the town of Redkey, on which appellee's lot abutted, had been improved to conform to such grade, and that appellee had filled and graded her lot, at a large expense, to correspond with the street grade, so that she would have free and uninterrupted access thereto, and that appellant afterward changed its grade by raising the same, and thereby the street along and in front of her property was required to be raised eighteen inches, and as a consequence thereof free access to her property was materially and permanently interfered with.

A separate demurrer to each paragraph was overruled and exception taken. Issues were formed by a general denial. The cause was tried by the court without the intervention of a jury. There was a special finding of facts, conclusions of law, and judgment thereon in favor of appellee, notwithstanding the motion of appellant for judgment in its favor. The errors assigned call in question the conclusions of law, together with the other rulings of the court above mentioned.

The questions presented by appellant with reference to the overruling of the separate demurrers are also raised by the exceptions to the conclusions of law, and as the facts found were conceded in the argument to be in accord with the evidence, and substantially follow the allegations of the complaint, it will not be necessary for us to discuss the rulings of the court on the demurrers, for the decision of one necessarily determines the other. Goodwine v. Cadwallader (1902), 158 Ind. 202, 61 N.E. 939.

Appellee concedes the rule of law, that a railroad company has the right to improve, repair or change its roadbed, and raise or lower the grade thereof, when in its judgment any such change would improve the road or increase its efficiency, without being liable to respond in damages to an abutting property owner, upon the theory that such improvements do not constitute additional burdens not included in the original appropriation. It is insisted, however, that if in making any such change of grade the work is done in a careless and negligent manner, or the railroad company goes outside of its right of way for the purpose of building approaches on the highway necessarily raised on account of its having raised its tracks and roadbed at such highway crossing, and damages result to the abutting property owner, the railroad company must then answer for the damages sustained. Without deciding as to the correctness of the concession of appellee, as applied to this case, it is clear that her insistence is supported by principle and by direct authority.

This court has held, in considering a case very similar to the present, that "the grant of a right of way does not carry the right to go beyond its limits, and the owner is not compensated by an assessment of damages for a right of way for wrongful acts after the acceptance of a deed or the making of an appropriation." Baltimore, etc., R. Co. v. Quillen (1904), 34 Ind.App. 330, 334, 72 N.E. 661, 107 Am. St. 183.

Appellant contends, however, that if any damage resulted to appellee by reason of the work complained of, she cannot recover, because the improvement was all done by, under and by virtue of an ordinance duly adopted by the town of Redkey; that by reason of such ordinance the grade of Union street was established, and the grade of said roadbed was raised to correspond with said established grade, and the approaches on Union street were built agreeably to the provisions of the ordinance, so as to restore such highway to its original usefulness. Appellant's position would be correct, and such ordinance would excuse at least a part of the damage sustained by appellee, if it can be said to be an ordinance establishing a grade on Union street "solely for public accommodation". Chicago, etc., R. Co. v. Johnson (1910), 45 Ind.App. 162, 90 N.E. 507.

The law is well settled that municipalities may establish grades and improve their streets in accordance therewith, and no liability will follow, simply because of the fact that the grading results in an injury to some private proprietor. It is also well settled that since the town of Redkey is authorized by law to improve its streets according to established grades, it might contract with a third person to make such improvements, and such person would not be required to respond in damages, so long as the work was carefully and skillfully done, and in the manner authorized and directed by such municipality. This is on the theory that the improvement is one of public use and benefit and the party whose property was made less easy of access by reason of such general improvement...