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

• Decision Date: 03 April 1902
• Docket Number: 19,689
• Citation: 63 N.E. 454,158 Ind. 525
• Parties: Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Fish
• Court: Indiana Supreme Court

63 N.E. 454

158 Ind. 525

Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Fish

No. 19,689

Supreme Court of Indiana

April 3, 1902

Rehearing Denied May 21, 1902.

From Pulaski Circuit Court; G. W. Beeman, Judge.

Action by John W. Fish against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to foreclose lien for street improvements. From a judgment for plaintiff, defendant appeals.

Reversed.

N. O Ross and G. E. Ross, for appellant.

W. W Borders, for appellee.

OPINION

Hadley, J.

Foreclosure of a statutory lien against the right of way of appellant on account of the improvement of a street in the town of Winamac. The complaint is in the usual form. Answer in general denial, and that the defendant is a railroad corporation organized under the laws of Indiana and other states, and engaged in the business of a common carrier of passengers and freights in interstate commerce, and also in carrying United States mails under contract with the national government, pursuant to an act of congress, and that the property assessed is its depot grounds and right of way which are necessary to the operation of its railroad, and the assessment was made by the front foot rule, and without reference to benefits, and is unconstitutional. Appellant's demurrer to the complaint, and its motions to modify the judgment, and for a new trial were overruled. Error is assigned on each of these rulings. The improvement was made under the provisions of the act of 1889 known as the "Barrett law." § 4288 et seq. Burns 1901. The constitutionality of this act has recently been so often affirmed that it no longer remains an open question.

I. The only other objection to the complaint pointed out by appellant is the absence of averment that the notice of the adoption of the primary resolution of necessity was given as provided by § 2 of the act. It is averred that notice for proposals for making the improvement, and notice of the filing of the engineer's report, and of the time and place for a hearing of grievances, were given as required by sections one and seven of said act, and that the trustees' committee and the board of trustees, met at the time and place designated in such notice, and heard all grievances presented, and after due consideration the board adopted the engineer's report, and made the assessments of benefits, assessing against appellant's said property the sum of $ 117. With respect to municipal improvements, it is settled in this, and most other states, that the subject-matter being clearly within the jurisdiction of municipal legislative bodies, jurisdiction over the persons of those affected by an improvement will be sufficiently obtained if, at any step in the proceedings, and before the assessments are made, an opportunity is afforded to all persons feeling aggrieved to make whatever defense they may have against the assessment of their property. It has therefore been held that notice of the resolution of necessity, the purpose of which is merely to invite the views and counsel of the property owners, is not essential to jurisdiction, or to the validity of an assessment. Hughes v. Parker, 148 Ind. 692, 48 N.E. 243; Barber, etc., Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436; Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 681, 23 N.E. 788. The complaint is not subject to the objection urged.

II. As a part of the finding and judgment is the following, in substance: That there is due the plaintiff on the assessment sued on $ 117, and the further sum of $ 25 attorney's fees, and that the same is a lien on the real estate described; that by reason of the fact that said real estate is a part of the right of way and station grounds of the defendant, a railroad corporation, and a common carrier of freights and passengers and of the United States mail, and is so used, and is necessary to the proper and successful operation of its railroad and conduct of its corporate business, and that the lien can not be foreclosed against the same, and the property sold for the payment of said judgment, without interference with the rights of the public,--the plaintiff is therefore entitled to a personal judgment against the defendant for the sum so found due, and judgment is rendered accordingly.

Appellant insists that the court had no power to render a personal judgment against it for said assessment, and that its motion to modify the judgment in this respect should have been sustained. This insistence we cannot allow. When the public grants a franchise to a railroad corporation, and gives to it the right of eminent domain, it does so upon the theory that benefits will be returned. Hence it is that the public has an interest in the exercise of such a franchise that a court of equity, in the absence of a specific statutory provision will not suffer disturbed, when private right may find another adequate remedy. Accordingly it has been held that such property of a railroad company as is essential to the operation of the road, and in carrying forward its corporate purpose, will not be...