Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Hays
| Decision Date | 11 June 1896 |
| Docket Number | 1,762 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HAYS ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 30, 1896, Reported at: 17 Ind.App 261 at 268. Motion to vacate judgment overruled March 18 1897.
From the Jay Circuit Court.
Affirmed.
N. O. Ross, J. J. M. LaFollette and O. H. Adair, for appellant.
C. Corwin and J. M. Smith, for appellees.
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 of the appellant's right of way. The improvement was made by grading and graveling the center of 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 $ 1,460.00, 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 ninety 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 can not 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. Philadelphia, etc., R. R. Co., 33 Pa. 41; The Junction R. R. Co. v. City of Philadelphia, 88 Pa. 424; Detroit, etc., R. W. Co. v. City of Grand Rapids, 28 L. R. A. 793; 63 N.W. 1007; Chicago, etc., R. W. Co. v. City of Milwaukee, 28 L. R. A. 249, 62 N.W. 417; Allegheny City v. Western Pa. R. R. Co. 138 Pa. 375, 21 A. 763; Sweaney v. Kansas City R. W. Co., 54 Mo.App. 265.
On the other hand there are cases which seemingly support a contrary doctrine. Chicago, etc., R. W. Co. v. Chicago, 90 Ill. 573; City of Chicago v. Baer, 41 Ill. 306; Chicago, etc., R. R. Co. v. City of Moline, 41 N.E. 877; Northern, etc., R. W. Co. v. Connelly, 158 Ill. 64, 10 Ohio St. 159; Burlington, etc., R. R. Co. v. Spearmen, 11 Iowa 112; In re. North Beach, etc., R. 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 thereto and egress therefrom 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. Section 4290, Burns' R. S. 1894.
Whatever the rule may be elsewhere it is settled in this State that the right of way of a railway company may be assessed for the improvement of highways. Peru, etc., R. R. Co. v. Hanna, 68 Ind. 562.
This court in the case of Lake Erie, etc., R. W. 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, etc., R. W. Co. v. State, ex rel., 8 Ind.App. 377, 35 N.E. 916; Lake Erie, etc., R. W. C. v. Bowker, supra; Louisville, etc., R. W. 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, Burns' R. S. 1894. The existence of such order it is claimed is essential to the jurisdiction of the board, and that without it the whole proceedings are void.
The statute requires the board to "declare by resolution the necessity therefor." In this case the board...
To continue reading
Request your trial
-
Pittsburg, C., C. & St. L. Ry. Co. v. Hays
... ... by John Hays and others against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for ... City of Philadelphia v. Pittsburgh, etc., R. Co., 33 Pa. St. 41; Junction R. Co. v. City of ... ...