Porter v. The Midland Railway Company

• Decision Date: 18 October 1890
• Docket Number: 14,498
• Citation: 25 N.E. 556,125 Ind. 476
• Parties: Porter v. The Midland Railway Company
• Court: Indiana Supreme Court

25 N.E. 556

125 Ind. 476

Porter v. The Midland Railway Company

No. 14,498

Supreme Court of Indiana

October 18, 1890

From the Montgomery Circuit Court.

Judgment affirmed.

L. J Coppage, for appellant.

H Crawford and T. F. Davidson, for appellee.

OPINION

Elliott, J.

The material questions in this case arise upon the ruling of the trial court awarding the appellee judgment upon the special verdict. The facts contained in the verdict are these: On the 2d of April, 1872, the board of trustees of the town of Ladoga adopted a resolution licensing the Anderson, Lebanon and St. Louis Railroad Company to construct a railroad track along a street in the town, upon which street the appellant was an abutting owner. In the year 1873, the company named constructed a grade along the street, and for that purpose dug excavations and built embankments. The grade was visible and was part of a continuous line. In November, 1875, the company named conveyed all its property and franchises by mortgage, and this mortgage was duly foreclosed by a decree of the circuit court of the United States for the District of Indiana. On this decree a sale was made to the appellee and a deed duly executed to it in July, 1885. The grade remained without substantial change until September, 1887, and the appellee constructed its track upon the grade during that month.

The appellant as the owner of the fee had a right of action against the appellee. It is now well settled by our own decisions that the owner of the fee of a street may maintain an action against a railroad company which wrongfully builds its track upon the street, and the great weight of modern authorities sustains this doctrine. Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Terre Haute, etc., R. R. Co. v. Scott, 74 Ind. 29; Burkam v. Ohio, etc., R. W. Co., 122 Ind. 344, 23 N.E. 799. Vide authorities cited, n. 1, p. 528, Elliott Roads and Streets. Where there is no element of waiver or estoppel, the owner of the fee may maintain ejectment, or he may have equitable relief by injunction in the proper case. Terre Haute, etc., R. R. Co. v. Rodel, 89 Ind. 128; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446 (vide authorities cited p. 582); Midland R. W. Co. v. Smith, 113 Ind. 233, 15 N.E. 256. But where he stands by without objecting until the rights of the public and of third parties have intervened, it is held, upon the ground of public policy, that he can not recover the possession of the land nor maintain injunction. Midland R. W. Co. v. Smith, supra; Indiana, etc., R. W. Co. v. Allen, supra; Louisville, etc., R. W. Co. v. Beck, 119 Ind. 124, 21 N.E. 471; Midland R. W. Co. v. Smith, post, p. 509; Strickler v. Midland R. W. Co., ante, p. 412. In this case the grade constructed in 1873 was notice to the appellant that the appellee's predecessor claimed the right to construct a railroad track upon the street, as the licensee of the municipal corporation, for the character of the work was such as to impart notice. Paul v. Connersville, etc., R. R. Co., 51 Ind. 527; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; Indiana, etc., R. W. Co. v. McBroom, 114 Ind. 198, 15 N.E. 831. The appellant, therefore, had notice as early as 1873 that a railroad company intended to construct a track upon the street, and knew that it had prepared the grade for that purpose, and it is too late for him to maintain ejectment or secure an injunction. His silence and inactivity did more than impair his remedy, it destroyed his right of action for possession as well as for injunction.

It does not follow that because the appellant can not sue for an injunction, or maintain an action of ejectment, he is remediless; on the contrary, as is clearly indicated in several cases, and directly decided in one case at least, he may maintain an action for damages. Indiana, etc., R. W. Co. v. Allen, 113 Ind. 308, 15 N.E. 451; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581, 15 N.E. 446; Strickler v. Midland R. W. Co., supra. In Indiana, etc., R. W. Co. v. Allen, supra, it was said: "We do not controvert the doctrine that acquiescence will not preclude a recovery of damages; that we affirm to be the true doctrine. Unless prolonged until the statute of limitations has run, an action for damages will lie; after that period, however, it is conclusively presumed that the damages have been paid." (Vide p. 584). This doctrine is sustained by the cases of Rusch v. Milwaukee, etc., R. W. Co., 54 Wis. 136, 11 N.W. 253; Evans v. Missouri, etc., R. W. Co., 64 Mo. 453. If the appellant had brought this action before the statute of limitations had run, we have no doubt that he would be entitled to recover damages for the injury to his property.

It is evident, from what has been said, that the only right of action which the appellant is in a situation to assert, is one for injury to property. He can not recover the property itself, nor can he have an action on a contract, for there is no contract; so that if he has any right of action at all, it must be for the injury to him as the owner of the fee. This injury consists in making a wrongful use of the land, and his right of action is for the damages resulting from that wrong. It was, therefore, correctly held in Strickler v. Midland R. W. Co., supra, that the six years' statute is the one which rules the case.

It can not be successfully contended that each day's continuance of the wrong gave a fresh cause of action, for the occupancy of the street was for a permanent purpose, and of this purpose the acts done under the license from the town gave full notice. Where there is an occupancy of a street for a permanent purpose, as for the purpose of building and operating a railroad, the abutting owner can not maintain an action for each day's occupancy. The case is entirely different from one wherein the wrong is a mere fugitive or temporary trespass, or a mere entry, without color of right for the work undertaken was in its nature permanent, and there was color of right under the license granted by the municipality. If a railroad company could be sued for each day's occupancy the burden imposed upon it would be a grievous one, which no...